1 - The Professional Ethics Committee For The State: Fill & Download for Free

My goals here are three-fold:To give non-Canadian readers a window into the story that’s going to determine whether Trudeau gets re-elected this year.To give Canadian readers a clearer and more complete sense of what’s happened than is easily found in any other single source.To make a few arguments re: what does and doesn’t matter here, and why. (And in the case of what doesn’t matter, outlining a theory on why some are pretending otherwise.)By necessity, what follows isn’t exactly short. But I’ve done my best to keep it as interesting and concise as possible while still hitting the above goals.For those unfamiliar with my writing, two quick notes: (1) My only interest in the partisan side of politics is deconstructing it. I have no team or tribe. (2) To ensure the most accurate takes possible, I offer rewards for all corrections.Ok, enough housekeeping.[EDIT: My original answer here was written March 1st. I returned on March 13th to make a few minor corrections and to address some common questions / objections. Where it made sense, I added edit snippets throughout the main text. Where I felt additions would be too distracting, I saved new commentary for the end. You can track all changes via the answer’s edit log.]Background ContextHere’s what brought us to today, in six bullet points:SNC-Lavalin is an EPC firm, which is to say that they’re the folks governments turn to when they want to contract out large infrastructure projects. SNC has roughly 50k employees globally, including 9k or so in Canada, with some 700 of those Canadian jobs being in the Montreal area (where SNC is currently headquartered). As recently as last October, SNC was worth about $9bn CAD, which is a fair amount for a Canadian company. If not quite a crown jewel, they were right at the top of the next tier down.SNC engaged in some shady stuff between 2001 and 2011, leading to a mire of lawsuits and investigations. As evidence of their misdeeds mounted, thousands of employees left, the board was made over, and a host of new compliance procedures were put in place to ensure that The Bad Times were behind them.In July 2012, the Harper government (the Conservative majority that preceded Trudeau’s Liberal majority) had Canada’s national contracting office revise their anti-corruption rules, with the net effect being that any vendor found guilty of certain crimes would be “rendered ineligible” for future federal contracts for a period of 10 years (reducible to 5 with good behavior). The Conservatives also made further amendments over the following years to reduce options for leniency, largely (it’s assumed) to position themselves against the Liberals, who had a party history of bedfellowing with shady corporations.For obvious reasons, SNC didn’t care much for this. They began lobbying for Canada to adopt what many other countries call deferred prosecution agreements (DPAs), which are something like plea deals, where a corporation can admit wrongdoing and submit to certain penalties and government-supervised renovations without bearing the full weight of a potentially crippling criminal conviction. (The logic here being that it’s not generally fair or useful to punish an entire enterprise for the sins of a few, especially if those few are no longer there.)The Trudeau government, which came to power in late 2015, ultimately did move forward with creating a DPA regime this past September. Unsurprisingly, SNC was quick to request an invitation for entry, arguing that they’d already done all the sorts of penance and reform that a DPA would require, and that further punishment was basically just value-destruction with no upside.The person responsible to decide on SNC’s request said no, setting off a chain of dramanoes just now reaching their crescendo.Now, before we can unpack the decision itself, we have to make a quick detour into the structure of the Canadian government — which I promise isn’t (quite) as boring as it sounds!Super Fun Learning Time!Trudeau, in addition to being Prime Minister (PM), is a Member of Parliament (MP) representing a riding in Montreal. That’s because in Canada the PM is always head of the executive branch and a sitting member of the legislature, with those two branches of government being heavily intertwined.[EDIT: Mike Hewson pointed out that all ministerial roles, including PM, can legally be filled by Senators and/or credentialed professionals, though this is only applicable in fringe cases where no suitable MP is found for a given role, which almost certainly would never be the case for PM — though this did happen twice in Canada’s early days when the sitting PM died in office.](I’m going to skip over the roles of the Queen, her Governor General, her Privy Council, and the Canadian Senate — mostly because those are all legacy institutions that hold marginal effective power today. If a PM has the backing, or “confidence”, of a majority of individual MPs, the PM effectively is the government. They own nearly all executive powers, and have enormous influence over legislation. Individual MPs have latitude to vote as they will, but those in the PM’s party will generally support the PM on all but rare “vote your conscience” items. The only part of the federal government that a majority-party PM has no real influence over is the judicial branch.)Anyway, there’s this other thing that the Harper government did (again, presumably) to brand themselves in distinction to the scandal-ridden Liberal Party of the early 2000s.In brief:The Conservatives instituted the Office of the Director of Public Prosecutions, which was to be subordinate to (but somehow independent of) the Department of Justice.The Department of Justice is headed by the Attorney General (AG), who is almost always a sitting MP selected for said purpose by the PM. In this new arrangement, the Director of Public Prosecutions (DPP) would be a civilian appointed by the sitting Attorney General.The idea here is that the DPP would be two steps removed from the PM, which would theoretically protect the former from undue political influence from the latter as far as deciding whom to prosecute.(Oh, and by the way, the Attorney General is also the Minister of Justice, which is a totally different hat that the same person always wears. It’s a confusing duality not worth getting into here, outside the basic idea that the same person is to be considered independent or not-so-independent depending on the hat they’re wearing in a given instant, which often leads to all the obvious complexities that one would expect.)Now, if you’re wondering what the division of power is between the AG and DPP on a practical level, there’s a handy guide for that very thing: Relationship between the Attorney General and the Director of Public Prosecutions.In a way, it’s the most “Canadian Politics in a Nutshell” thing you could ever read — almost 4,000 words of high-sounding rhetoric (“independence!”, “justice!”, “accountability!”) that accomplishes basically nothing outside of making the system even more convoluted and bureaucratic.Two reasons I say that:The DPP serves at the pleasure of the AG, who serves at the pleasure of the PM. While this gap between the DPP and PM probably does make it slightly harder for an otherwise good PM to improperly influence an otherwise good DPP, it doesn’t at all solve the problem that a bad PM would appoint a complicit AG, who would hire a complicit DPP.The AG can overrule and/or sideline the DPP at their own discretion, making the whole thing kinda pointless. (The AG would have to publish a memo of sorts explaining why, but that’s about it.)The obvious (if uncharitable) reading here is that Harper wasn’t all that interested in changing anything, so much as he was very interested in the optics of being seen to change things. That this chess move would also make it near impossible for his successor to reverse the changes without massive blowback (despite the changes being largely symbolic) was just an added bonus.[EDIT: For more on Harper’s presumed insincerity, see this combined with this. Also note that the current chair of SNC’s board was a key figure in Harper’s government for three years, as he’d been in several governments prior. He was expecting his calls to be answered, regardless of who was PM at the time. The idea of a Conservative government handling the SNC case any differently on a practical level seems like bad fiction to me, and I’m not sure on which grounds someone could even argue otherwise. I suspect Harper was unsurprised to hear that his trap had worked, if also a bit surprised to learn it was the SNC deferral that sprang it.]This all in mind, let’s get back to the current narrative.A Series of Unfortunate DecisionsBefore the new law even came into effect, the SNC began pushing hard for their chance at a deferral. But Canada’s current DPP, Kathleen Roussel, for reasons still unknown, decided that she was going to tell SNC “no deal”, leading her to issue an internal memo to this effect on September 4th of last year. The contents of said memo aren’t public at this point, having been private to the AG. But the fact of the decision was communicated to the PM’s office, which Trudeau and co. were, well, not entirely satisfied with. This set off a chain of contacts over the next three months or so, which broadly consisted of the PM’s office looking for the AG to either reconsider or allow an outside legal opinion.As to Trudeau’s motivations here, we can make some reasonable guesses:SNC is headquartered in Trudeau’s home city.Trudeau has an election coming up, and Quebec often plays the deciding role. SNC is a big deal to Quebec, and a conviction could cause deep harm to SNC. (At the least, the conviction would play poorly, whatever the ultimate economic consequences.)The Liberal Party has always been corporate-friendly (in ways both good and bad). In particular, they’ve largely been against value-destruction as a general principle. And Trudeau almost certainly sees refusing SNC’s request to be textbook value-destruction.Anyway, whatever his motivations or their relative weighting, Trudeau’s entreaties to Wilson-Raybould to intervene didn’t change her mind. But they did cause significant friction between them, which Trudeau was unable to keep entirely private. This was a gift that Andrew Scheer feasted upon. (Scheer is the current leader of the Conservatives, and Trudeau’s chief competition in this year’s election.)As a further gift to Scheer, Trudeau initiated a cabinet shuffle in January, which included the reassignment of Wilson-Raybould to Veterans Affairs (with additional responsibilities in National Defence). While this was met with some suspicion, the real drama began on February 7th when The Globe and Mail published a rundown of the spreading rumors. This in turn led to someone asking Trudeau a few days later if he and Wilson-Raybould were still on good terms. His answer was to the effect of “well, she’s still here working for me, which should be its own answer” — which, uh, backfired spectacularly in that she resigned a few hours later.