{"id":54440,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/when-is-special-treatment-unequal-treatment-reflections-on-tim-geithner-michael-phelps-and-rod-blagojevich.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"when-is-special-treatment-unequal-treatment-reflections-on-tim-geithner-michael-phelps-and-rod-blagojevich","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/when-is-special-treatment-unequal-treatment-reflections-on-tim-geithner-michael-phelps-and-rod-blagojevich.html","title":{"rendered":"When is Special Treatment Unequal Treatment? Reflections on Tim Geithner, Michael Phelps, and Rod Blagojevich"},"content":{"rendered":"\n<div class=\"wp-container-core-columns-is-layout-8f761849  fl-block-columns fl-sectionWithSidebar fl-container fl-flex fl-flex-wrap fl-gap30\">\n    \n    <div class=\"fl-page-articles   fl-block-column fl-section-main fl-section-main-full-width\">\n        <div class=\"yui-g\" id=\"leftcol-module\">\n\n      <!-- Right Line of Links Section -->\n\n      <!-- BEGIN PICTURE INSERTION -->\n\n\n      <!-- BEGIN TITLE AND AUTHOR INSERTION -->\n      \n      <table>\n        <tr>\n\n          <td width=\"100\" rowspan=\"3\" class=\"wiauthor\"><a href=\"\/legal-commentary\/michael-dorf-archive\"><img decoding=\"async\" src=\"https://supreme.findlaw.com/static/f/images\/writ\/michael.dorf.jpg\" border=\"0\"><\/a><\/td>\n          <td class=\"wititle\"><h1>When is Special Treatment Unequal Treatment? Reflections on Tim Geithner, Michael Phelps, and Rod Blagojevich<\/h1><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"wiauthor\"><a href=\"\/legal-commentary\/michael-dorf-archive\" class=\"graybold\"><h2>By MICHAEL C. DORF <\/h2><br><\/a><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"widate\">Monday, Feb. 9, 2009<\/td>\n\n        <\/tr>\n      <\/table>\n\n<p>What do Treasury Secretary Tim  Geithner, Olympic gold medal record-holder Michael Phelps, and Illinois  ex-Governor Rod Blagojevich have in common?  Each has been involved in a recent scandal in which it can plausibly be  argued that his prominence led to special treatment\u2014either favorable or  unfavorable. Among other things,  Geithner failed to make timely self-employment tax payments on salary he earned  from the International Monetary Fund (IMF) Phelps was photographed apparently  smoking marijuana from a bong at a University of South Carolina party and Blagojevich  was recorded scheming to shake down various Illinois figures.<\/p>\n\n<p>Each case raises the specter of  special treatment. Were Geithner,  Phelps, and Blagojevich\u2014as well as two Obama nominees who withdrew from  consideration for administration positions because of tax issues\u2014treated better  or worse than the average person because of their prominence? Answering that question is harder than it may  at first appear, because the average person is not under consideration for a  Cabinet position, an Olympic champion, or governor of a state. Figuring out whether Geithner, Phelps, and Blagojevich  have been treated equally may thus shed light on the meaning of equality for  people in the public eye.<\/p>\n\n<div id=\"writthreetwenty\">\n          <script language=\"JavaScript\" type=\"text\/javascript\">dart_call(\"300x250\", \"ptile=2\", 0) <\/script>\n<\/div>\n\n<p><strong>Taxes and the Cabinet<\/strong><\/p>\n\n<p> Among  President Obama&#8217;s initial nominees to high-ranking positions in his  administration, three\u2014Geithner for Treasury Secretary, Tom Daschle for  Secretary of Health and Human Services, and Nancy Killefer for chief  performance officer\u2014had failed to make timely payments of one or another  tax. Daschle, in addition, had been  involved in extensive lobbying of his former Senate colleagues, although his  nomination did not technically violate the Obama policy of not hiring lobbyists  because Daschle merely worked for registered lobbyists, without directly  lobbying himself. Nonetheless, the &#8220;distraction&#8221;  of tax problems and lobbying involvement led Daschle and Killefer to  withdraw. Accordingly, I shall focus  here on Geithner, who was confirmed despite his tax issues.<\/p>\n<p>What exactly was Geithner&#8217;s main  tax problem? When he was employed by the  IMF from 2001 through 2004, Geithner&#8217;s salary was not subject to income  tax. However, in lieu of payroll taxes  (essentially Social Security and Medicare premiums) by law Geithner was  required to pay both his and his employer&#8217;s portions of the applicable self-employment  taxes. He failed to make the employer  portion of those payments, as a result of what he described as carelessness.<\/p>\n<p>When Geithner was notified that he  owed the self-employment taxes, he paid them\u2014but only for 2003 and 2004. The statute of limitations had run on his  2001 and 2002 earnings, and so Geithner apparently figured that there was no  need to pay the government for those years.  Only when his nomination for Treasury Secretary was announced, did  Geithner go back and pay the tax for 2001 and 2002. Under questioning at his confirmation hearing  from Arizona Senator Jon Kyl, Geithner insisted that he did not originally  realize that he also owed tax on the earlier years. To many observers, this explanation sounded  either disingenuous or na&amp;iumlve\u2014thus calling into question either Geithner&#8217;s  ethical fitness or his substantive qualifications for the job. Nonetheless, believing that Geithner was the  right man for a critical job at a time of crisis, the Senate overlooked this  lapse (and a few other ones), confirming him by a vote of 60-34.