By Rob Roper
As most Vermonters are aware, the EB-5 scandal in the Northeast Kingdom involved Jay Peak, Bill Stenger and Ariel Quiros. The alleged crimes involved securities fraud, misuse of $200 million, kick-back payments and a Ponzi-like scheme to defraud investors. What’s less clear is the involvement and responsibility of the state government and state officials. Attorney General TJ Donovan, a Democrat, wants to keep it that way.
Donovan’s argument is that state employees were “acting in good faith” and are therefore immune from prosecution for negligence or corruption in allowing the fraud to occur, under rules of “sovereign immunity.” Sovereign immunity is defined as “a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.”
According to a recent article by Vermont Digger, the potential crimes committed by state actors include “falsely claim[ing] the projects were audited by the state, actively promot[ing] the projects to new potential investors after state officials were made aware that investor monies had been misused, and engag[ing] in a cover-up.” Moreover, the “investors say the state ‘directly sold’ the Jay Peak projects to investors by promising faster green card approvals, quarterly reports and an assurance of compliance. Legal agreements between the state and the developers that were given to investors included guarantees that state officials would be responsible for oversight, management and compliance.” Also, they “cite an example of the state’s alleged complicity in a new affidavit from an EB-5 expert who claims that the state knew in 2012 about kickbacks to Jay Peak immigration attorneys.”
“Meh,” says Donovan. “Sovereign immunity!” No one will be held accountable. No information will be released. Move along.
Now, this is exactly why we should not want government to be in charge of, well, anything — especially things that are important, complicated, and involve lots of money. Think health care.
We so often hear that government needs to get involved with this or that because otherwise there would be no accountability to the people. But the opposite is true. If crimes are committed by actors in the private sector, they are investigated, prosecuted, and, if found guilty, punished. They are held accountable, and it is possible for the victims of negligence and fraud to exact some sort of restitution or justice. This is a powerful incentive for private sector entities to truly be responsible act to genuinely in good faith. Those that don’t are weeded out.
Not so when government is in charge.
We may never find out if the state was corrupt or incompetent in regard to the EB-5 scandal. We may never know what officials made mistakes or committed crimes. Victims may never get justice. And that’s how the system is set up to work. Is that how we want our health care system to work, too?