[EDIT: The timing of an ethics probe may have also played into her timing. Also, it isn’t clear how aware Trudeau was of how Wilson-Raybould felt until the shuffle. She says it should have been obvious. He says it wasn’t. As of this time, no documentary evidence has come out proving either right or wrong.]Her resignation obviously raised even more questions, which ultimately led to her appearing before the House Justice Committee to address concerns over whether Trudeau and co. had crossed any legal lines in their lobbying.The FalloutYou can read Wilson-Raybould’s opening remarks here.Being as objective as able, I’d summarize them as follows:Trudeau and team lobbied aggressively on SNC’s behalf, and he made it clear that he was displeased with her and Roussel for being inflexible.While she didn’t accuse them of breaking any hard laws, she feels they did cross well into “inappropriate” territory, both in tone and frequency of approach, including after she’d basically said “no means no”.She feels that she was “demoted” because of her stand.All said, she seemed entirely credible. Her notes were thorough and it’s hard to imagine her having lied on any point. Even so, there’s the open question of interpretation, especially as it concerns that last bullet point.While there’s much that’s still unclear, we do know that, as far as immediate causes go, she was reassigned as part of a larger cabinet shuffle triggered by someone else’s resignation. This in mind, Trudeau’s official position has been “had Scott Brison not stepped down, Jody Wilson-Raybould would still be minister of justice and attorney general of Canada.”Now, Scheer is obviously hoping for a smoking gun that will prove this statement false. But we don’t have one yet, and it doesn’t seem all that likely to me that one exists. Could Trudeau have opportunistically used the shuffle to punish her? It’s possible. But it’s also possible that he was simply annoyed at how she handled the whole affair, leading him to decide that he’d prefer her elsewhere. I can see how either scenario could be viewed as objectionable, but I’m less sure that even the former rises to the level of criminal obstruction. Whatever Trudeau’s motivations in shuffling her, his replacement AG has so far left the existing DPP in place, which means nothing involving SNC-Lavalin has actually changed. I suppose you could still argue pettiness, but pettiness isn’t quite a crime.[EDIT: There’s also the possibility that there was no pettiness at all and that the shuffle was exactly and only for the reasons that Trudeau’s former top aide suggested. I found his testimony compelling in its own right, and I’m not sure how to adjudicate between the two accounts outside further evidence. My lean is that it feels a little unlikely for there not to have been some secondary motive, however small. But YMMV. I get into this a bit more in the edits at the end.]Anyway, all those arguments are meaningless to Scheer, mostly because it’s very convenient for him to not consider them.(Note: As I don’t want to give anyone cause to believe that I’m meaningfully biased, I’ll point out before continuing that one of the last two votes I cast was for a Conservative. And I’m fine with throwing more votes in their direction — just as soon as they stop nominating feckless lizardpeople like Andrew Scheer.)A Study in InsincerityWhile I wasn’t much of a Harper fan, my dislike for him was mostly benign. Had he won against Trudeau in 2015, I’d have made a vaguely disappointed clicking noise and then gone back to whatever I was doing. I ultimately voted against him because I was displeased with how he seemed to court the alt-right as it became clear he was going to lose — but his work as PM was largely … fine?Andrew Scheer, however, is a different category of conservative. Andrew Scheer, in a nutshell, is the kind of person you’d get if you isolated all the unhealthy impulses that Harper struggled with and then doused them with growth hormones (and then also stripped most of Harper’s policy/strategy IQ).He made a speech yesterday in response to Wilson-Raybould’s testimony, of which I’ll share just one excerpt:The testimony Canadians have just heard from the former Attorney General Jody Wilson-Raybould tells the story of a Prime Minister who has lost the moral authority to govern. A Prime Minister who allows his partisan political motivations to overrule his duty to uphold the rule of law. A Prime Minister who doesn’t know where the Liberal Party ends and where the Government of Canada begins. And a Prime Minister who has allowed a systemic culture of corruption to take root in his office and those of his most senior cabinet and public service colleagues.Now, much of this is just your run-of-the-mill disingenuous nonsense. But even in that ignoble context, I still find this one line incredible:a Prime Minister who doesn’t know where the Liberal Party ends and where the Government of Canada begins.Scheer seems to be making one of two absurd arguments here: (1) that “the government” is somehow separable from the declared values/views/proposals of those specifically elected to form said government; (2) that a majority government should set the values/views/proposals they were elected on aside so as to privilege the values/views/proposals which voters judged less attractive.I honestly don’t know which one of those ideas is less preposterous, but that Scheer would employ that kind of cutesy phrase despite it not actually meaning anything is one of many reasons I hope he’s never allowed to run anything more important than a blender. (Like, is it better if he just didn’t think through how dumb the sentence was, or if he did and said it anyway? And in the case of the latter, what does it say about the state of things if he judged this a viable tactic?)[EDIT: I don’t know how I forgot this, but by far the funniest thing here is that Harper had literally renamed the Government of Canada as “The Harper Government” in 2011! And guess who worked for Harper at the time? I wonder if he was this passionate about the distinction then?]Anyway, let’s shift from the statement to the motivation behind the statement. Who benefits from the SNC being prosecuted? Scheer! Who benefits from Trudeau being perceived as trying to interfere with this prosecution? Scheer! He wins either way. The only way he doesn’t win is if he’s forced to actually give his own opinion on why SNC does or doesn’t deserve a deferral.Lucky for him, no one is going to force him to do that — which I’d argue is symptomatic of the defining problem in this whole mess.About That DeferralBefore we move on to why Scheer is able to get away with all this, a few final words about SNC.What Scheer would prefer lost in the hubbub is that a deferral is not an exoneration. It’s a decision to choose a scalpel over a sledgehammer. While there may be times when the latter is the more appropriate tool, Scheer hasn’t really made any argument to that end (nor will he on this side of the election). His argument is simply “the DPP said sledgehammer, so Trudeau has to use the sledgehammer, which I don’t otherwise have an opinion on, but hey it does win me a lot of votes! — and PS, if Trudeau argues against the sledgehammer, it’s because he’s a coward/crook who hates Canada!”Trudeau’s response hasn’t been “c’mon, let’s let them off lightly because they’re my yacht buddies and besides I need their votes!” but rather “let’s pursue a form of justice which doesn’t introduce unnecessary collateral damage — and PS, I’d rather keep those votes thank you very much”.All else being even, it isn’t unreasonable for politicians to lean towards decisions that benefit them in the polls. But all else isn’t even here. One of these decisions is better for Canada, and one is worse.Now, is it possible that the DPP and AG actually had good reasons to stick it to SNC? Could be. The problem is that neither explained their reasons, both citing that it would be inappropriate to comment while SNC is pursuing their appeal of said decision in the courts. (This is probably a reasonable position now, though I’m less sure it’s a good reason for not having explained the decision at the time.)[EDIT: Just to be super clear on this point: the DPP’s Section 13 memo was read by the AG and no one else that we know of. The AG’s deputy didn’t read it. No one in the PM’s office read it (though Wilson-Raybould says a copy was forwarded, and then re-sent again after her conversion with Wernick on Dec 18th). SNC was never told why they were rejected. It’s all a mystery. And despite this being the first decision on this law, the AG refused to solicit an external opinion from a former Chief Justice of Canada. The AG had the right to make this set of decisions, but it’s hard to understand the logic here.]While their silence keeps us from perfect clarity, there are two dominant theories for why the DPP and AG decided against SNC’s plea:They agreed on the technical argument that SNC is legally ineligible for deferral on the explicit grounds of national economic interests (which is to say that Canada can’t use that as a factor in its judgment).They found compelling evidence that SNC hasn’t reformed and/or wouldn’t offer good faith cooperation in context of a plea.In the first case, it’s hard to argue against this reading of the law being facially correct. Even so, there are non-trivial counter-arguments: (i) Governments make this kind of self-benefiting decision all the time. The game is that you simply list reasons other than “national economic interest” when filling out the paperwork, regardless of how important said interests actually were. Now, maybe countries shouldn’t do this. But they do. And while I personally see the appeal of “let’s go by the book, even if mostly alone, even if that’s a net tax”, I don’t think people who take the other side are necessarily bad. (ii) If you have enough other reasons outside the national economic interest, it isn’t clear to me that it being helpful to the national economic interest is bad. (iii) Pragmatic flexibility is half the Liberal Party’s platform. Most voters who had an informed opinion here would have expected Trudeau to take precisely the stance he has. As such, you could argue that this is a form of mandate that he’s actually responsible to uphold.In the second case, the counter-argument is simply that over-ruling the PM’s judgment shouldn’t actually be their call, regardless of what the current letter of the law may say. Remember that this whole new structure was a Harper innovation, and arguably just a symbolic one. And while the AG has always theoretically been independent from the PM’s office, there are realist arguments for why this distinction has always been something of a legal fiction.