- The Washington Times - Thursday, October 27, 2011

If there is one fact that government witnesses testifying before Congress on the failed half-billion-dollar loans to bankrupt Solyndra LLC have made clear, it is that they have not passed the bar exam.

Often in response to tough legal questions on whether a loan restructuring to Solyndra broke the law, witnesses from the Energy and Treasury departments have repeatedly told House Energy and Commerce Committee members that they’re not lawyers.

“I’m not a lawyer, sir. I relied on counsel’s judgment on that,” former Department of Energy loans chief Jonathan Silver testified in one such exchange at a hearing last month.

But the “I’m not a lawyer” response, uttered by witnesses in one form or another at least nine times during two recent hearings, may not be heard next time. That’s because the committee is shifting its investigation to focus on the lawyers who reviewed the restructuring deal, which ultimately put the taxpayers’ $535 million loan guarantee in line behind $75 million from two private investors if the company collapsed.

Because Solyndra filed for bankruptcy protection last month, the restructuring deal means the investors will be paid before the government. The justification for the restructuring was outlined in a legal memo by Susan Richardson, chief counsel for the Energy Department’s loan program.

In comments during a C-SPAN interview Wednesday, Rep. Cliff Stearns, Florida Republican and chairman of the committee’s investigation panel, said he hoped Ms. Richardson would testify by next week.

Energy Department spokesman Damien LaVera said Thursday that the department was working with the committee “to schedule a hearing with the appropriate legal officials.”

Late Thursday, Mr. Stearns announced that Energy Secretary Steven Chu would testify before the committee Nov. 17.

“We appreciate Secretary Chu making himself available and look forward to hearing his testimony on [the Energy Department’s] involvement with the half-billion-dollar loan to Solyndra,” he said. “We hope he will finally provide answers about why [the Energy Department] consciously ignored the direct warnings from their own experts that Solyndra was doomed to fail and granted the loan to Solyndra.”

It’s clear that Ms. Richardson’s memo will figure prominently in any upcoming hearings, as Republicans say the legal opinion on the Solyndra loan restructuring clashed with the Energy Policy Act of 2005.

“Putting the taxpayers at the back of the line behind private investors in the event of a liquidation or bankruptcy is not only a deviation, it’s apparently unprecedented,” Rep. Fred Upton, Michigan Republican and chairman of the committee, said at a hearing this month.

Energy Department law states that government loans “shall be subject to the condition that the obligation is not subordinate to other financing.”

A copy of a Feb. 15 memo by Ms. Richardson that justified restructuring the Solyndra loan said the deal was permitted because the “subordination” applies to the issuance of the loan, not a restructuring.

“We do not believe it can reasonably be read either as a requirement that the guaranteed loan may never be subordinated, or as a requirement that the guaranteed loan may never be subordinated,” the memo states.

“A continuing prohibition would, in our view, be inconsistent with the statutory scheme as it would preclude the use of a common restructuring strategy for a financially distressed borrower,” the Richardson memo stated. “Investors are unlikely to make an equity investment in a distressed company on commercially acceptable terms.”

The memo cited statutory language that the loan agreement “shall contain such detailed terms and conditions as the Secretary determines appropriate to protect the United States in a default.”

Under the restructuring, two private investment groups infusing $75 million into Solyndra — one group with ties to Oklahoma billionaire George Kaiser, the other with ties to Wal-Mart’s Walton family — were given priority to be repaid before taxpayers if the company collapsed.

The memo was released after a hearing this month in which two Treasury Department officials were called to testify. Democrats on the committee criticized the fact that Energy Department officials had not been invited to testify at that hearing to explain the memo, which they called on Republicans to release.

During the hearing, Mr. Upton said he had not read the memo but that after consulting with the Republican counsel on the committee, “It is clear to me that this is a key memo.

“It is clear to me that the Department of Energy violated the law when they agreed to subordinate the taxpayers’ money to private investors, some of whom appear to have been heavy contributors to President Obama’s campaign,” Mr. Upton said.

Mr. Silver, who resigned after his testimony in a September hearing, had testified that officials viewed the restructuring as the best opportunity to keep Solyndra running so taxpayers could recoup their money. When asked about the restructuring and the legal opinion justifying it at last month’s congressional hearing, Mr. Silver said he wasn’t a lawyer.

“You didn’t have a very good lawyer,” replied Rep. Phil Gingrey, Georgia Republican. “And I think you got bad advice.”

According to the Energy Department’s website, Ms. Richardson joined the department as chief counsel to its loans office in 2009 from private practice at the Washington law firm of O’Melveny & Myers. From 1994 to 1998, she was associate general counsel for the Overseas Private Investment Corp.

Bob Rizzi, a Washington lawyer who worked with Ms. Richardson in private practice, described her in an interview Thursday as a “great corporate transactional lawyer.”

“I’ve worked closely with her on a number of corporate deals,” he said. “Some of the deals we have worked on involved restructuring and other complex corporate transactions.”