Kerry Ad Falsely Accuses Cheney on Halliburton

Summary

A Kerry ad implies Cheney has a financial interest in Halliburton and is profiting from the company’s contracts in Iraq. The fact is, Cheney doesn’t gain a penny from Halliburton’s contracts, and almost certainly won’t lose even if Halliburton goes bankrupt.

The ad claims Cheney got $2 million from Halliburton “as vice president,” which is false. Actually, nearly $1.6 million of that was paid before Cheney took office. More importantly, all of it was earned before he was a candidate, when he was the company’s chief executive.

Analysis

A Kerry ad released Sept 17 once again attacks Cheney’s ties to Halliburton, implying that Cheney is profiting from the company’s contracts in Iraq. That’s false.

The ad isn’t subtle. It says, “As vice president, Dick Cheney received $2 million from Halliburton. Halliburton got billions in no bid contracts in Iraq. Dick Cheney got $2 million. What did we get?” And it implies that Cheney lied to the public when he said in a TV interview that “I have no financial interest in Halliburton of any kind.”

But as we document here, Cheney has insulated himself financially from whatever might happen to Halliburton. The Kerry ad misstates the facts.

$2 Million

To start, the $2 million figure is wrong. It is true that Cheney has received just under $2 million from Halliburton since his election, but nearly $1.6 million of that total was paid before Cheney actually took office on Jan. 20, 2001. Saying Cheney got that much “as vice president” is simply false.

We asked Cheney’s personal attorney to document that, and he did, supplying several documents never released publicly before:

• A Halliburton pay statement dated Jan 2, 2001 shows just under $147,579 was paid that day as “elect defrl payou,” meaning payout of salary from the company’s Elective Deferral Plan. That was salary Cheney had earned in 1999, but which he had chosen previously to receive in five installments spread over five years.
• Another pay statement dated Jan. 18 shows $1,451,398 was paid that day under the company’s “Incentive Plan C” for senior executives. That was Cheney’s incentive compensation — bonus money — paid on the basis of the company’s performance in 2000. Cheney had formally resigned from the company the previous September to campaign full time, but the amount of his bonus couldn’t be calculated until the full year’s financial results were known.

Cheney’s personal financial disclosure forms, together with the pay statements just mentioned, show that Cheney has received $398,548 in deferred salary from Halliburton “as vice president.” And of course, all of that is money he earned when he was the company’s chief executive officer. Cheney was due to receive another payment in 2004, and a final payment in 2005.

The Kerry ad isn’t the only place the false $2 million figure appears. The Democratic National Committee also gets it wrong on their Web site. The dates of the Halliburton payments don’t appear on Cheney’s personal financial disclosure form from 2001, and the DNC assumed — incorrectly as we have shown — that all the 2001 payment were made after he took office.

Deferred Salary

The $398,548 Halliburton has paid to Cheney while in office is all deferred compensation, a common practice that high-salaried executives use to reduce their tax bills by spreading income over several years. In Cheney’s case, he signed a Halliburton form in December of 1998 choosing to have 50% of his salary for the next year, and 90% of any bonus money for that year, spread out over five years. (As it turned out, there was no bonus for 1999.) We asked Cheney’s personal attorney to document the deferral agreement as well, and he supplied us with a copy of the form, posted here publicly for the first time.

Legally, Halliburton can’t increase or reduce the amount of the deferred compensation no matter what Cheney does as vice president. So Cheney’s deferred payments from Halliburton wouldn’t increase no matter how much money the company makes, or how many government contracts it receives.

On the other hand, there is a possibility that if the company went bankrupt it would be unable to pay. That raises the theoretical possibility of a conflict of interest — if the public interest somehow demanded that Cheney take action that would hurt Halliburton it could conceivably end up costing him money personally. So to insulate himself from that possible conflict, Cheney purchased an insurance policy (which cost him $14,903) that promises to pay him all the deferred compensation that Halliburton owes him even if the company goes bust and refuses to pay. The policy does contain escape clauses allowing the insurance company to refuse payment in the unlikely events that Cheney files a claim resulting “directly or indirectly” from a change in law or regulation, or from a “prepackaged” bankruptcy in which creditors agree on terms prior to filing. But otherwise it ensures Cheney will get what Halliburton owes him should it go under.

Cheney aides supplied a copy of that policy to us — blacking out only some personal information about Cheney — which we have posted here publicly for the first time.

Stock Options

That still would leave the possibility that Cheney could profit from his Halliburton stock options if the company’s stock rises in value. However, Cheney and his wife Lynne have assigned any future profits from their stock options in Halliburton and several other companies to charity. And we’re not just taking the Cheney’s word for this — we asked for a copy of the legal agreement they signed, which we post here publicly for the first time.

The “Gift Trust Agreement” the Cheney’s signed two days before he took office turns over power of attorney to a trust administrator to sell the options at some future time and to give the after-tax profits to three charities. The agreement specifies that 40% will go to the University of Wyoming (Cheney’s home state), 40% will go to George Washington University’s medical faculty to be used for tax-exempt charitable purposes, and 20% will go to Capital Partners for Education, a charity that provides financial aid for low-income students in Washington, DC to attend private and religious schools.

The agreement states that it is “irrevocable and may not be terminated, waived or amended,” so the Cheney’s can’t take back their options later.

