Interview With A Whistleblower: "The Spirit of Resistance is Alive and Well"
By Barry Sussman
Interview with whistleblower Matthew Hutcheson.
Matthew Hutcheson, famed 401(k) fiduciary expert, was convicted at trial of federal wire fraud charges in April, 2013. Many believe, and evidence strongly suggests, that Hutcheson's federal charges were brought about as a direct result of his whistleblowing activities regarding a "skim machine" at the Department of Labor (DOL). Previous articles examined in depth Hutcheson's whistleblowing and subsequent retributive prosecution at the hands of Obama's Department of Justice (DOJ).
Hutcheson's prosecution is just one example of the administration's merciless war on whistleblowers. It is unfortunately part of a wider pattern of extreme measures being directed by Attorney General Eric Holder against whistleblowers and others deemed to be enemies of the Obama White House. Hutcheson recently agreed to be interviewed in an effort to fully explain the events surrounding his whistleblowing and subsequent prosecution.
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Matthew Hutcheson was a renowned 401(k) expert prior to his whistleblowing and ensuing federal conviction
Q. You have been referred to as a "famed" 401(k) fiduciary advocate, yet found yourself facing serious federal charges after calling attention to wrongdoing at the Department of Labor. What evidence do you have that your prosecution was related to your whistleblowing?
A. In 2007 I was asked to testify before Congress about the economics of 401(k) and pension plan investments. A few months later, an investigative reporter from Bloomberg Television contacted me about participating in the creation of a documentary. The documentary would cover my research and testimony before Congress, along with the stories of real people impacted by Wall Street's skimming machine. The finished documentary, which won an Emmy for award winning investigative television, can be watched here:
After a few months of research by the Bloomberg reporter, he called me to convey certain findings. The first was that several lobbying organizations in the investment and 401(k) industry had engaged in what he called a "whisper campaign" against me to neutralize my influence with Congress on the media.
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A reporter from Bloomberg Television first alerted Hutcheson that he was being targeted by elements within the Department of Labor
He also conveyed the previously unthinkable, that the Department of Labor was resisting Congress' full transparency initiative due to its loyalty to Wall Street. He further conveyed that he suspected that the 401(k) industry was more closely "associated" with the Department of Labor than was appropriate. At the time, I could not contemplate what that might mean.
I later learned that the Department of Labor was complicit in a scam that permitted certain lobbying groups to skim (steal) money from pension plans and use that money to buy influence with the Department of Labor. It becomes clear why the Department of Labor was engaged in a "whisper campaign" against me a year ago; I was threatening future private sector opportunities for Labor's leadership. That is the scandal I blew the whistle on.
I did not feel right about what the Department of Labor was doing. I objected to it in the most fundamental terms and at my most basic visceral level of conscience. After nine months of resisting the Department of Labor's misguided demands that I participate in its abuse of the businessman who sponsored the Employee Stock Ownership Plan (ESOP), a "final straw" moment occurred. That moment occurred in 2010. The Department went too far by asking me to file a false declaration to the judge in case number 2:2010cv09662 with the intent to falsely preserve the case from being dismissed.
The Department of Labor sent a threatening letter and then began legal proceedings against me in retaliation. The letter stated that the Department had launched an "official" investigation against me; its only cause was because I would not capitulate. Later, in 2011, the Department of Labor told the press that it had only launched the investigation at that time, nearly two years later, to coordinate its story with an unrelated matter that it intended to use as leverage against me, and to raise a smoke screen to cloak the 2010 matter. The unrelated matter is discussed in greater detail in the PBS Frontline documentary notes.
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PBS Television's Frontline was preparing to air a documentary supporting Hutcheson, but appears to have been dissuaded from doing so
Q. At the time you identified the misconduct at the DOL, did it ever occur to you that you would be facing retribution?
A. Never. My relationship with the Department of Labor had been very good until 2009, and I believed the matter could be worked out without me going to the media; without me making a public statement, or seeking to humiliate the Department of Labor. I was wrong. In hindsight I should have gone public in the biggest possible way. I advise all other whistleblowers to not give the federal government any credit. The government is no longer trustworthy. If someone discovers the government's involvement in something improper, shout it from the rooftops as loudly as you can.
Q. How did you feel about America's system of justice prior to your charges and how have your feelings changed as a result of your experience in federal court?
A. Until recently, I have always respected the government. I love the United States of America and the ideal it beacons to the world is worth protecting. The indictment process was disturbing. A person should be notified if they are being investigated so they can at least tell his or her side of the story. Federal prosecutors are notorious for targeting a person, and then engineering charges tailor made specifically for that person. If that person does not know what the prosecutor is telling the grand jury, whether it is true or not, there is nothing that person can do. Once the indictment is made, his or her reputation is forever destroyed. I've learned that is the point. If the government can just bring an indictment, it will exact enough damage in most cases to take the whistleblower out. But the federal government does not quite grasp that the spirit of resistance (Thomas Jefferson) is alive and well in the United States. The U.S. Attorney's office has become the enemy of "We the People." No one respects the Department of Justice anymore. It has brought it upon itself. It is so sad, and disappointing.