(To be clear, we don’t know which — if either — of these arguments Trudeau is leaning on, largely because we don’t know what Roussel’s thinking was.)Formalist v. Realist(As preface for what follows, I’m not trying to convince anyone that one particular school of thought here is better or more right than the other. My point is that both are valid, in as much as they’re both logically robust frameworks that you could believe and defend without being inherently bad or crazy.)As to what I mean by the realist school, there’s a significant parallel here (in a narrow way) to the current situation in the US with Trump. When his new AG (who at the time wasn’t yet his AG, but who had been an AG before under Bush Sr.) issued an unsolicited memo outlining an argument that Trump was constitutionally OK to reassign and fire his way to outcomes he wanted without this implying actual obstruction of justice, this was widely met with cries of “treason!” — despite (a) that not being what treason means, and (b) it being a coherent and well-argued theory of law.Now, sure, you or I may disagree with this philosophically. And we may be right! But the idea that the chief executive has extraordinary and unilateral powers over nearly all executive affairs isn’t necessarily as dangerous as it may seem at first blush.Over-simplifying this a bit, imagine two competing scenarios:You restrain the executive’s powers with a complicated set of rules which are really hard to enforce with any consistency and which involve endless subjective judgment calls and which can easily be misused by a belligerent opposition to thwart the executive doing its job and which really don’t offer much effective restraint anyway.You restrain the executive’s powers with two simple levers: (a) in the case of gross judgment, you vote the executive out next election; (b) in the case of gross judgment that will cause more harm if left that long, you vote them out by pressuring your reps for impeachment / a no-confidence vote.Now, yes, there are real objections to this second system, which we’ll get to in a second. But just keep this idea of two approaches in mind as we consider a statement from Wilson-Raybould’s remarks yesterday:We either have a system that is based on the rule of law, the independence of prosecutorial functions and respect for those charged to use their discretion and powers in a particular way, or we do not.This is basically an argument for that first system — which, on its face, seems entirely reasonable. The rule of law is obviously good! And independence sure sounds like something we’d want! But step back for a minute. Let’s recall that the AG is a member of the executive (not the judiciary). They serve at the pleasure of the PM. And while we’d want the AG to have their own personal philosophy and set of legal interpretations, they weren’t elected to enact those. (In the US, the AG isn’t even an elected official at all!) And if the PM/President happens to have a different philosophy and set of legal interpretations (which they, in effect, were elected to enact), it isn’t at all obvious why they must lose in the event of a tie.By way of analogy, imagine that I’m a hiring manager working directly under the CEO in a public company. She’s the one hired by the shareholders (via the board), not me. She’s hired me to be an extension of her vision. To the degree that I do this well, all is well. But if she and I disagree on whether to hire a given candidate, my objection of “well, our bylaws say this is my call” isn’t itself all that compelling. I can go to the board and say “hey, she overruled me and our bylaws say she can’t do that”, but for the board to be fully interested they’d want me to also add “and her judgment was dangerously flawed for x reason”, else the board would just say “yes, well, we hired her and not you, so if she thinks your judgment is wrong, you’re not really fulfilling the function you were hired to fulfill, so I’m not sure why you’re still here”. What they care about most is whether the CEO displayed poor judgment relative to the standard they were hired to uphold. Whether or not bylaws were broken along the way is somewhat incidental. (While some board members care a lot about bylaws, that concern is more often about organizational dynamics than any higher theory of justice. If they like the CEO’s vision and you were hired to execute that vision and the CEO no longer feels like you are executing that vision, arguing “but the bylaws!” is probably not going to save your job.)To be ultra clear, this isn’t to say that a CEO or PM or President should be allowed to “get away” with whatever they want. There are many occasions where a PM will want something that’s not actually consistent with the platform on which they were elected (or that’s just generally bad in some moral or ethical sense) — in which case we would want the AG to object, and object strongly. But in cases where the AG loses this argument, we’d also expect them to no longer be AG thereafter, which is itself fully consistent with a healthy system provided that their exit triggers a thorough review.To use an extreme example, imagine that Trudeau tells his AG to tell her DPP to bring a Biblical flood of lawsuits against his next-door neighbor because they objected to his backyard Nickelback concert. In the realist view, it doesn’t necessarily matter if the AG says yes or no, or even whether they have the latitude to make that decision. What matters is that the public is informed so that we can all decide whether this is something we object to or not. And if we do, enough of us will call up our local MP and say “if you don’t stop this guy immediately, we’ll vote in your opponent next year”, which they’ll take as impetus to go vote the PM out. It’s no less an effective check against the PM’s abuse of power than the AG having theoretical independence. It’s just a different mechanism. Sure, there are plenty of people who prefer one mechanism over the other (which is the kind of viewpoint diversity that’s good and healthy!), but it’s hard to argue that this realist view is essentially wrong. Having an independent AG is not as structurally important as having an independent judiciary — provided that the actions of the executive are regularly and efficiently reported back to a voting public interested in holding leaders to account.And it’s exactly with this last bit that things get thorny.A RequiemThe phrase “constitutional crisis” has been bandied about a lot in both Canada and the US in recent days. Yet few of the underlying situations really seem to fit the bill, at least relative to a much deeper constitutional crisis that’s been growing unchecked for decades now.The constitution (both in the US and Canada, and in nearly every developed democracy) depends upon an engaged citizenry willing to demand and do, and a press capable of giving said citizenry the data on which they can fairly decide.The problem is that none of this works if we don’t share common ideas of which bad things are especially bad, or if we don’t all trust that at least a few impartial and talented journalists will always ask the right questions to empower useful explanations of what the executive did so that we can vote and/or pressure our reps accordingly.The challenge as I see it is that Canadians have long been remarkably ill-served by their press.Huge chunks of the country only have a Postmedia outlet as their local paper. (Postmedia being the antithesis of unbiased.)There are less sensational papers, including some large national ones. But none are especially good at what we need them to be good at. (If you can find me an explainer from a major outlet that’s anywhere near as thorough or clear as this one, I’ll send you $25. And I really don’t mean this to my own aggrandizement. I just don’t think one exists.) [EDIT: I’m happy to 10x this offer to $250 CAD just in case $25 isn’t enough of an incentive.]Most papers have dedicated an increasing amount of space to opinion pieces, which are quite good for clicks and quite bad for reader education. (They’re too short, too slanted, and they mostly use the little space they have to tell rather than show.)Most opinion columnists sell a partisan spin, which only serves to divide people into camps that inevitably grow further and further apart, thus making voter coordination across party lines difficult to impossible, all while also reducing common ideas of which things are worth coordinating on.No outlets have shown a willingness or ability to force Trudeau or Scheer to answer hard questions. (Hard to say if they’re too worried about losing access, too self-focused to coordinate, or too distracted to see the civic necessity of getting those answers.)I’ve polled a bunch of my Canadian friends — all bright young people who regularly vote and try to do so intelligently. None could really explain what happened with Trudeau and SNC, nor were they sure where to turn to rectify the gap. Plenty of stories were a search away. But which would give my friends the context required to understand Trudeau’s decisions for what they were?(That’s a non-rhetorical question, by the way. My wallet is open if I’ve misspoken here.)Why This MattersConsider this current case. It’s fine for someone to say “hey, I believe in closely following the letter of the law in all cases” and for them to thus side against Trudeau here (assuming he did in fact inappropriately pressure Wilson-Raybould). Like, I may not personally find this to be the world’s most sophisticated ideology, but the point is that we all tend to think our own judgment best, which is exactly why we do things like vote in free multi-party elections. Lots of people probably believe that an AG should be 100% independent in every way, and these voters should be welcome to form a party around that belief! But that party wouldn’t quite be today’s Liberal Party (or the Conservatives), which is something that’s been poorly explained to voters.The resulting issue is that I don’t think most people will go to the polls this October with optimal clarity in mind. While some are only ever going to vote against the candidate they hate more, many with less tribal feelings are going to be swayed by a faulty assumption that Trudeau committed some especially heinous crime here, where the reality (to the current public evidence) is more that, at worst, he and his AG were approaching from two different angles, with one of them ultimately having the trump-card of being the elected PM.There are all sorts of valid reasons why someone might vote for or against Trudeau. But I think it’s important that those votes are cast in light of what actually happened here and what it actually implies — which Scheer is actively trying to muddy and misrepresent, which the media is largely unwilling to combat, which I think is probably a bad thing?EDITS: ROUND #1Original answer written March 1st. Coming back on the 13th to get around to some needful updates/corrections/addendums.Some I’ve made above; others I’ll list here in no particular order:Trudeau and Butts have been arguing that they do believe in full prosecutorial independence. But I almost wish they wouldn’t. It’s hard to believe that they (or any PM team) totally believes it to be the best possible mechanism. I get that it’s scary to say anything else (imagine the headlines!), but this feels like a good opportunity to maybe start talking about all the stuff I’ve outlined here. (I suppose there’s a world in which they could totally believe in the idea. Butts certainly sounded sincere when he talked about it. But I just can’t get there as it concerns a PM. The sorts of people who win national elections aren’t generally the sorts to take being overruled by an underling all that well. I only leave this door open because of how authentic Butts seemed on the point.)My original piece included this note: “In the interests of precision, the most recent source I could find said that SNC has 3,400 employees in Quebec (vs. just Montreal). But as their headquarters are in Montreal, I’m assuming the bulk are there. I could be wrong.” As an update, this authoritative-seeming Globe & Mail article puts the number in Quebec at 2,500 and the number in Montreal at 700.Lots of commentary out there about just how at risk those 9,000 Canadian jobs were (and about how a federal debarment wouldn’t necessarily influence bidding on provincial/municipal projects). Though I’ve made a few edits to account for these arguments, they all seem peripheral to me for two reasons: (i) if SNC was found guilty, this would almost certainly impact their employee retention and bidding prospects in a general downstream way (we have evidence of recent press impacting them already); (ii) while most displaced workers would find new jobs, there’s no obvious replacement within Canada for SNC in terms of EPC firms. (For more, I thought this take was balanced and thorough — though I did find the final four sentences wildly upsetting.)I found this personal testimony from a current SNC exec (who lives and works in Saskatchewan) worth reading. His main point is that those trying to politicize