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Too Big To Jail

                The late, great Lewis Grizzard attended the University of Georgia with a man named “Joe,” where they developed a lifelong friendship.  Joe grew up poor in rural Southwest Georgia.  He was only a boy when he found the body of his dead father who had taken his own life with the family shotgun.  Joe became the man of the house to his mother and two sisters.  Despite a learning disability and poverty, Joe made his way to the University of Georgia.  Afterwards, as Grizzard wrote, “[Joe] finished school and went to Vietnam. He was even shot at a couple of times, but they missed.”

                When Joe arrived stateside from the war he was literally spat on by a protester at the airport.  But, Joe loved his country, and he loved his hometown.  He returned to UGA to study pharmacy and then, without a second thought, moved back to rural Southwest Georgia to be a part of the town that was so much a part of him.

                Grizzard summed up his friend this way:

                “He lives the solid rural life and helps the sick folks and tries to make his community a better place to live, and in between all that, he raises hogs and children and breaks his butt on something that helps people who have a difficult time helping themselves.”

                Unfortunately for Joe, he became successful.  He ran his pharmacy and took care of sick people.  He bought a farm.  He started other businesses.  He continued to raise money for charity.  He helped start the local Boys and Girls Club.  He gave people second chances.  He gave jobs to the jobless.  He helped his employees get better educations.  He even got a young lady without family support into pharmacy school.   He wanted to make sure that other people from his town could rise above their circumstances like Joe was able to do.  He was the first person the Chamber of Commerce ever named “Citizen of the Year” more than once.  After September 11, 2001, after the Army told him he could not reenlist because of his age, Joe decided that he would wear an American flag pin on his shirt every day.  And he did.  Still, Joe was successful.

                He financial success was enough to catch the eye of a “low-level employee” in the state prosecutor’s office that monitored Medicaid payments.  Joe’s pharmacy was located in one of the poorest congressional districts in the country and, as such, a large number of the prescriptions he filled were for Medicaid patients.  In 2005, that state prosecutor showed up at Joe’s pharmacy with multiple armed law enforcement officers, in vans, cars, and black SUV’s and a subpoena to obtain every prescription Joe had ever filled.  Joe complied with the subpoena but, to do so, he was forced to shut down his business for nearly a month so his employees could make copies.

                Months passed and then years passed.  After going through several “experts,” the low-level prosecutor finally determined that Joe had over-billed Medicaid.  She contacted the local District Attorney to see if he would help her prosecute the case.  The local District Attorney refused.  He didn’t believe she had a case.  She contacted other state prosecutors in her agency.  Apparently, they agreed with the assessment of the local District Attorney.  Desperate, she turned to a low-level Assistant U.S. Attorney who was stuck in a rural U.S. Attorney’s Office and needed that “big fish” to fry in order to justify his job.  So, he agreed to help go after Joe.

                After many more months, the two low-level prosecutors finally revealed to Joe that they believed that he had over-billed Medicaid for a specific drug given to infants who were suffering from a flu-like disease—one that would be fatal if left untreated.  In the overwhelming number of true, intentional, fraudulent health care schemes, the government is billed for patients who never existed and for drugs that were never dispensed.  This wasn’t the case with Joe.  Rather, they showed that a few of the legitimate prescriptions filled for actual ailing infants in his impoverished community, had been billed in error.

                Upon receiving this information, Joe reviewed this documentation and determined that his billing department had in fact incorrectly billed for the drug.  He acknowledged that an unintentional mistake was made by his own “low-level employees.”  Joe admitted to this mistake, apologized and paid all the money back that he was accused of overbilling.

                Financial restitution wasn’t good enough for the low-level state prosecutor and the bored-out-of-his mind low-level member of Department of Justice.  Joe was too successful for any war veteran in rural South Georgia.  He shouldn’t be so successful. This had to be a CRIME.  This had to be fraud—a knowing and intentional act on Joe’s part.  They needed Joe to be guilty of a crime to justify the cost of the taxpayer funded investigation that had been launched against this man.  Apologies weren’t going to be enough.  Accidents couldn’t happen.  These low-level government workers had to be right.   Somebody had to go to jail.

                Consistent with his charitable nature, Joe paid for every member of his staff to have independent counsel.  He didn’t want anybody to get into trouble.  This American flag-wearing veteran always believed the buck stopped with him.  Not a single witness testified that Joe instructed them to do anything wrong.  In fact, the billing clerk admitted that she was the one who entered the mistaken billing information for reimbursement.  Yet, a federal Grand Jury indicted Joe on 70 counts of Medicaid fraud.  Out of the approximately 500,000 billings for that particular drug, over a ten-year time frame that were reviewed during the course of a three-year of investigation, the prosecutors found only 70 errors and indicted Joe for each one.