The options owned by the Cheney’s have been valued at nearly $8 million, his attorney says. Such valuations are rough estimates only — the actual value will depend on what happens to stock prices in the future, which of course can’t be known beforehand. But it is clear that giving up rights to the future profits constitutes a significant financial sacrifice, and a sizable donation to the chosen charities.

“Financial Interest”

Democrats have taken issue with Cheney’s statement to Tim Russert on NBC’s Meet the Press Sept. 14, 2003, when he said he had no “financial interest” in Halliburton:

Cheney (Sept. 14, 2003): I’ve severed all my ties with the company, gotten rid of all my financial interests. I have no financial interest in Halliburton of any kind and haven’t had now for over three years. And as vice president, I have absolutely no influence of, involvement of, knowledge of in any way, shape or form of contracts led by the Corps of Engineers or anybody else in the federal government.

Shortly after that, Democratic Sen. Frank Lautenberg released a legal analysis he’d requested from the Congressional Research Service. Without naming Cheney, the memo concluded a federal official in his position — with deferred compensation covered by insurance, and stock options whose after-tax profits had been assigned to charity — would still retain an “interest” that must be reported on an official’s annual disclosure forms. And in fact, Cheney does report his options and deferred salary each year.

But the memo reached no firm conclusion as to whether such options or salary constitute an “interest” that would pose a legal conflict. It said “it is not clear” whether assigning option profits to charity would theoretically remove a potential conflict, adding, “no specific published rulings were found on the subject.” And it said that insuring deferred compensation “might” remove it as a problem under conflict of interest laws.

Actually, the plain language of the Office of Government Ethics regulations on this matter seems clear enough. The regulations state: “The term financial interest means the potential for gain or loss to the employee . . . as a result of governmental action on the particular matter.” So by removing the “potential for gain or loss” Cheney has solid grounds to argue that he has removed any “financial interest” that would pose a conflict under federal regulations.

Conflict of Interest

It is important to note here that Cheney could legally have held onto his Halliburton stock options, and no law required him to buy insurance against the possibility that Halliburton wouldn’t pay the deferred compensation it owes him. Both the President and Vice President are specifically exempted from federal conflict-of-interest laws, for one thing, as are members of Congress and federal judges.

And even federal officials who are covered by the law may legally own a financial interest in a company, provided they formally recuse themselves — stand aside — from making decisions that would have a “direct and predictable effect on that interest.” And Cheney says he’s done just that.

Cheney says he takes no part in matters relating to Halliburton, and so far we’ve seen no credible allegation to the contrary. Time magazine reported in its June 7 edition that an e-mail from an unnamed Army Corps of Engineers official stated that a contract to be given to Halliburton in March 2003 “has been coordinated w VP’s [Vice President’s] office.” But it wasn’t clear who wrote that e-mail, whether the author had direct knowledge or was just repeating hearsay, or even what was meant by the word “coordinated,” which could mean no more than that somebody in Cheney’s office was being kept informed of contract talks.

Indeed, a few days later it was revealed that Cheney’s chief of staff Lewis “Scooter” Libby was informed in advance that Halliburton was going to receive an earlier contract in the fall of 2002 — to secretly plan post-war repair of Iraq’s oil facilities. But being informed of a decision after it is made is a far cry from taking part in making it. And according to the White House, Libby didn’t even pass on the information to Cheney anyway.

So to sum up, this Kerry ad’s implication that Cheney has a financial interest in Halliburton is unfounded and the $2 million figure is flat wrong.

Media

Watch Kerry-Edwards Ad: “Cheney Halliburton”

Supporting Documents

View Insurance policy purchased by Cheney to ensure he’ll be paid what he’s owed by Halliburton.

View Gift Trust Agreement irrevocably assigning after-tax profits of the Cheney’s stock options to three charities.

View Halliburton form signed by Cheney in 1998, choosing to receive 50% of his 1999 salary and 90% of his 1999 bonus money as deferred compensation to be spread over five years.

View Jan. 2, 2001 Halliburton pay statement showing $147,579 in deferred compensation paid to Cheney on that date.

View Jan. 18, 2001 Halliburton pay statement showing $1,451,398 in “incentive plan” bonus money paid to Cheney on that date.

View Congressional Research Service opinion on deferred compensation and stock options.

Sources

“Vice President Dick Cheney discusses the war with Iraq, the economy and other topics,” NBC News “Meet the Press” 14 Sep 2003.

Jack Maskell, “Official’s  Stock Options In and Deferred Compensation From a Corporation as a “Financial Interest” of an Executive Branch Official in Such a Corporation,” Memorandum , American Law Division, Congressional Research Service, 22 Sep 2003.

US Code of Federal Regulations,TITLE 5, CHAPTER XVI–OFFICE OF GOVERNMENT ETHICS, PART 2640–INTERPRETATION, EXEMPTIONS AND WAIVER GUIDANCE CONCERNING 18 U.S.C. 208 (ACTS AFFECTING A PERSONAL FINANCIAL INTEREST) 5CFR2640.103(b)

Timothy J. Burger and Adam Zagorin, “The Paper Trail: Did Cheney Okay a Deal?”, Time magazine, 7 June 2004: 42.

Larry Margasak, “Cheney never heard plan to give work to Halliburton for rebuilding of Iraq,” The Associated Press 16 June 2004.