this as some Liberal gambit to exclusively favor Quebec are overlooking that some 2/3rds of SNC’s Canadian workforce don’t live or work in Quebec. (On a political level, an SNC conviction would definitely hurt Liberals more. But his point that Trudeau is fighting for jobs that are mostly not in Quebec is certainly valid.)It still isn’t clear to me which laws/precedents are shielding the DPP’s SNC-related memo(s) from public review. The court has since ruled against SNC’s appeal, and it really feels like this whole debate would be much simpler if we all knew exactly why Roussel and Wilson-Raybould felt so strongly against SNC being eligible for a deferral. (FWIW, you can read the full text of the deferral-related legislation here.)For those asking, I’m 100% behind a thorough investigation. Let’s get lots of uninhibited testimony, and let’s subpoena relevant emails/texts, etc. Sunlight is indeed the best disinfectant. But let’s also report those findings in a cautious and contextual and non-sensational way.There’s a representative thread here on why the AG's independence is somehow sacrosanct. All such threads/articles I've come across share the same hallmarks: (i) they ignore/discount that individuals serving at the pleasure of the PM can never be truly independent; (ii) they make a weird assumption that independence is a required pre-condition to keeping a PM from interfering with prosecutions in a gross way (when a non-independent prosecutor could just as easily report the PM for gross judgment). I don’t know who is debating that bad judgment is anything other than bad, or who is suggesting we shouldn’t deter/punish it. The question is whether a certain old and imported legal doctrine is the most effective mechanism to ensure an end we all agree is important.The way most journalists use the word “political” in the phrase “political interference” is also weird! Whether interference is “political” has nothing to do with whether it’s good or bad. Take the case of weed-related prosecutions. Most would say that more political interference would have been good (in terms of directing prosecutors to not prosecute any more pot cases while new legislation was framed). The fact that Trudeau and Wilson-Raybould didn’t interfere with those prosecutions is a widespread criticism. That resources were spent fining and jailing people for trivial amounts of pot possession after Trudeau’s majority election on a “legalize pot” platform is, to many, a symptom of a flawed system, not proof of some sacred pillar doing its job. The public will was pretty clear about this (and had been for some time). Following the existing law to the letter led to an outcome that most consider bad. Governments semi-regularly opt to not prosecute existing laws for various political reasons (most of them positive/healthy). This isn’t necessarily a meaningful threat to the rule of law. (This is doubly true when it’s a new law with no prosecutorial precedent either way.)On a related note, I think “rule of law” is one of those phrases where everyone has some idea of what they mean by it, but where few actually have a robust conception that could survive a hard cross-examination. By any conception, sure, inconsistent and partial rulings are generally to be avoided. But the idea that prosecutorial independence (which just shifts who gets to make the decisions which some will find inconsistent and/or partial) has some necessary role in supporting the rule of law is curious. Taking up the example of pot again, look how many Americans were angry at Jeff Sessions for increasing the number of pot prosecutions given that this was contrary to Trump’s platform. Sessions’ decision caused all sorts of confusion/chaos, and it clearly favored one demographic of voters at the expense of another. No one is questioning that he was legally allowed to make said decision (the federal law was clear, and the restrictions placed upon on it by the previous AG were non-binding), but I’m not sure how any could argue that his decision reflects the rule of law working in a positive way either.A few good write-ups about the Shawcross doctrine (the basis in Canadian legal theory for prosecutorial independence) here, here and here. The last link (about the UK implementation) is interesting in that it describes a “Shawcross letter” (i.e., a letter sent by the AG to their ministerial colleagues to solicit their input). This was, in effect, what Wilson-Raybould didn’t do. She made up her mind independently, then dismissed those who expressed contrary views. Had she gathered up all available views to inform her decision (rather than decide based exclusively on her and her DPP’s legal judgment), one imagines that others would have found less cause to ensure their views were being heard/considered. (She had the legal right to make up her mind independently, but that hardly means she was right in doing so.)I’ll have to write a separate answer about Butts’ testimony at some point, but the big things for me were: (i) it gave a pretty good explanation for why Wilson-Raybould was shuffled; (ii) Butts made an extraordinary and easily-falsified set of claims about her interactions with him about the SNC file, which, if true, are enormously problematic for her case.The other thing that came out of Butts’ testimony was that Trudeau really dropped the ball in offering Wilson-Raybould (who is Indigenous) the Indigenous Services portfolio as opposed to the Crown-Indigenous Relations portfolio, with that difference being, roughly, the difference between being in charge of restructuring relations (the latter) and being in charge of administering welfare (the former). She was never going to accept the former, and he and Butts have no real excuse for not foreseeing this.The real crisis here (if we must use the term crisis) seems to be that Trudeau was so out of tune with two of his ministers, and that he was unable to keep them in the fold after they raised their objections (even if the way they raised them was less than ideal).On the subject of raising objections, Scott Welch wrote a great companion answer here about the various opportunities (if not obligations) that Wilson-Raybould had to report any inappropriate or unethical behavior on the part of Trudeau or his staff. She, to our current knowledge, made use of none of them. Prior to her being shuffled, her only vocalized discontent came in the form of telling some people (paraphrasing) “stop lobbying already!”, which is not at all the same thing as raising a formal concern/complaint about misconduct. (And again we have Butts’ testimony that his sole one-on-one conversation with her about SNC came at the end of a friendly two-hour dinner which she initiated, with no other text or email ever being sent to him on the subject. Per his testimony, she was the one who brought it up then, and her after-dinner text said nothing further about it. He claims she never laid out her concerns until during one of their “four or five” “long” and “personal” conversations they had after she was transferred, and that he was dumbfounded when she mentioned her suspicion on why she had been moved.)While she isn’t a disinterested party (and while I think some of her criticisms are overly strong), I thought Sheila Copps’ interview with CBC contained some solid points, namely: (i) that saying “I’ve made up my mind, now go away” is not exactly consistent with the role of an AG/MOJ when your colleagues don’t feel heard, (ii) that it’s kinda weird to quit a cabinet without also quitting caucus, (iii) that the number of meetings which Wilson-Raybould took on this file was not especially high, (iv) that the original decision to not prosecute was split. (As an aside, I really dislike that interviewer. He’s part of the problem.)EDITS: ROUND 2So, the Conservatives have started a “Let Her Speak” campaign pushing for a second (at least) round of testimony from Wilson-Raybould. While I’m broadly supportive of this, it’s worth noting that Trudeau has a rational case for saying “no” that isn’t solely rooted in being afraid of some harmful truth being revealed. From his perspective, Wilson-Raybould is on a mission to take him down. Let’s assume that every word she said in the first testimony was true. There was nothing particularly damning in it from a legal context, but it played very poorly for Trudeau all the same. He’s now facing a decision between: (i) allowing her to speak again and the same thing happening again and it hurting him more in the polls, (ii) not allowing her to speak again, which will hurt him in the polls now, but which may also cap the damage. Were I his advisor, I’d push him toward letting her speak and then prepping a killer set of rebuttals (assuming the facts are indeed on his side). More downside, but more upside. That said, it would seem that he’s being pushed in a different direction. While I’m not so much a fan of this, I wouldn’t infer from it (as many are) that it’s necessarily a sign of guilt.Ok, a bit more about Scheer. I keep getting comments wondering why I dislike him so much. First, I should point out that most Conservatives never cared much for him either until he was their sole hope against Trudeau. He didn’t crack 20% in opinion polls until after Kevin O’Leary dropped out (and that’s among Conservative Party members). He won the nomination on the 13th ballot, having trailed on all 12 ballots prior. The fact that he won (which was contested due to significant inconsistencies) was largely viewed as a frantic rejection of Maxime Bernier (who had led on all of the first 12 ballots), not an endorsement of Scheer. From his first speech post-nomination, he’s relied on red meat, generalities, and strawmen. That’s not what we need from the Leader of the Opposition. We need someone able to carefully and accurately deconstruct the PM’s decisions, showing voters a detailed vision of some plausibly better way. Jack Layton was that guy. Harper, in his own way, was that guy. Scheer is not that guy. He once wrote an op-ed in support of Brexit — aka, arguably the most ill-conceived set of decisions in modern political history. (He was still in support of it as recently as this past November, which is just wild given how things have unfolded. It’s one thing to be theoretically in favor of sovereignty. It’s quite another to be in favor of a nation jumping off a cliff to get it.) Scheer’s campaign chair, Hamish Marshall, is also a former director of Rebel Media, which is morally inexcusable in itself. (Marshall says he had nothing to do with editorial there and that he eventually did resign. But this rundown of all the content they published before he quit is deeply disturbing — not to mention that we have no reason to believe that he quit for moral reasons.)I’d been waiting for a transcript of Nathalie Drouin’s (Wilson-Raybould’s former deputy) testimony before the House Justice Committee (which it seems doesn’t exist anywhere, maybe due to some rule). But snippets were reported by the CBC. A few interesting takeaways: (i) JWR had given Drouin an instruction not to talk about the SNC case by September 17th, which was super early into the process; (ii) JWR forbade Drouin from answering a question from the PCO (civil service) about the potential impact of SNC failing to get a deferral; (iii) Drouin was never told what the evidence against SNC’s case was. This is all very odd.An important open question: where did the original leak to the Globe & Mail come from? And why was a leak made to the press before internal remedies were exhausted (or even attempted)?An interesting tidbit from Butts’ testimony that I missed the first time around: Wilson-Raybould was the second