Timothy Geithner’s vs. Bernard Kerik’s ‘Hiccup’ – Whose is Worse?

by Anthony K. Modafferi III, Esq.

As an attorney and personal friend of Bernard Kerik, the former New York City Police Commissioner, the recent spectacle surrounding Obama’s nomination for Secretary of Treasury, Timothy Geithner, illustrates the overwhelming press bias in favor of Democrat appointees and politicians.

Prominent Democrats – including the President-elect – have labeled Geithner’s failure to pay taxes as a “hiccup,” or “honest mistake,” while excoriating Kerik for allegedly failing to pay nanny-taxes included in a charging instrument that puzzled the trial judge for its failure to abide by basic rules of pleading and which the prosecutor re-wrote to “fix” his sophomoric “mistakes.” The press has regurgitated the government’s charges without any investigation into the circumstances giving rise to these baseless charges. Instead, the press labeled Kerik a “disgrace” while, at the same time, preferred to describe tax-expert Geithner’s own failure to pay taxes as a “hiccup” or an “honest mistake.”

By failing to identify and investigate the real reasons for Kerik’s indictment, the press has instead been a willing ally of a government that the press warns we should distrust and, by so doing, enabled that government to perpetrate a grotesque injustice. The press routinely engages in such conduct when the object of the prosecution is a Republican. Never mind due process or the rule of law. We expect this conduct from the Democrat politicians who label the Republican Party “the party of corruption,” while ignoring the fact that three of their own Democrat governors have been disgraced for outrageous conduct and refusing to censure their own senators and members of the House for despicable conduct as well.

However, what’s truly outrageous is the silence by those who should be screaming the loudest, the people who believe and understand the challenges this country faces – those who know Kerik and how he put his life on the line for New York City and for our country for 30 years.

Some more examples illustrate this double standard.

On December 17, 2008, the Chicago Sun Times reported that Mr. Eric Holder, President-elect Barack Obama’s Attorney General Designee, had omitted a potential engagement to conduct an independent investigation for the Governor of Illinois on the vetting package submitted to the Senate Judicial Committee. Two days later, Mr. Holder allegedly submitted supplemental responses correcting the omission, and also included hundreds of other minor additions and clarifications to his employment record, "honors and awards," speaking appearances, media interviews and other press conferences. Should Eric Holder be charged criminally for one or more omissions from the initial completed package?

Ironically Mr. Kerik, who had been nominated for Secretary of the Department of Homeland Security

by President George W. Bush in 2004, withdrew before he could be confirmed. Moreover, it appears that Kerik never completed the vetting package because he declined to accept the position just seven days after the President nominated him. Yet, the New York Prosecutor presumed to usurp the power of the President by charging Kerik with lying to federal investigators during his vetting process. Not because he submitted a completed vetting package to the government as did Mr. Holder, but because of an allegation that he did not disclose background information during a conversation with someone about a job that he did not accept.

The President-elect nominated Timothy Geithner as the Treasury Secretary who, surprisingly, failed to pay a significant sum in taxes to the IRS for a number of years. Furthermore, while neglecting to pay these taxes, Geithner accepted compensation from his employer, the International Monetary Fund, intending to offset the taxes he had not paid. Geithner’s explanation – that he was not aware of these problems until November 2008 when his nomination to the Obama cabinet was imminent - is implausible.

Geithner also appears to have employed a domestic servant that at some point became out of status – in other words, an illegal alien. According to press and media reports, Mr. Geithner also took taxable deductions for his children’s summer camp which, allegedly, he was told was inappropriate.

So here’s my issue: as the Treasury Secretary nominee, it is without doubt that Mr. Geithner’s knowledge and understanding of the federal tax laws is far more comprehensive than Mr. Kerik’s, a career police officer. That being said, will Mr. Geithner be held to a higher standard of accountability regarding his failure to pay taxes that by all accounts, he knew he owed?

The answer is no.

Contrast this with the Kerik situation. Kerik was charged criminally with several tax-related counts that experts in the accounting field, including both active and retired IRS agents, have deemed preposterous. The indictment alleges that in 2002, Kerik failed to account for income in the amount of $20,000 and should have paid taxes on that amount. Keep in mind this was a year in which it was reported that Kerik paid more than $300,000 in taxes alone. The IRS would never prosecute such a case criminally.

Will Mr. Geithner be charged criminally for his “mistakes” which demonstrably appear to be willful and intentional attempts to evade federal tax liability? Will the same prosecutor in the Southern District of New York pursue charges against Mr. Geithner?

The answer, again, is no.

The press is biased against Mr. Kerik and his former boss, Rudy Giuliani. In Mr. Kerik’s case, the New York Times spent five days from sun up to sun down attempting to locate and interview Kerik’s nanny. This time, unlike the Kerik nomination, Mr. Geithner is the “favored boy” and we can be sure that the press will do everything in its power to protect him from the same scrutiny that Mr. Kerik endured during his own nomination process. That scrutiny ultimately resulted in Mr. Kerik’s indictment for conduct stemming from a prior plea, ignoring the Justice Department’s own policy of refusing to charge conduct related to a prior state action because it implicates the Double Jeopardy Clause of the Constitution. The ridiculous nanny-tax charge which, while killing the prospects for Kimba Wood’s own attempt to become Attorney General during the Clinton years, did not stop her appointment as a federal judge in the same court now trying to criminalize Kerik.

In a nutshell, for more than four years now, state and federal prosecutors have been on a reckless crusade to keep Kerik under permanent indictment. In their zeal to destroy the man – and more so his former friend and colleague Rudy Giuliani – they have stretched the laws, bent the rules, violated attorney/client privilege, deceived a judge and illegally leaked privileged information to the press and media. A prosecutor in the state case even went so far as to order a subordinate to lie under oath before the Bronx Grand Jury in an attempt to secure a conviction against Kerik. Why hasn’t the press investigated Michael Caruso’s claims in a pending federal case that the New York Department of Investigation, headed up by partisan Democrat Rose Gill Hearn, demanded that he lie to the Grand Jury investigating Kerik?

Instead, in a federal indictment that a first year law student would know was defective as a matter of law, the prosecutors nevertheless filed charges that were time-barred, and violated United States Justice Department guidelines. This raises serious questions as to why the charges were brought in the first place. The press should be asking who in the Department of Justice signed off on this indictment. You have to wonder why Rev. Al Sharpton, Congressman Charles Rangel, Gov. Paterson’s Chief of Staff or Gov. Elliot Spitzer were not charged for similar conduct.

But we know the answer to why Kerik was set-up. Kerik was, and is, a scapegoat for the anger of those who couldn’t stand Giuliani and were fearful that he would be the Republican nominee for President. It was Kerik’s loyalty to Giuliani and his reputation as a no-nonsense manager who stepped on toes to get things done. It was his outspoken and unbending support for President Bush, the invasion of Iraq and the war against terror.

But I will always remember Kerik, to quote the New York Times, as a “comic book hero come to life”, who time after time throughout his career saved lives and helped others and, most importantly, helped a city and a nation heal after 9/11.

Unfortunately for Mr. Kerik and for our country, Kerik’s “hiccup” is our loss.