Published on November 15th, 20130
Barbara F. Olschner: Obamacare on Trial
Was there is fraud in Obama Care? A fictional account from a lawyer’s perspective.
Setting: Oval Office, Washington, D.C.
Present: President Obama, Members of White House Staff, and Lawyer from private law firm.
Legal Fraud: Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.
Fraud By Omission: Suppression of a material fact, which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.
President Barak Obama:
June 2009: “That means that no matter how we reform health care, we will keep this promise to the American people: If you like your doctor, you will be able to keep your doctor, period. If you like your health-care plan, you’ll be able to keep your health-care plan, period. No one will take it away, no matter what.”
April 2010:“And if you like your insurance plan, you will keep it. No one will be able to take that away from you. It hasn’t happened yet. It won’t happen in the future.”
Lawyer: “Thank you for retaining our firm, Mr. President. How may I help you?”
Chief of Staff: “Well, I think it would be better if I answer that. It’s because of your expertise in defending clients for fraud. It’s the Obama mess over Obama care about the…well, the Obama Lie.”
President: “It is not a lie; I did not tell a lie to them-the American people.” President wags finger in face of Chief of Staff.
Lawyer: “That sounds a lot like Clinton, ‘I did not sleep with that woman.’”
President: “Yes, but he was under oath, so it was perjury.”
Lawyer: “Correct, so it was a crime, but he also said the same lie to the American people. Mr. President, did you ever try a lawsuit?”
Obama: “Uh, I can’t recall the specifics of all my endeavors, at this time.”
Lawyer: “Well, I’ve defended many clients from claims of fraud, and pretty much, folks don’t like liars. The first thing to consider, legally, is the type of fraud: was the lie intentional, reckless, or innocent.”
Advisor: “It’s not a lie! You know we can get other lawyers in here to advise us who are not so insulting to the office of the President.”
Lawyer: “Well, a lie is really just a factual statement, meaning a thing is untrue. But I could also use fib, falsehood, fabrication, deception, dissemble, misinform, mislead, prevaricate, tall tale, whopper-“
Obama: “Could we just call it a statement?” while taking out a square of grape bazooka gum.
Lawyer: “Sure. The problem ‘statement’ is: “If you like it, you can keep it.” Is that statement true? I’ll answer for you, No.”
Obama: “But it was true, with the caveat that it was subject to the requirements of the ACA.”
Lawyer: “Did you know that at the time you made those statements, from 2009 to 2010?”
Counselor: “Don’t answer that, Mr. President. Don’t Answer!”
Obama: “Relax, she is working for me and can’t disclose confidential information.”
Counselor: “Yes, but someone might write a tell all book, or we could be subpoenaed in an impeachment trial. Don’t answer that!”
Obama: “Alright, suppose I did know.”
Lawyer: “If your intent was to cause an action by others, and if, in fact they did act and were harmed, that’s fraud.”
Obama: “And suppose I didn’t know.”
Lawyer: “Then, the issue is whether you reasonably should have known. You’re a Harvard
educated lawyer, a former law professor, not a peanut farmer. It would be a hard sell that you were in the dark on your signature piece of legislation.”
Obama: “And, of course if I knew it wasn’t true and said it anyway, that’s intentional fraud?”
Lawyer: “Correct. But remember, a lie is not necessarily fraud. If I say I can fly, that’s a lie. But it’s not fraud, unless someone relies on that statement and are damaged.”
“Here’s a good example: Insurance companies sold polices offering a one-time premium. But the “fraud” was they didn’t tell customers the “one-time premium” was dependent on interest rates. When interest rates bottomed out, as they did in the 80’s, customers had to pay more or lose their policies. The alleged fraud was the companies suppressed the fact about interest rates because if people had known the truth—“
Obama: “They wouldn’t buy the policies.”
Lawyer: “Correct. The insurance company that I worked for paid millions and tried to stiff me on my bill.”
Obama: “That doesn’t seem fair.”
Lawyer: “Well, that goes with the turf when representing fraud clients. If they lie to others…you know how that goes. But an important question is whether the fraud was intentional or reckless, which one court said was the difference between being mean and stupid. Not a distinction you would want to try and explain to the American people.”
Obama: “If this was a lawsuit, what would be your advice?”
Lawyer: “Statements made after ObamaCare became law, might be fibs, but it’s not fraud. The statements made before it was law—well, that’s a problem. You can’t take back the statement, but you can fix any damages your statement caused. Fix the problem with people losing their coverage. Make your statement true now. Then, you have, no harm—
Obama: “So, no foul. Hmmm, interesting.”
Advisor: “Thank you for coming. We’ll get back to you if we need anything further.” Advisor and Lawyer walk out of Oval Office.
Lawyer: “And where do I send my bill?”
Advisor: “What bill? You were never here.” Advisor closes Oval Office door.
Lawyer: “I’m pretty sure the NSA knows I was here.”
About The Author: Barbara F. Olschner is a native of North Carolina who moved to Birmingham, Alabama, to create the Olschner & Hart law firm. After thirty years of practice, she moved permanently to Santa Rosa Beach, Florida, where she ran for the Second Congressional District and lost. She is also on Facebook as “The Reluctant Republican” and on Twitter at “thereluctantrep“.