minister that Trudeau attempted to move from a dream portfolio to Indigenous Services using the same logic. The difference is that the first person said yes. (Incidentally, this was the other minister that later quit in solidarity with Wilson-Raybould.) While it was still an unwise move, this does lend credence to the argument that Trudeau was doing it to signal continued support for his Indigenous reconciliation efforts, which is to say it could have been a bad decision made with positive intent. (Logically, though, this same move having been made before might have been a really convenient cover. I don’t know how we’d know for sure unless we’re just taking someone’s word.)Echoing what Copps said about the insubstantial meeting count, Butts estimated the number of meetings on the TMX pipeline deal as being around 100. By comparison, the SNC file ended up drawing 10 meetings and 20 contacts over a little more than three months. While the context is a bit different with an AG vs. other ministerial roles, this number still doesn’t seem outlying.Lots of people have been mentioning how prosecutorial independence is “constitutionally guaranteed” (or other wording to that effect). This is true in a sense, but that sense is mostly misleading. Canada is unlike the US in that we have no single document called The Constitution. What we have is a messy patchwork of acts, statutes, orders, and precedents. Prosecutorial independence is a “constitutional convention”, meaning that it’s an unwritten rule with no binding power over Parliament. In the absence of contrary legislation, conventions are the best practices which all are generally expected to follow. But not only have conventions been broken from time to time with little consequence, the House is free to pass new laws to make written what is unwritten, and the courts (explicitly) have no power to overrule. So if Trudeau were to decide tomorrow “hey, let’s do away with this thing” and if enough MPs were to say “yeah, let’s do that”, then the bill would be passed. (There are more steps, but the gist is that there’s no way to stop a majority-supported bill without sparking an actual constitutional crisis likely to resolve in the House’s favour.) While I can’t imagine that any PM would try this in the current climate, there’s nothing actually legally stopping them.

I enjoyed reading this article by Thomas Hauser on some of the purported discrepancies that exist in some of the drug testing procedures implemented in the sport of boxing by some of the preeminent anti-doping agencies in the world.On December 30, 2009, Manny Pacquiao sued Floyd Mayweather Jr., Floyd Sr. (Floyd’s father), Roger Mayweather (Floyd’s uncle and trainer), Mayweather Promotions, Golden Boy Promotions CEO Richard Schaefer and Oscar De la Hoya for defamation. Pacquiao’s complaint, filed in the United States District Court of Nevada, alleged that each of the defendants had falsely accused him of using, and continuing to use, illegal performance-enhancing drugs.Mayweather has gone to great lengths to position himself in the public mind as a “clean” fighter. For his three most recent fights (against Shane Mosley, Victor Ortiz and Miguel Cotto), he has mandated that he and his opponent be subjected to what he calls “Olympic-style testing” by the United States Anti-Doping Agency (USADA).USADA is an independent non-governmental sports drug-testing agency whose services are utilized by the United States Olympic and Paralympic movement. It receives approximately $10,000,000 annually in public funding, more in years when the Olympics are held. USADA was paid a reported $100,000 per fight for the drug-testing services it performed in conjunction with Mayweather’s outings.Victor Conte is one of the most knowledgeable people in sports with regard to the use of, and testing for, performance-enhancing drugs. In 1984, Conte founded the Bay Area Laboratory Co-Operative (BALCO), which was at the heart of several much-publicized PED scandals. In 2005, he pled guilty to charges of illegal steroid distribution and tax fraud and spent four months in prison. After being released from incarceration, Conte moved to the side of the angels and is now a formidable advocate for “clean” sport.“Mayweather is not doing Olympic-style testing,” Conte states. “I’ve never liked the use of that phrase. ‘Olympic’ means 24-7-365. To be effective, drug testing has to be 24 hours a day, seven days a week, 365 days a year. The benefits that an athlete retains from using anabolic steroids and certain other PEDs carry over for months. That means athletes can develop their strength and speed base early and the benefits of PED use will last after that use has been discontinued. If you wait to start testing until eight to 10 weeks in advance of a fight, which is what Mayweather does, that’s not Olympic-style testing. Who knows what Mayweather or his opponent has been doing during the previous six months?”Tests for a Mayweather fight generally begin around the time of the kick-off press tour heralding Floyd’s annual ring appearance. Floyd and his opponent agree to keep USADA advised as to their whereabouts and submit to an unlimited number of unannounced blood and urine tests. Other details (such as what drugs are being tested for, how samples are analyzed and what happens in the event of a positive test) are murky.Mayweather and his promoter (Golden Boy Promotions) have gone to great lengths to propagate the notion that they’re in the forefront of PED testing to “clean up” boxing. In return, they’ve reaped a public relations bonanza. But some members of Team Mayweather haven’t been content to simply disseminate a positive message with regard to Floyd’s conduct. They’ve chosen instead to brand Pacquiao (Mayweather’s chief rival) as a PED user.Floyd Mayweather Sr. declared, “[Pacquiao] can’t beat Clottey without that sh*t in him. He couldn’t beat De la Hoya without that sh*t. He couldn’t beat Ricky Hatton without that sh*t. And he couldn’t beat Cotto without that sh*t. I don’t even think he could beat that kid from Chicago [David Diaz] without that sh*t. He wouldn’t be able to beat any of those guys without enhancement drugs.”Not to be outdone, Roger Mayweather proclaimed, “This mother**ker don’t want to take the test. That’s why the fight [Mayweather vs. Pacquiao] didn’t happen. He got that sh*t in him. That’s why he didn’t want to take the test.”References to Pacquiao’s alleged PED use by the other defendants in the defamation action were more subtle. But their message was similar.The court case moved slowly as litigation often does. Last year, the claims against Schaefer and De la Hoya were dismissed with the consent of Pacquiao’s attorneys after Richard and Oscar apologized and stated that they had never meant to suggest that Manny was using performance-enhancing drugs.The Mayweathers continued to fight the complaint. Floyd’s conduct in failing to appear for a scheduled deposition on several occasions displeased the court and infuriated Pacquiao’s attorneys. The case looked like it would be a long battle of attrition. Then things changed dramatically.Under standard sports drug-testing protocols, when blood or urine is taken from an athlete, it’s divided into an “A” and “B” sample. The “A” sample is tested first. If it tests negative, end of story. If the “A” sample tests positive, the athlete then has the right to demand that the “B” sample be tested. If the “B” sample tests negative, the athlete is presumed to be clean. But if the “B” sample also tests positive, the first positive finding is confirmed and the athlete has a problem.On May 20, 2012, a rumor filtered through the drug-testing community that Mayweather had tested positive on three occasions for an illegal performance-enhancing drug.More specifically, it was rumored that Mayweather’s “A” sample had tested positive on three occasions and, after each positive test, USADA had found exceptional circumstances in the form of inadvertent use and gave Floyd a waiver. This waiver, according to the rumor, negated the need for a test of Floyd’s “B” sample. And because the “B” sample was never tested, a loophole in USADA’s contract with Mayweather and Golden Boy allowed the testing to proceed without the positive “A” sample results being reported to Mayweather’s opponent or the Nevada State Athletic Commission (which had jurisdiction over the fights).In late-May, Pacquiao’s attorneys heard the rumor. On June 4, 2012, they served document demands and subpoenas on Mayweather, Mayweather Promotions, Golden Boy and USADA calling for the production of all documents that related to PED testing of Mayweather for the Shane Mosley, Victor Ortiz and Miguel Cotto fights.The documents were not produced. There was a delay in the proceedings while Floyd spent nine weeks in the Clark County Detention Center after pleading guilty to charges of domestic violence and harassment. Upon his release from jail on August 2nd, settlement talks heated up.On September 25, 2012, a stipulation of settlement ending the defamation case was filed with the court. The parties agreed that the terms of settlement would be kept confidential. Prior to the agreement being signed, two sources with detailed knowledge of the proceedings told this writer that Mayweather’s initial monetary settlement offer was “substantially more” than Pacquiao’s attorneys had expected it would be and an agreement in principle was reached soon afterward.As part of the settlement, the Mayweathers and Mayweather Promotions issued a statement that read: “Floyd Mayweather Jr., Floyd Mayweather Sr., Roger Mayweather and Mayweather Promotions wish to make it clear that they never intended to claim that Manny Pacquiao has used or is using any performance-enhancing drugs nor are they aware of any evidence that Manny Pacquiao has used performance-enhancing drugs. Manny Pacquiao is a great champion and no one should construe any of our prior remarks as claiming that Manny Pacquiao has used performance-enhancing drugs.”I don’t know if Floyd Mayweather or Manny Pacquiao has used performance-enhancing drugs or not.I do know that, if Mayweather’s “A” sample tested positive for a performance-enhancing drug on one or more occasions and he was given a waiver by USADA that concealed this fact from the Nevada State Athletic Commission, his opponent and the public, we have an ingredient that could contribute to the making of a scandal.Any analysis of PED use and boxing should start with the acknowledgement that chemistry is now part of sports.We know certain things about the use of illegal, performance-enhancing drugs:(1) PEDs offer more than a shortcut. They take an athlete to a place that he or she might not be able to get to without them. When undertaken in conjunction with proper exercise and training, the use of PEDs creates a better athlete.(2) PED use is often difficult to detect.Sophisticated users evade detection in the face of rigorous testing. The more money an athlete spends, the less detectible PED use is. Also, in many instances, the testing is erratic, inadequate and even corrupt. Three years ago, Victor Conte declared, “Boxing’s testing program is beyond a joke. It’s worthless. The loopholes are so big that you could drive a Mack truck through them. Many of the people who are supposed to be regulating this don’t want to know.” Now Conte says, “In some respects, things have gotten worse.”