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Hutcheson's experience with the federal criminal justice systems leads him to believe that Jefferson's "spirit of resistance" is very much alive
Q. How has your experience changed the way you view other federal prosecutions?
A. When I hear of a federal indictment, I immediately think of injustice. Prior to my indictment, I used to think, "oh, that person must have done something; that person must be guilty. Why else would the government spend all of those resources pursuing that person?" But today, I think there is something nefarious going on; something dark, politically motivated, a vendetta by someone in power, silencing someone the federal government fears. That is proving to be true more often than not.
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The FBI, on orders from the DOJ, routinely contrives loosely defined "crimes," allowing targeted individuals to be mercilessly prosecuted
I truly believe all Americans, especially those who are engaged in sophisticated, innovative economic engineering, are in grave danger of being indicted and prosecuted for reasons that have nothing to do with the concocted charges. Prosecutors know that if private sector innovation cannot be easily comprehended by governmental employees, a jury will not likely understand, making the chance of conviction very high. So prosecutors pursue its enemies who are engaged in very technical, sophisticated transactions and projects. It is a convenient way to cloak fake charges behind a complex fact set. That posture against the American people is more like cold war Russia than it is our beloved United States of America.
Q. How do others perceive your legal problems? Do you believe they understand what has gone on behind the scenes, or do they simply assume you "must have done something?"
A. Many presume I have done something wrong. However, many know my character and know my heart, and know that I would never do something I knew was wrong. In fact, I was trying to do something noble and honorable. Those who think I did something wrong do not understand all of the other sub-texts; the motives of the government if you will, to neutralize my voice. That is the problem whistleblowers have. Those on the outside do not understand what is really going on behind the scenes. All they see or hear is the accusation and the government's carefully crafted narrative. It is never, ever, that simple. There is always so much more to the story, and often the story is tangled in twists, turns, complexities, nuances, etc. Those are the very scenarios the prosecutor will pursue, because truth is stranger than fiction, and it is difficult for outsiders, and sometimes even family members, to grasp what is really driving the prosecution. I will say this, I've learned that most of the time, the motive driving the prosecution is not what the prosecution says it is. My true friends have stood by me through thick and thin, and I cannot say how thankful I am for that.
Q. Recent news stories have revealed a wider war on whistleblowers. When did it first occur to you that your case was part of a larger pattern and how has this shaped your view of your prosecution?
A. I published five animated PowerPoint presentations on YouTube in 2012; long before the IRS targeting scandal broke; long before the AP news scandal; long before Benghazi. However, there was the Fast and Furious Scandal, the Secret Service prostitution scandal and others, but I still felt alone. In the introductory PowerPoint presentation to the five presentations previously mentioned, I refer to myself as a whistleblower. That's exactly what I was. But I did not have any idea how malignant the epidemic had become until April of this year (2013).
Now I know I am almost a statistic, as sad as that sounds. There are not hundreds of others like me, but thousands. Where is the Department of Justice getting all of its funding to attack honorable citizens who simply call out improper behavior by their own government? The Department of Justice needs to have its funding adjusted downward in a significant way. What is going to happen when every American is in prison? Only a revolution awaits. We will not tolerate this abuse anymore. Enough is enough.
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Victims of the war on whistleblowers recognize the Department of Justice to be the administration's main weapon against dissent
Q. Were you confident that you would prevail at trial, or did you feel as the process went on that the result was all but a foregone conclusion?
A. I begged my court appointed attorneys to have the judge let me line up witnesses who could help me. He waited until a few weeks prior to trial, and by then it was too late because the judge would not grant a continuance despite my counsel admitting they were not ready for trial (on the record).
More importantly, one of the prosecution's key witnesses was somehow able to illegally sell my home out from under me without due process. That is another sub-text that introduces other complexities into the narrative that are beyond the scope of this interview. However, because my home was illegally sold to another party, my family and I were forced out under a 24 hour eviction order of the sheriff. My documents and records were scattered to several different storage units, garages of friends; my work papers were basically lost. I repeatedly explained this reality to my court appointed legal counsel. Since I could not speak to witnesses who may have duplicate copies of my exonerating work papers, the government had hog-tied me and was holding my head underwater. There was nothing I could do to defend myself. So I was forced into trial essentially naked, and I was crucified. Only recently, after the conviction, did my wife locate the exonerating documents (in a box marked "kitchen" of all things).
Q. How do you assess your chances of obtaining post-conviction relief?
A. It is hard to say. I have been granted a new attorney, who I am told is very good, and will fight like a warrior for me. That provides some comfort. We will just have to let it play out, but I do still believe in the justice system, believe it or not. Yes, there was a failure, but I believe the failure will be corrected. The judge is an honorable man, and he is smart, and I believe with competent counsel the true narrative can now be properly conveyed to him.