<\/p>\n<p>So, did Geithner receive special  treatment, and if so, especially favorable or unfavorable treatment? The answer depends on our benchmark. Consider a hypothetical former IMF employee  who made the same error that Geithner did and received the same notice of back  taxes owed. Let&#8217;s call him Joe the  Banker. Like Geithner, Joe would have  been required to pay the back taxes and interest. As with Geithner, the IRS might not have  assessed a penalty with respect to Joe.  And like Geithner, Joe the Banker could have gotten away with stiffing  the government for the years outside of the statute of limitations.<\/p>\n<p>Viewed in this way, Geithner  actually suffered a penalty that Joe would not suffer: In order to win  confirmation, Geithner judged that he needed to remedy the unpaid  self-employment taxes for 2001 and 2002.  By contrast, Joe&#8217;s relative obscurity enables him to avoid that further  back payment.<\/p>\n<p>Accordingly, absent evidence that  the IRS gave Geithner any special favors in virtue of his position at the Federal  Reserve Bank of New York, it appears that far from getting a special break,  Geithner may actually have ended up paying <u>more<\/u> than he would have paid  if he had been just an ordinary former IMF banker.<br>\n  <br>\n  Does that mean that fretting over  Geithner&#8217;s taxes was unwarranted?  Hardly. But the comparison with  Joe reveals that the real problem with the Geithner nomination is not unequal  treatment. The real problem is hypocrisy  and example-setting. With a very low  audit rate, the U.S. Treasury relies to a large degree on voluntary compliance  for collecting taxes. If a person who,  by his own admission, was at least careless in paying his own taxes, can still  be nominated and confirmed to run the department of the federal government  responsible for collecting our taxes, then there is a risk that ordinary  Americans will conclude that they too can under-pay their taxes, figuring that  they can always make up the difference in the unlikely event that they get  caught.<\/p>\n<p><strong>Should Role Models Be Held to a Higher Standard?<\/strong><\/p>\n<p>Put differently, Geithner&#8217;s tax  sloppiness (or worse) was problematic because the Treasury Secretary is a role  model for taxpayers. And we hold our  role models to higher standards than everyone else. That is, after all, what makes them role  models.<\/p>\n<p>Thus we come to the case of Michael  Phelps. In addition to his extraordinary  physical gifts, Phelps displays the admirable character trait of a phenomenal  work ethic. He would not have set  records for the most gold medals in a single Olympics and the most lifetime  Olympic gold medals were it not for his willingness to spend countless hours in  the pool, pushing his body to its limits.<\/p>\n<p>Yet in other respects, Phelps is a  callow youth. After his victories in the  2004 Olympics, he was arrested and pled guilty to a Maryland drunk driving  charge. And just last week, a British  tabloid published a photograph of Phelps apparently inhaling from a bong last  fall. As a result of that incident,  Phelps has been suspended from competitive swimming for three months, Kellogg  has decided not to renew his endorsement deal, and he may face criminal  charges. Because the average person is  not involved in competitive swimming and lacks an endorsement contract, here we  can focus on the criminal charge.<\/p>\n<p>Sheriff Leon Lott of Richland  County, South Carolina announced last week that his office &#8220;is making an effort  to determine if Mr. Phelps broke the law. If he did, he will be charged in the  same manner as anyone else. The sheriff has a responsibility to be fair, to  enforce the law and to not turn a blind eye because someone is a celebrity.&#8221;<\/p>\n<p>That certainly sounds like the  language of equality, but it is highly doubtful that Richland County would  conduct the sort of investigation that would be necessary to nail Phelps were  it not for his celebrity. Thus, like  Geithner, Phelps may be required to pay a higher price because of his status  than would, say, Joe the Pothead.<\/p>\n<p>Possession of a personal-use  quantity of marijuana is a misdemeanor under South Carolina law. The University of South Carolina, in Richland  County, has a total enrollment of about 20,000 students, most of them  undergraduates. Using conservative  estimates based on various academic studies, it is probably fair to say that in  any given month, at least ten percent of students will use marijuana at least  once. That means that there have been  thousands of instances of South Carolina students using marijuana in just the  time since Phelps raised a bong to his lips.  Is it conceivable that the Richland County Sheriff&#8217;s office plans to  pursue any of those cases with the vigor that would be required to prosecute  Phelps, interviewing witnesses and tracking down forensic evidence of ephemeral  marijuana possession?