(3) PED use is more prevalent in boxing now than ever before, particularly at the elite level. For many fighters, the prevailing ethic seems to be, “If you’re not cheating, you’re not trying.”Fighters are reconfiguring their bodies and, in some instances, look like totally different physical beings. In a clean world, fighters don’t get older, heavier and faster at the same time, but that’s what’s happening in boxing. Improved performances at an advanced age are becoming common. Fighters at age 35 are outperforming what they could do when they were 30. In some instances, fighters are starting to perform at an elite level at an age when they would normally be expected to be on a downward slide.(4) The use of PEDs threatens the short term and long term health of the user. It’s illegal and gives an athlete who uses them an unfair competitive advantage. It also endangers fighters who are getting hit in the head harder than before by opponents.Earlier this year, a handful of high-profile cases became part of boxing’s PED dialogue.On May 4, 2012, WBA/IBF 140-pound champion Lamont Peterson learned that his “A” and “B” urine samples had tested positive for the presence of an anabolic steroid. Peterson had been scheduled to defend his titles in a rematch against Amir Khan. The fight was canceled.Two weeks later, the “A” and “B” urine samples of WBC 147-pound champion Andre Berto tested positive for Norandrosterone (an anabolic steroid). Berto was slated to defend his belt against Victor Ortiz. That fight was also canceled.On June 22nd, it was revealed that, subsequent to Antonio Tarver’s June 2nd fight in California against Lateef Kayode, Tarver’s pre-fight urine sample had tested positive for the anabolic steroid Drostanolone. On fight night, the bout had been declared a draw. The result was changed to “no contest.”Finally, on October 18th, two days before Erik Morales’s scheduled rematch against Danny Garcia for the latter’s WBA and WBC titles, word leaked to the media that Morales had tested positive for Clenbuterol. Initially, the public was led to believe by the promotion that only Morales’s “A” sample had tested positive and there was a need for his “B” sample to be tested (which couldn’t be done until after the fight). Then it was learned that Morales had been tested on two occasions earlier in the month and, each time, both his “A” and “B” samples had tested positive. Despite that revelation, Garcia vs. Morales II was allowed to take place.In seeking out the truth behind the aforementioned matters, this writer interviewed dozens of participants and observers. Two people of note declined to be interviewed.Richard Schaefer sent a November 1st email that read in part, “We are trying to do something positive and yet it seems that media and others are attacking us. It would be easy for us to do nothing just like all other promoters. But by trying to support the fighters’ desire for additional testing, we are getting criticized.”Beyond that, Schaefer chose not to discuss the issues involved. Instead, his email referenced my relationships with Dr. Margaret Goodman and Maxboxing’s own Gabriel Montoya and stated, “I consider you a friend and really don’t want this Margaret Goodman, Gabriel Montoya vs. Golden Boy witch hunt to affect our relationship. I have my opinion about Margaret and Gabriel, and you have yours. I respect your opinion, and I hope you respect mine.”Dr. Goodman was once chief ringside physician for the Nevada State Athletic Commission. She is now president and board chairperson of a drug-testing organization known as VADA (Voluntary Anti-Doping Agency).The drug tests on Lamont Peterson and Andre Berto that came back positive were carried out under the supervision of VADA.Dr. Goodman is a friend. We’ve talked at length over the years about medical issues and boxing. She has been a valuable resource to me in my writing. We’ve also shared thoughts and offered advice to each other on a variety of subjects, both personal and professional.Gabriel Montoya has written a series of significant articles on the use of PEDs in boxing. Earlier this year, I spoke with Schaefer on Montoya’s behalf after Gabriel was denied access and credentials for certain Golden Boy events. I also spoke with Montoya about his problems with Golden Boy and what might be done to remedy the situation. Gabriel is a casual acquaintance.I should add that, although I sometimes disagree with things that Richard Schaefer has done (just as he sometimes disagrees with what I write), I admire his skills and we’ve maintained a cordial relationship over the years.USADA CEO Travis Tygart also declined to be interviewed for this article and instructed that questions be addressed to USADA’s media relations manager, Annie Skinner. On November 2nd, this writer sent a series of preliminary questions to Ms. Skinner. There was no response.At this point, it makes sense to take a closer look at the recent positive drug tests referenced earlier in this article.In March 2012, Lamont Peterson and Amir Khan submitted applications to VADA pursuant to which their blood and urine were tested in conjunction with their scheduled May 19th fight. The first samples were taken on March 19th, the only day on which the fighters knew in advance that they would be tested.On April 12th, VADA was advised by the UCLA Olympic Analytical Laboratory that Peterson’s “A” sample had tested positive consistent with the administration of an anabolic steroid. On April 13th, the Peterson camp was notified of that fact by FedEx and email. In keeping with VADA’s protocols, Peterson was given one week to challenge the “A” test result and ask for his “B” sample to be tested with one of his representatives present.The Peterson team waited eight days (until April 21st) to respond. Then it chose to challenge the positive test result, asserted its right to be present when the “B” sample was tested, and asked that the “B” sample be tested on Friday, April 27th. The UCLA laboratory advised VADA that Friday was an inappropriate day to begin testing because four consecutive days were needed to complete the test.The testing of Peterson’s “B” sample began on Monday, April 30th. On May 3rd, VADA was advised by the laboratory that this sample had also tested positive. The Peterson camp was so notified by FedEx and email on May 4th. That same day, VADA also sent a letter by FedEx and fax to Keith Kizer (Executive Director of the Nevada State Athletic Commission) stating the facts of the matter.The Peterson-Khan rematch was canceled.Richard Schaefer was livid at the way in which drug testing for Peterson-Khan II unfolded. Golden Boy was to have promoted the fight, and he felt that VADA should have notified him as soon as Peterson’s “A” sample tested positive.Margaret Goodman says that, after Peterson’s “A” sample tested positive, she asked Lamont’s attorney (Jeff Fried) whether there was an agreement between Peterson and Golden Boy that authorized VADA to release the “A” test results to the promoter. Fried told her that no such authorization existed.Ryan Connolly is counsel for VADA. In the late 1990s, he was the business manager for the UCLA Olympic Analytical Laboratory. He’s now an attorney in private practice with an expertise in PED testing in the context of competitive sports. In that role, he oversaw the process outlined in a May 10th document titled “Statement of VADA.”“When VADA became involved with the Peterson-Khan fight,” that statement reads, “the individual athletes signed up for the VADA program and executed the proper documentation. VADA was told that GBP [Golden Boy Promotions] also wanted a contract so that GBP would be authorized to receive the testing results, including the preliminary results from an ‘A’ sample analysis. In order for VADA to release the preliminary ‘A’ sample results to a third party such as GBP, VADA requires an executed authorization allowing us to do so. VADA sent GBP a draft contract for its signature which would have authorized the preliminary ‘A’ sample results to be released to GBP. This initial draft, which was never signed, contained a clause pursuant to which GBP would have represented that it had obtained the necessary authorization from the fighters. GBP’s legal team rejected this clause and instead suggested making the fighters signatories to the contract with their signatures being the necessary authorization. VADA’s counsel made it clear to GBP that, if GBP wanted to handle it this way, GBP must take responsibility for obtaining the athlete’s signatures. Unfortunately, GBP never obtained the signatures.The bottom line is that VADA had no contract with GBP. This is not a mere technicality. It involves issues of medical ethics. VADA needed a signed contract in order to deviate from its Results Management Policy (posted on our website) and release the preliminary and personal medical information to a third party.VADA would have been happy to inform GBP of the preliminary ‘A’ results. But we needed a signed authorization allowing us to do so, which we never received. VADA has complied in every way with all signed contracts that we had and will continue to do so.”Dr. Goodman elaborates on that theme, saying, “As per our contracts and protocols, VADA gives certain test results to the athletic commission in any jurisdiction where the fighter holds a license or a request for a license is pending. We also release certain results to FightFax, the Association of Boxing Commissions, and whomever else the athlete asks us to release them to. We’d be happy to release any and all results to a fighter’s promoter, but we need an authorization from the fighter to do so. That‘s the law and those are the terms in the Results Management Policy posted on the VADA website.”As a postscript, the Peterson camp later claimed that Lamont had tested positive because of the surgical implantation of “testosterone pellets” to correct a testosterone deficiency known as hypogonadism.That led Ryan Connolly to observe that more than a few elite athletes suffer from hypogonadism and note, “This may seem odd since these athletes are physical specimens. How can they be so muscular and fit but have natural testosterone production deficiencies at a higher rate than ordinary people? The dirty little secret is not necessarily that these athletes are lying about their hypogonadism. The dirty little secret is the likely cause of the hypogonadism in the first place - past anabolic steroid abuse.”Meanwhile, even before the Peterson controversy subsided, a new controversy was brewing. Andre Berto and Victor Ortiz had submitted applications for VADA testing in advance of their scheduled June 23, 2012 fight. On May 11th, Dr. Goodman was advised by the UCLA Olympic Analytical Laboratory that an “A” sample urine specimen taken from Berto had tested positive for norandrosterone (an anabolic steroid) at a level above the permitted amount.On May 12th, following VADA protocols, Goodman notified the Berto camp. Berto was advised by FedEx. Tony Morgan (Berto’s trainer, who had been listed on notice forms as a designated recipient of information) was advised of the finding by email, as was Al Haymon (Berto’s manager).Dr. Goodman’s email to each recipient read in part, “VADA urges you to immediately notify Golden Boy Promotions [the lead promoter on the fight], DiBella Entertainment [Berto’s promoter], and the California State Athletic Commission of this positive “A” sample finding by forwarding each party a copy of this notification so that it is received by each party as quickly as possible but no later than 3:00 p.m. on Monday, May 14th. Please confirm to VADA in writing that you have forwarded a copy to each party by that time.”The requested confirmation was not forthcoming. Instead, on May 14th, Dr. Goodman received a letter from Howard Jacobs (an attorney retained by Berto), who warned that telling anyone other than Berto’s representatives about the “A” sample positive could result in “civil liability on the part of VADA.”On May 15th, Goodman sent an email to Al Haymon that read, “Dear Al, as you are aware, Mr. Berto has asserted a medical privilege insofar as VADA is concerned. I would think that you will be held personally accountable by Golden Boy Promotions and DiBella Entertainment for your failure to notify them of this issue in a timely manner. Please advise us with regard to whether or not you have notified GBP and DBE. Thank you, Margaret Goodman.”There was no response.That same day, Ryan Connolly sent an email to Howard Jacobs urging similar notification.On May 18th, Dr. Goodman was advised by the UCLA Olympic Analytical Laboratory that Berto’s “B” sample urine specimen had tested positive. VADA then notified Berto, his designated representatives, and the California State Athletic Commission.Haymon, in turn, notified Richard Schaefer. Lou DiBella says that, despite the fact that he was Berto’s promoter, neither Schaefer nor Haymon advised him that Andre’s “A” and “B” samples had tested positive until plans were underway to replace Berto as an opponent for Victor Ortiz with Josesito Lopez (another Haymon fighter, who was promoted by Golden Boy in conjunction with Goossen Tutor).