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September 28, 2017

Governor Scott Considering EB-5 Special Prosecutor

There is a chance that Vermont will investigate itself and find out how the biggest scandal in the EB-5 program nationwide happened here under state supervision. When asked at a news conference about the idea of appointing a special prosecutor, Scott said “[It’s] the first I’d really contemplated something of that magnitude, but it could be something that could be beneficial. We’ll talk about it.”

“We want to be as transparent as possible,” Scott said of the EB-5 program. “We’ll see what happens in the near future, but I want to make sure that we release all the information we can so that … people have some trust with the government,” he continued.

Scott’s point about releasing all information possible is spot on. So far the attorney general’s office, whose role is to defend the state and state employees, has done everything it can to prevent the release of information needed to understand what happened. On the one hand the AG’s office argued that, because of a doctrine called sovereign immunity, a lawsuit against the state should be dismissed and the legal process called “discovery” can’t be used to compel the state to release its records or former state employees to give testimony. On the other hand, according to VTDigger, the AG’s office also says that 50,000 pages of state documents about Jay Peak are exempt from release under the relevant litigation clause of the Vermont Public Records. These two arguments together are a dangerous catch-22 which comes close to a cover-up: 1) litigation can’t be used to compel disclosure; 2) because there is litigation, the Public Records Act can’t be used to obtain information.

Scott also said, correctly IMO, that arguing the state is immune from lawsuits doesn’t inspire faith or trust in government. “When I read the media reports, when I hear immunity, and that’s the basis for an argument that we won’t know what’s happening — that the state is immune from litigation — that doesn’t give me a good feeling in my soul.”

The EB-5 projects under investigation are not the only EB-5 funded projects in the state. But, even projects without a hint of scandal will have a harder time raising money both because the feds are threatening to and probably will shut down the state’s authority to regulate these projects and because the Vermont brand as a good place to invest has been damaged. Most important, we can’t trust a government which hides its own mistakes and protects possible wrong doing. If you agree that we need to investigate this scandal ourselves, please write or call the Governor’s office and support the idea of a special prosecutor. If you think the legislature should be more aggressive in investigating the executive branch, please write your legislators. Posting on Front Porch Forum is effective as well.

More at Vermont Should be Investigating Itself.

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