<\/p>\n<p>Viewed in this perspective, it  seems clear that to treat Phelps &#8220;in the same manner as anyone else&#8221; would mean <u>not<\/u> pursuing criminal charges, unless perhaps a police officer directly  witnessed Phelps in possession of marijuana.<\/p>\n<p>To be sure, Phelps is a role model,  but that is why it is entirely appropriate for Kellogg not to renew his  endorsement contract. With so much of  its marketing focused on young children (itself a questionable practice for the  maker of sugary breakfast foods!), Kellogg is within its rights in worrying  about backlash from customers who, in turn, worry about the message their kids  might infer from seeing a pot-smoker lionized on the cereal box.<\/p>\n<p>The three-month suspension presents  yet a different set of issues. Here the  operative question is how another competitive swimmer\u2014but not one who had won  Olympic gold medals\u2014would be treated.  Marijuana is not a performance-enhancing drug, but its use still  violates various rules. If Phelps is  receiving any special treatment\u2014either harsher or more lenient\u2014than Joe the  Swimmer, then that truly would be unequal.<\/p>\n<p>To be clear, though, the fact that  Phelps is a role model plays no legitimate role in the question of whether he  should be criminally charged for misdemeanor possession of marijuana. Sheriff Lott is right in stating that, for  these purposes, Phelps should be treated no differently from a non-celebrity  he appears to be wrong, however, in suggesting that this means Phelps should be  subject to a criminal investigation.<\/p>\n<p><strong>Was Blagojevich Denied a Fair Trial?<\/strong><\/p>\n<p>The Geithner and Phelps cases shed  light on the proper application of the moral principle of equality to  celebrities and other public figures.  Equality, it is frequently said, requires similar treatment for people  who are similarly situated. Geithner was  similarly situated to Joe the Banker with respect to his tax liability, but not  with respect to his holding office as Treasury Secretary. Likewise, Phelps is similarly situated to Joe  the Pothead for purposes of criminal prosecution, and to Joe the Swimmer for purposes  of competitive eligibility, but dissimilarly situated with respect to his  endorsement contracts.<\/p>\n<p>What about Rod Blagojevich? The Illinois now-ex-Governor boycotted his  impeachment trial (except for giving a closing statement) because he believed  that the rules of evidence adopted by the state Senate denied him a fair  trial. Blagojevich repeatedly contrasted  the impeachment procedures with the procedures our legal system requires for a  criminal trial.<\/p>\n<p>Yet that baseline was inapt. The procedural protections of the criminal  justice system are designed to minimize the risk that an innocent person goes  to prison. Incarceration is, after all,  a severe encroachment on liberty. Not  being Governor of Illinois is hardly a comparable fate. Accordingly, the right question to ask about  the Illinois impeachment procedures was not whether they were equivalent to the  procedures of a criminal trial, but whether they were well-suited to determine  the fitness of Blagojevich to continue as Governor. (As I noted in a  recent blog entry, those procedures were constitutional, if not necessarily  perfect.) <\/p>\n<p>If the criminal trial that U.S.  Attorney Patrick Fitzgerald has in store for Rod Blagojevich proves to be  procedurally unfair, then Blagojevich will have a right to complain. So far as <u>that<\/u> trial is concerned, he  should be treated no differently from anyone else. But there can be no inequality in how  celebrities and public figures are treated relative to other people, with  respect to matters that never arise for ordinary folks.<\/p>\n<p>If we are worried about equality  under the law\u2014and we should be\u2014then we should focus our attention, instead, on  the truly troubling inequities: racial disparities in charging, conviction, and  sentencing, and the dramatic effect of differences in the quality of lawyering  typically available to the rich and to the poor.<\/p>\n<hr size=\"1\">\n<p class=\"authorfoot\">\n\n<!-- BEGIN AUTHORS FOOTNOTE -->\n<a name=\"bio\"><\/a>\nMichael C. Dorf is the Robert S. Stevens  Professor of Law at Cornell University. He is the author of <i>No Litmus Test: Law Versus Politics in the Twenty-First Century<\/i> and he blogs at <a href=\"http:\/\/www.michaeldorf.org\/\" target=\"_blank\" rel=\"noopener\">michaeldorf.org<\/a>.<\/p>\n<p class=\"authorfoot\"><br>\n    <br>\n  \n<\/p>\n\n\n\n  <\/div><div class=\"was-this-helpful\">\n    <div\n            class=\"was-this-helpful__question-container\"\n            aria-labelledby=\"was-this-helpful__question\"\n            role=\"group\"\n    >\n        <span\n                id=\"was-this-helpful__question\"\n                class=\"was-this-helpful__question fl-text-lg-bold\"\n        >Was this helpful?<\/span>\n        <button\n                class=\"was-this-helpful__button fl-text-sm\"\n                aria-label=\"Yes\"\n                value=\"yes\"\n        >\n            <span class=\"was-this-helpful__button-text fl-text-bold\">Yes<\/span>\n            <i class=\"was-this-helpful__button-icon\">\n                <svg width=\"22\" height=\"22\" 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