American Elephants

DOJ Bullies Have Beaten Gibson Guitars Into Submission by The Elephant's Child

When the cats away, the mice will play. Congress is out of town, minds firmly fixed on politics, campaigning and general vote-getting. Good time for the executive branch to slip through things that might otherwise annoy Congress.

So the Department of Justice, ( increasingly a reason to fire the Obama administration), announced yesterday that the Gibson Guitar Corporation had accepted a deferred prosecution agreement regarding the Department of Justice’s  allegation that Gibson imported wood for its guitar frets in violation of the Lacey Act. The Lacey Act is a federal law that makes it a crime to import flora or fauna in violation of a foreign nation’s laws. As a result, the Department of Justice will not charge Gibson with a crime (except for maybe a tax offense, left open) for “illegally importing ebony from Madagascar and ebony and rosewood from India” through a German intermediary “from June 2008 through September 2009.” Gibson, in return must pay a $300.000 fine, make “a community service payment of $50,000 to the National Fish and Wildlife Foundation” bulk up its internal procedures, and generally grovel whenever the government asks it to do anything related to this matter.

Heritage points out several features of the agreement worth mentioning:

First: The government acknowledges in the agreement that “certain questions and inconsistencies now exist regarding the tariff classification of ebony and rosewood fingerboard blanks pursuant to the Indian government’s Foreign Trade Policy.” In other words, the government acknowledges that the relevant law—not just our law, but a foreign nation’s law—is unclear. Ordinarily, that conclusion should lead the government to drop any charge that Gibson violated the law, especially the law of a foreign nation.

Second: The government’s case is no better regarding Madagascar. The agreement cites (1) “Madagascar Interministerial Order 16.030/2006,” and (2) some other equally well-known “laws”—all of which may have been written in a foreign language. The agreement alleges that Gibson received a translation (from whom is not stated) of the first whatever-it-is saying that “‘fingerboards’ are considered ‘finished’ under Madagascar law” and therefore may be exported. But, according to the government, “trip organizers”—who, for all we know, could have been Gibson’s trip companions “Greenpeace and other non-profit environmental groups”; the agreement does not say—informed Gibson that “under the organizers’ interpretation of [Madagascar’s] 2006 Interministerial Order, the harvest of ebony was illegal and that instrument part ‘blanks’ would be considered ‘unfinished’ and, therefore, considered illegal to export.” Put aside the obvious problems with government’s reliance on the opinion by the trip’s “organizers” of a foreign order written in a foreign tongue—Gibson was given conflicting views of the law. That should have ended the matter entirely. Remember: Gibson imported wood, not heroin.

Third: The press release is full of all of the chest-puffing that we are accustomed to see the federal government display: The government has enforced the law, prosecuted the wicked, protected the environment, cured the common cold, etc. But the government has made a federal case out of “fretboards” or “fingerboards.” …

Fourth: Gibson must pay the National Fish and Wildlife Foundation $50,000 for its (or its designee’s) use for the environment. Really? Fines paid to the government go into the U.S. Treasury and belong to the public; the NFWF is a private organization. In essence, the taxpayers are subsidizing the NFWF.

Why does it matter that Congress is out of town?  Why, because there are currently two bills before Congress that would have the result of repealing criminal provisions of the Lacey Act.

On the part of Gibson, they probably made a dollars-and-cents decision. An imperial administration can pretty much beat any poor sucker who gets in their crosshairs into submission. Continue reading


Are the Feds Going to Confiscate Musicians Guitars? by The Elephant's Child

Tennessee Senator Lamar Alexander is concerned about the summer concert season. Nashville is home to one of Gibson Guitar’s factories, and to many of the famed bands and stars  who use Gibson Guitars. According to the Examiner.federal agents are poised to seize the instruments made by Gibson Guitars, theoretically because the wood used in Guitar frets may not meet Indian and Madagascar environmental law, although the governments of India and Madagascar insist that they do.

Gibson Guitar factories in Nashville and Memphis were raided by armed federal agents nine months ago supposedly for violating the Lacey Act; and though they have been operating in a sort of legal limbo since last August, no formal charges have been forthcoming.  The Justice Department’s Environment and Natural Resources Division (whose career staff is notorious for pursuing a green agenda)  and senators are working to solve the situation. Alexander and Senator Ron Wyden (D-OR) met with representatives from the music industry, the wood import business and environmental and conservation groups on Thursday to settle on a solution. Alexander said:

“We held this roundtable because instrument makers like Gibson Guitars in Tennessee are an important part of our music industry, and if the Lacey Act as written is keeping them from being able to get the wood they need to make instruments, we need to make every effort to fix the regulation,” said Alexander.

“The law was intended to prevent illegal logging and protect U.S. jobs that are threatened by illegal logging, it was never intended to seize instruments or wood products that were obtained prior to the passage of the Lacey Act amendments in May 2008 because they were made from imported wood—and when laws have unintended consequences, Congress has a responsibility to promptly make changes,” he added.

This is a very odd case. It seems like an example of government gone wild, or at least government asserting their power— because they can. The Justice Department is already in difficult territory with their failure to prosecute the voter intimidation case of the Black Panthers, and Congress is pursing the Fast and Furious gun-running case. There is a significant amount of over criminalization going on.  We have a number of departments in the Executive Branch that seem to be out-of-control, and acting illegally. I don’t know how this will play out, but it is very worrying.

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