                An accusation of fraud by the federal government has a viral effect.  It takes away your honor.  It takes away your “friends.”  It takes away your business.  It causes stress and helplessness and wreaks havoc on your health.  It also takes away your money.  The government, after all, has the unlimited resources the taxpayers provide.  Joe did not.

                Joe’s trial began in October of 2008–almost exactly one month to the day after Lehman Brothers fell and the “rich” became this country’s worst enemy.  Joe’s attorneys admitted in the opening statement that Joe did not hide or dispute the fact that mistakes had been made.  Joe had nothing to hide.  Instead of presenting evidence of a conspiracy, the Abbott-and-Costello duo of prosecutors presented evidence of Joe’s success.  Instead of presenting evidence of intentional fraud, the low-level representatives of the federal government presented evidence that Joe once bought a boat and had great seats at University of Georgia football games.  They even argued that Joe hired too many people and paid them too much.  Yet, not a single witness testified that Joe told them to do anything wrong.  Rather, they all universally admitted that their billing system was chaotic and disorganized.  The employees had made mistakes.  They apologized.  Under oath.

                After a weeklong trial and thousands of pages of documents, it took a jury of Joe’s “peers” only a few hours to return a “not-guilty” verdict on Count 1– the conspiracy charge.  The low-level prosecutors, after all, had never identified a co-conspirator.  After a moment of relief, Joe stood and listened to the jury foreman began the long process of reading “guilty” verdicts on each and every one of the remaining counts.  Democrats don’t seem to realize that class warfare and vilification of people based on income has very real, non-political consequences.

                During the appeals process, Joe lost it all.  His pharmacy license was stripped.  The bank came for the farm.  The money had long been spent on lawyers.  Additionally, Joe was diagnosed with the rare myelodysplastic syndrome—the same disease Good Morning America’s Robin Roberts fought and survived after receiving very aggressive medical treatment.  The type of medical treatment not available in prison.  Joe lost his appeal.  Verdicts of juries are rarely overturned.

                In March of this year, Joe’s wife said goodbye to him the second time (the first was when he went to Vietnam) as he reported to a federal prison facility to begin serving his sentence.  Perhaps the saddest moment occurred when this 67-year-old, broke, sick man had to turn over that American flag pin he continued to wear through this entire ordeal.  He had worn that flag everyday for 12 years.  Always the patriot, he never lost faith in the country he was shot at for—even though it had taken everything away from him.  A few weeks later, my daughters went to the same prison to visit their Granddaddy–Joe.

                I tell this personal story about my father-in-law to say that I have watched scandal after scandal break over the past week with a different perspective than most.  The facts surrounding Benghazi were intentionally covered up to protect political aspirations—the American people were defrauded.  The IRS has admitted to deliberately targeting conservative groups and pro-Israel organizations for scrutiny.  The agency admits that it illegally released confidential tax-related information to media groups.  Then there is the Department of Justice.  This is the Department that has determined the “policy” for use of drone strikes against American citizen and the Department that put my father-in-law in prison for a mistake.  This department subpoenaed confidential information from an American news gathering organization.  Unlike Joe, these were intentional acts of someone.

                I’m sure there will be hearings.  Resignations will be accepted.  A few people may be fired (if they don’t qualify for the unbelievable protections afforded to civil servants).  However, regardless of who is in the White House, it is these “low-level” people who actually run our federal government and seem to be above the law.  These “low-level” bureaucrats typically survive elections—just as Joe’s two prosecutors still have their jobs to this day.  Some of these folks are promoted to run the Obamacare enforcement arm of the IRS.  Clearly, the Obama administration borders on incompetent when it comes to management and many of these recent scandals are of its own making.  However, whatever happens as a result of all these scandals, conservatives will squander a historical moment for change if focus remains solely on Obama.  Regardless of who is in the White House, or which party holds the majority in Congress, as long as the size and scope of government grows, the number of low-level government employees who have the power to strip Americans of your life, liberty, and pursuit of happiness grows with it.  This is an opportunity for true conservatives to prove, beyond a reasonable doubt, that we are safer when we have a smaller, limited government with fewer low- level people of any kind.

If this is only about Obama nothing will change.  As long as we have the current size of our federal government, the IRS may target you.   As long as we have the current size of our government the DOJ may subpoena your records.  And as long as we maintain the behemoth government, you, the individual, are meaningless.  If YOU make an honest mistake, you go to prison.  If THEY intentionally violate the law, they get to apologize (and get promoted).  They are truly too big to jail.  It is truly too big.

NOTE: “Joe’s” name was changed in this essay due to the fact he is currently serving his sentence in the federal prison system.

Patrick Millsaps is a partner at the Hall Booth Smith law firm.  He is the former Chief of Staff to Newt Gingrich’s presidential campaign.  Follow him on Twitter @PatrickMillsaps

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