Reporting a Possibility of Impropriety as Actual


Last Friday, I emailed Peter Byrne to inform him of the critique I’d posted of his article which states that Sen. Dianne Feinstein committed serious ethical improprieties. Byrne wrote that Feinstein, in her capacity as chair or ranking member of the Senate Military Construction and Veterans Affairs Subcommittee, benefited two businesses in which her husband, Richard C. Blum, had a financial interest. In the critique, I argued that the evidence Byrne cites, when closely examined, either doesn’t support or in fact contradicts the allegations he makes. He disagreed with my analysis (I am simultaneously posting an updated version of the analysis to incorporate additional information he provided), and I emailed back to say I still thought the information he provided was not sufficient to support the charges leveled in his article. He responded:

There is underlaying technical material that I did not talk about directly in the story, such as DOD 1391s. Those are extremely detailed forms that list everything to do with a project (extant or upcoming) except the name of the contractor (to protect legislators from formally knowing what contracts are already let). MILCON’s leading members supervise staff that pours over those forms and some are selected for funding and others are rejected on a case by case basis.

You seem to be conflating the factual reporting in my story with some of the opinion-idiocies being promoted by right wing bloggers, who are trying to use my story to assert that DiFI was directly steering contracts to Blum or some such nonsense. Under Feinstein’s close management, as ranking member (with staff) or chair (with staff), MILCON approved or disapproved funding for hundreds of projects each year (including new projects, task orders, or project renewals, or extensions). Each of these appropriated line items generally has its own 1391 form. Now if I have a list of, say, upcoming and existing contracts in which Perini has an interest, as existing or potential contractor or subcontractor, and it says something like “missile defense at cobra dane,” then it is not impossible for me to link the listed item with a 1391 for missile defense construction at cobra dane. I have not said that I thought, or that anyone else thought, she necessarily did that. But because there was the possibilty of that happening, and because she knew it was possible, and because the amounts of money were large, and because Blum was in a controlling position in the affected firms, ethics experts opined that she had a conflict. (emphasis added.)

I think in his article he does much more than merely suggest that there was only a possible conflict of interest, but at least we have established what the story is about: the possibility of something happening. I will return to this in a moment, but first let me turn to another complaint Byrne made about my critique of his article:

You do not address the issue of Michael Klein giving lists of Perini’s contracting interests to the senator over a multi-year period, an action which may very well go beyond a simple conflict of interest. (emphasis added)

Again let me state clearly that I became interested in this story because Michael Klein, the co-founder of the Sunlight Foundation, was prominently named. So I dug into it to see for myself what this was all about, and now we know rather definitively. In his article, Byrne recounted what Klein told him about the steps Klein, as chairman of Perini Corporation, took to ensure that Feinstein would not inadvertently act on matters in which Perini had an interest. Unable to find any evidence that this arrangement was abused (and now arguing that he did not say that it was abused, though his article, in my view, pretty clearly says the opposite), Byrne now says he is reporting only what “may very well” be true. That’s a slightly different thing than, say, reporting what is actually true.

I don’t know if it will comfort any of these “right wing” bloggers (scroll down for the list at the bottom), but I had pretty much the exact same opinion-idiocy that they did. I did not get the impression from his article that Byrne was suggesting just a possibility that Sen. Feinstein might be capable of doing something wrong, but rather, that she actually had done something wrong, and had done so for years. Here, for example, are a few quotes from the piece:

Two defense contractors whose interests were largely controlled by her husband, financier Richard C. Blum, benefited from decisions made by Feinstein as leader of this powerful subcommittee.

She lobbied Pentagon officials in public hearings to support defense projects that she favored, some of which already were or subsequently became URS or Perini contracts.

…the public record shows that contrary to Klein’s belief, Feinstein did act on legislation that affected Perini and URS.

And, let’s not forget the concluding paragraph:

As the arbiter of Senate rules on ethics, it is incumbent on Feinstein to provide the public with an explanation of why she did not recuse herself from acting on MILCON details that served her financial interests, and why she failed to resign from the subcommittee after she recognized the potential for conflicts of interest, which, unfortunately, materialized in an obvious way and over a long period of time.

That doesn’t sound like he’s worried about a potential conflict, but rather one that had, to quote Byrne, “materialized in an obvious way and over a long period of time.” Now we learn that it was merely possibilities that materialized.

I will add: I think it’s an important function of the press to report on and raise questions about potential conflicts of interest. But that doesn’t give one license, absent evidence of wrongdoing, to imply, insinuate and state outright that the public record shows wrongdoing.

My apologies, by the way, to Peter Morgan and Glenn Reynolds for the title of this post — which which was inspired by their book, The Appearance of Impropriety.