“How do you think that makes me feel?” DiBella asked rhetorically. “I raised the issue with Al afterward, and he didn’t say anything. That told me all I needed to know.”Haymon, like Richard Schaefer and Travis Tygart, declined to be interviewed for this article.Berto later told RingTvOnline, “To all of my fans who have been supportive, you know, everybody who knows me, they know that everything that I’ve always accomplished has just been through hard work. And when it comes to the positive test, that was just a situation that was unfortunate. It was a situation that didn’t get properly explained to the public on what it was and what caused it. I believe that’s what really made an uproar about everything. You know, like I’ve said, I’ve never been a cheater. Never have and never will. I’ve never injected anything in any type of situation at all. So when it comes up as a positive test, it didn’t have anything to do with any type of drug enhancement or any type of testosterone or EPO or none of that type of stuff that a lot of guys probably use. It was, after we got the positive test, we just needed to know what it was because we knew that everything that we were doing was straightforward. After they put the news out, that’s when we found out exactly what it was. Then I had to go through all of the right processes and the hiring of the lawyers and things like that. So it was basically just taking my sample test and just really proving the fact that it was a contamination of something. I couldn’t believe it happened the way it did with no explanation for it to the press or the public. The way it was put out there without explaining exactly what it was and how much upset me. Nothing was really explained to the public.”There’s a bit of hypocrisy there. Berto expressed unhappiness that news of his positive tests “was put out there without explaining exactly what it was…to the public.” But as previously noted, his own lawyer had made it clear to VADA that the dissemination of information to third parties should be kept to a minimum under threat of civil liability on the part of VADA.Given Golden Boy’s professed commitment to making boxing a clean sport, Richard Schaefer might have been expected to commend VADA for its findings with regard to Peterson and Berto. Instead, he seemed intent on attacking Dr. Goodman and VADA.On May 22nd, Arnold Joseph, counsel for Golden Boy, sent a letter to Goodman stating Golden Boy’s intention to sue VADA for not notifying the promoter that Peterson’s “A” sample had tested positive, a failure that Joseph claimed was magnified by VADA reporting the “B” sample positive to the Nevada State Athletic Commission and not to Golden Boy.To date, no lawsuit has been filed. But three days later, Golden Boy terminated a column on medical issues that Goodman had written monthly for The Ring magazine (now owned by Golden Boy) since 2004.“I guess the only question I have is why it took so long for Richard to fire me,” Dr. Goodman said afterward. “Once Golden Boy bought the magazine, I was told I couldn’t cover certain topics like more insurance coverage for catastrophic injuries suffered by fighters. Michael Rosenthal [the editor who replaced Nigel Collins at The Ring] is a great guy. He’s been very supportive but I could see the writing on the wall. You know, the first column I wrote for Ring eight years ago was about Fernando Vargas testing positive for Winstrol. It was called ‘JUICED!’ How ironic is that?”At the same time Golden Boy was attacking Margaret Goodman, it also took aim at Gabriel Montoya.Montoya, as previously noted, has written a number of articles on the use of PEDs in boxing. On May 20, 2012, a source with extensive knowledge in the area of drug testing told him he believed Floyd Mayweather had tested positive on three occasions for performance-enhancing drugs and that, in each instance, the test results had been covered up by Golden Boy and USADA.Montoya did what a responsible journalist is supposed to do. He began to question people in boxing and the world of PED testing about the rumors. On May 23rd, he received a letter from Jeffrey Spitz (an attorney for Golden Boy).Montoya says that the Spitz letter mischaracterized the nature of his investigation. There was no mistaking the fact that the letter accused him of making false and defamatory statements with regard to Golden Boy and threatened legal action against him.“There was an earlier time when Golden Boy wouldn’t credential me for its fights because I sent out some tweets that Oscar didn’t like,” Montoya recounts. “But I spoke with Schaefer and we worked past that. Then I started looking into the issue of Floyd’s drug tests. I got the threatening letter from Spitz, which I posted on Maxboxing. And I was banned again from Golden Boy fights.”For example, Montoya was told he would be credentialed for the June 30th fight card headlined by Cornelius Bundrage vs. Cory Spinks at Fantasy Springs Resort Casino. Then, on June 29th, he received an email from Anndee Laskoe (public relations manager for the Cabazon Band of Mission Indians), who wrote, “I have been asked by Golden Boy Promotions to remove your name from the press credential list for the June 30th fights at Fantasy Springs. I am sorry for any inconvenience this may have caused you.”Golden Boy publicists Monica Sears and Ramiro Gonzalez were copied on the email.Golden Boy did credential Montoya for at least one subsequent show.Meanwhile, other troubling incidents were brewing.In mid-May, Winky Wright was preparing to fight Peter Quillin in a June 2nd bout promoted by Golden Boy at the Home Depot Center in Carson, California.“Everybody kept popping up positive for all this stuff,” Wright told Montoya. “Boxing isn’t always a fair game. I figured I should get this [testing] too. So I called Golden Boy and said, ‘Why we ain’t doing it?’ They was like ‘Uh, etcetera, etcetera, this and this and that, and someone didn’t want to pay.’ I said ‘Okay; I’m going to pay for it. I just want to play on the same field.’”Wright and Quillin entered into a May 21, 2012 contract with Golden Boy and USADA pursuant to which USADA was to provide drug testing services in conjunction with their fight.“I didn’t know the difference between [USADA and VADA].” Wright says. “I just told Golden Boy I wanted to be tested and they came back with USADA.”On or about May 23rd, USADA collected blood and urine samples from Quillin. Wright gave samples on May 24th.“They came to my house at six in the morning,” Winky recalls. “They took urine, blood, everything.”Then, without warning, Wright was told that the testing was off.“I think it was like two days later,” Winky told Gabriel Montoya. “Golden Boy called and told Damian [Ramirez, Wright’s manager], and Damian told me. I don’t understand it. All I’m asking is, ‘How do you take urine and take blood and then, all of sudden, you say you aren’t going to test it?’ Then they tried to make up an excuse and say they wanted to teach us. There ain’t nothing to teach. They took blood. They told us we would take a test and either come up positive or negative. That’s it. All I want to know is, are we playing on the same field? So my lawyer called and asked for it to be tested and they told him they threw it out. They told my attorney they threw it out. That’s crazy. Why would they throw it out? They just finished [taking samples] and they’re going to throw it out already? Does this sound crazy? We gave samples. Let’s test that and let me see the result. They threw it out. I just don’t understand that.”Quillin-Wright went ahead as planned with Quillin winning a unanimous 10-round decision. Quillin, like Andre Berto and Floyd Mayweather, is managed by Al Haymon.The contract that Wright and Quillin entered into with Golden Boy and USADA specifically provided, “USADA will be responsible for storing the samples after collection and transporting them safely and securely to a laboratory for analysis…USADA will send all samples for analysis to a WADA [World Anti-Doping Agency] accredited laboratory under contract to USADA…USADA shall maintain Sample Collection Documentation, including test results for testing conducted under this Master Agreement, for a period of six years.”“The destruction of samples isn’t supposed to happen,” Ryan Connolly states. “If that happened in an Olympic context, it would set off alarms in a lot of places. There would likely be a thorough investigation by the International Olympic Committee and WADA.”Victor Conte adds, “The trend in drug-testing now is to save samples longer than before, not pour them down the drain.”But the worst was yet to come.Scott Hale runs a small website called Halestorm Sports Network. On Thursday, October 18, 2012, at approximately 8:30 a.m. Pacific Coast Time, Hale got a telephone call from a source in New York who told him that Erik Morales (who was scheduled to fight Danny Garcia two days later on a Golden Boy Promotions card at Barclays Center in Brooklyn) had tested positive for a banned substance.“I knew they were about to start the [final pre-fight] press conference,” Hale recalls, “and I assumed the fight would be canceled. Four hours later, I went online and saw that the fight was still on and the story hadn’t broken. So I made some follow-up calls and a second source confirmed the story. Then a third source called me to confirm, but I still didn’t know what the drug was.”