Q. Have any steps been taken to address the wrongdoing your whistleblowing initially identified?
A. Not a thing. The Department of Labor buried it, and clearly intends to keep it buried.
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Evidence of wrongdoing exposed by whistleblowers is quickly sent down a modern day version of Orwell's memory hole
Q. It is assumed that you now see how easy it is for the federal government to convict an intended target. What else have you learned about the federal criminal process?
A. The first thing is the secretive dialogue between court appointed counsel and the prosecutor. Things I "purportedly" said to my counsel; i.e. representations, etc., ended up in motions to the judge without my prior review. Those representations were against my interest and lead me to believe court appointed counsel were working behind the scenes with the prosecutor. There is no other logical explanation, other than pure incompetence. The other thing I learned was that my court appointed counsel could not understand the truth. The truth was complex, sophisticated and multi-layered with concepts in actuarial science, advanced finance and economics, pension law and investment mathematics. Therefore, instead of telling the correct narrative to the jury, legal counsel concocted an even more difficult to understand defense based on a "theory." It was an embarrassing mess. I probably would have fared better had I defended myself.
The other thing that really bothers me is that at no time did the federal government ever ask to sit down with me to discuss why they feel I broke the law. It was all cloak and dagger, hush-hush, tip-toe around me, all the while carefully crafting a narrative with the news media that I could not rebut because all actions against me were being taken secretly. The whole thing was a star-chamber trial.
Q. Do you believe that cases like yours have had a chilling effect upon prospective whistleblowers? What steps would you like to see taken to protect whistleblowers?
A. Yes, I do. It is clear to me that aggressive, hostile, and malicious prosecutions are the government's method for scaring would-be whistleblowers into silence. As a society, we are just a hair's width away from becoming a full blown police state; the evidence is how the government is treating citizens of the United States of America.
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Despite numerous promises to the contrary, Obama has displayed an avidity to savagely crush dissent
It is difficult to know what can be done to protect whistleblowers. At a minimum, I think grand juries should be required to interview the person the government is trying to indict. Secret grand juries, where only the prosecution's side is heard, seems outrageous to the average person. That needs to change. Also, there needs to be an easier way for whistleblowers to make their voices and stories heard. Most agencies have Inspectors General. However, in my case, the Department of Labor has not had an Inspector General for years, which explains why my pleas for help went unanswered.
Perhaps a one page disclosure statement should be given to grand juries explaining that there are always two sides to every story (or even three or four sides!), and that they are going to be asked to make a decision based on one side; the prosecution's side, and that the likelihood the prosecution will manipulate them into issuing an indictment is very high. Accordingly, statistically, many innocent people will be falsely indicted. The grand jury should also be told what the effects of an indictment are upon families, children, neighbors, etc. An indictment is devastating and causes so much devastation by itself, whether the person ends up being convicted or not. Grand juries must understand the devastating impact of their decision.
Hutcheson has now joined the swelling ranks of administration enemies who have seen the DOJ loosed upon them by what may very well be the most vindictive regime to ever occupy Washington. Prosecuting people like Hutcheson serves a dual effect. It dissuades other would-be whistleblowers and dissenters by serving notice that Eric Holder and his legion of lackeys stand ready to perniciously punish those targeted by the administration. But perhaps more important, it transforms these targets into convicted felons, thus delegitimizing their claims and deflecting attention away from the wrongdoing that whistleblowers like Hutcheson first identified. The DOJ's ability to control how the story is reported all but assures that a convicted person's whistleblowing will be sent down the memory hole, while their "crimes" will remain front and center.
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Attorney General Eric Holder is overseeing what many consider to be the most vindictive and pernicious DOJ in U.S. history
Hutcheson's interview reveals deep insight into exactly how the system of justice in the U.S. has been hijacked and used as a weapon of political oppression. He understands that the tactics employed against him are hardly unique and that his case is simply one of many such travesties playing out in federal court on a daily basis. The idiom "don't make a federal case out of it" is rapidly losing its meaning as even the most innocuous, well-intentioned conduct can cause one to be hauled into federal court on serious charges. The government's ubiquitous use of federal prosecution may be working against it, however, as a growing number of people begin to recognize federal trials for the scripted theater they have become. Meanwhile, the disgraceful war on whistleblowers continues and citizens like Hutcheson face tremendous peril in return for their laudatory acts of courage.
Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial Misconduct. Worked as a legal commentator during the Clinton impeachment debacle helping educate the public about federal prosecutors and their outrageous abuse of power. Active in the field of credit and collections for over 30 years before a federal trial, conviction and subsequent imprisonment. Now an outspoken critic of the United States Department of Justice and its proclivity towards mass incarceration. Current Criminal Justice Editor at Online Publishing Company Ltd., www.onlinepublishingcompany.info.