“At that point,” Hale continues, “I called USADA and Golden Boy. Neither of them would confirm the story. One of my partners called the New York State Athletic Commission. They said they didn’t know anything about it, but our sources were solid. All three of them are reliable. So we decided to go with the story.”The snowball rolled from there.Initially, Golden Boy and USADA engaged in damage control.Dan Rafael of ESPN.com spoke with two sources and wrote, “The reason the fight has not been called off, according to one of the sources, is because Morales’s ‘A’ sample tested positive but the results of the ‘B’ sample test likely won’t be available until after the fight. ‘[USADA] said it could be a false positive,’ one of the sources with knowledge of the disclosure said. ‘But from what I understand, they won’t know until the test on the ‘B’ sample comes back. That probably won’t be until after the fight.’”Richard Schaefer told Chris Mannix of SI.com, “USADA has now started the process. The process will play out. There is not going to be a rush to judgment. Morales is a legendary fighter. And really, nobody deserves a rush to judgment. You are innocent until proven guilty.”Also on Thursday, Schaefer told Rick Reeno of BoxingScene.com, “I think what is important here is that there is not going to be a witch hunt against Erik Morales. Let’s allow the process to play out.”The New York State Athletic Commission was blindsided on the Morales matter. The first notice it received came in a three-way telephone conversation with representatives of Golden Boy and USADA after the Thursday press conference. In that conversation, the commission was told there were “some questionable test results” for Morales but that testing of Morales’s “B” sample would not be available until after the fight.Then, on Friday (one day before the scheduled fight), Keith Idec revealed on BoxingScene.com that samples had been taken from Morales on at least three occasions. Final results from the samples taken on October 17th were not in yet. But both the “A” and “B” samples taken from Morales on October 3rd and October 10th had tested positive for Clenbuterol. In other words, Morales had tested positive for Clenbuterol four times.Clenbuterol is widely used by bodybuilders and athletes. It helps the body increase its metabolism and process the conversion of carbohydrates, proteins, and fats into useful energy. It also boosts muscle growth and eliminates excess fats caused by the use of certain steroids.Under the WADA code, no amount of Clenbuterol is allowed in a competitor’s body. The measure is qualitative, not quantitative. Either Clenbuterol is there or it’s not. If it’s there, the athlete has a problem.After the positive tests were revealed, Morales claimed that he’d inadvertently ingested Clebuterol by eating contaminated meat. No evidence was offered in support of that contention.Nor was any explanation forthcoming as to why USADA kept taking samples from Morales after four tests (two “A” samples and two “B” samples from separate collections) came back positive. Giving Morales those additional tests was like giving someone who has been arrested for driving while intoxicated a second and third blood test a week after the arrest. The whole idea behind “cycling” is that it enables an athlete to use illegal PEDs, stop using them at a predetermined point in time, and then test clean in the days leading up to an event. A fighter shouldn’t be given the opportunity to test again and again until he tests clean.Also, Richard Schaefer vigorously attacked Dr. Margaret Goodman and VADA for not advising him that Lamont Peterson’s “A” sample had come back positive. But not only did Schaefer fail to notify Lou DiBella (Andre Berto’s promoter) in a timely manner that Berto had tested positive for Norandrosterone, Schaefer didn’t tell the New York State Athletic Commission in a timely manner that Morales had tested positive for Clenbuterol. Rather, it appears as though the commission and the public were deliberately misled with regard to the testing and how many tests Morales had failed.The moment that the “B” sample from Morales’s first test came back positive, that information should have been forwarded to the New York State Athletic Commission. The fact that USADA had positive test results from two “A” and two “B” samples and didn’t transmit those results to the NYSAC raises serious questions regarding USADA’s credibility.WOULD USADA HANDLE THE TESTING OF AN OLYMPIC ATHLETE THE WAY IT HANDLED THE MORALES TESTING?“The Erik Morales case is a travesty,” says Victor Conte. “Golden Boy and USADA seem to have made up a new set of rules without telling anyone what they are. What are the rules? Explain yourself, please! In ‘Olympic-style testing,’ you don’t have an ‘A’ sample and a ‘B’ sample test positive, and then another ‘A’ sample and ‘B’ sample test positive, and keep testing until you get a negative. What happened with Erik Morales should put everything that USADA and Golden Boy have done in boxing under a microscope. This is more than suspicious to me. It’s outrageous.”Incredibly, Garcia-Morales II was allowed to proceed. This, in effect, amounted to a “Get out of Jail Free” card for Garcia. Morales, a heavy underdog, was knocked out in the fourth round. But had Erik won the fight, the positive drug tests (which had been concealed prior to the leak on Halestorm Sports) could have been used to overturn the result and give Garcia back his belts.Garcia is managed by Al Haymon and is considered by Golden Boy to be one of its future stars.Since the Morales incident, people in the PED-testing community have begun to question the curious role played in boxing by USADA. When someone hears “USADA testing,” the assumption is that it’s legitimate. In that light, the reports that Erik Morales’s “A” and “B” samples tested positive for Clenbuterol on two occasions without notification to the New York State Athletic Commission are extremely troubling.Don Catlin founded the UCLA Olympic Analytical Laboratory in 1982 and is one of the founders of modern drug testing in sports.“USADA should not enter into a contract that doesn’t call for it to report positive test results to the appropriate governing body.” Catlin states. “If it’s true that USADA reported the results [in the Morales case] to Golden Boy and not to the governing state athletic commission, that’s a recipe for deception.”When asked about the possibility of withholding notification because of inadvertent use (such as eating contaminated meat), Catlin declares, “No! The International Olympic Committee allowed for those waivers 25 years ago, and it didn’t work. An athlete takes a steroid, tests positive, and then claims it was inadvertent. No one says, ‘I was cheating. You caught me.’”But more importantly, Catlin says, “USADA is a testing organization. USADA should not be making decisions regarding waivers and exemptions. That would make USADA judge and jury.”Ryan Connolly is in accord and adds, “There is no such thing in the Olympic world as an inadvertent use waiver. Athletes are strictly liable for what they put in their bodies. Inadvertent use might affect the length of an athlete’s suspension, but the athlete would still be disqualified from the competition that he, or she, was being tested for.”“I’m not sure what rules USADA is following,” Connolly continues, “but under WADA protocols, you wouldn’t see samples being destroyed and you wouldn’t see retests for Clenbuterol positives.”In other words, USADA seems to have one set of rules for testing Olympic athletes and another set of rules when it tests fighters for Golden Boy.“It looks to me like USADA and Golden Boy are making up the rules as they go along,” says Victor Conte. “One of the things that enables them to do it is that there’s no transparency to USADA’s testing for any of the fighters. What drugs are they testing for? What tests have been performed? What were the results? Why is Travis Tygart doing this?”One might also ask why Golden Boy and Richard Schaefer are doing this.“I think that Richard really wanted to be in the forefront on drug testing when he first got involved,” one Golden Boy employee (who, for obvious reasons, wishes to remain anonymous) says. “He knew it would ingratiate him with Floyd. It would get him some good PR. And it was a way to stick it in [Bob] Arum’s ear. But talking with him, I also felt that he thought it was the right thing to do. Then he realized that things were a lot more complicated and, probably, a lot dirtier than he’d thought. And at that point, his priorities changed.”It would be a stretch to say that Schaefer is trying to install himself as boxing’s drug czar. But he certainly doesn’t want drug testing to interfere with Golden Boy’s fights. That’s evident from his assault on VADA and Margaret Goodman after Lamont Peterson and Andre Berto tested positive.“Richard Schaefer saw what happened when somebody tests impartially with sophisticated testing methods,” HBO commentator Jim Lampley observes. “I haven’t spoken with him about these issues, but it would certainly appear as though he has decided to stay away from Margaret Goodman.”Stripped of its rhetoric, Schaefer’s main objection to VADA and Dr. Goodman appears to have been that they wouldn’t empower him in the testing process. He talks about VADA failing to notify him of Peterson’s positive “A” test in a timely manner. But if early notification is so important, why didn’t Golden Boy advise the New York State Athletic Commission that Erik Morales’s “A” and “B” samples had tested positive for Clenbuterol - twice?In fairness to Golden Boy, no other promoter has made a serious effort to rid boxing of PEDs, or even pretended to. And Schaefer himself acknowledged recently, “I think that ultimately it should be up to the athletic commissions to adopt a more updated drug-testing protocol and really not up to a promoter.”That latter point is particularly well-taken. The problem is that the state athletic commissions, as presently constituted, are woefully unsuited to the task. In many instances, boxing is barely governed at the state level. Everything has a loophole. Illegal PED users vs. the state athletic commissions is one of the biggest mismatches of all time.Most state athletic commissions don’t have the resources, the technical expertise, or the will to deal effectively with the PED problem. People go along to get along. No one wants to make waves.There’s no uniformity with regard to standards, degree of testing, or punishment from state to state. Testing on the day of a competition is notoriously ineffective in the face of sophisticated drug use. But that’s the only testing that most states utilize. Some states don’t drug test at all.The Nevada State Athletic Commission has long been considered to have one of the best drug-testing programs in the country. Two years ago, Travis Tygart was asked, “How easy is it to beat a testing program like Nevada’s?”“As simple as walking across the street,” Tygart answered. “It’s good for PR, to give the appearance that you’re testing, but nothing more.”After Lamont Peterson tested positive with VADA, Zach Arnold of Your Global Connection to the Fight Industry. spoke with Keith Kizer (Executive Director of the Nevada State Athletic Commission).“Kizer admits that a standard Nevada State Athletic Commission drug test would not have caught Peterson using synthetic testosterone,” Arnold reported afterward. “He admits that the reason the VADA test caught Peterson is because they use the Carbon Isotope Ratio standard for urine testing, which does in fact catch synthetic testosterone usage.”The Peterson camp, as earlier noted, says Lamont tested positive because of the surgical implantation of testosterone pellets to correct a testosterone deficiency known as hypogonadism. Jeff Fried (Peterson’s attorney) says the implantation occurred on November 12, 2011.Four weeks later, on December 10, 2011, Peterson fought Amir Khan in Washington D.C. The tests administered by the local commission failed to detect the testosterone. That’s a pretty good indication that PED testing in Washington D.C. is deficient.California hosts more fight cards than any other state in the country. On October 9, 2012, the California State Athletic Commission upheld a one-year suspension imposed on Antonio Tarver in the wake of his testing positive for Drostanolone.“The commission heard both sides of the issue and upheld Mr. Tarver’s suspension,” Kathi Burns (interim executive officer of the CSAC, told ESPN.com). “I think the commission’s actions speak for itself. It’s well-known that the commission has among the toughest anti-doping standards in the world, and that we have zero tolerance for doping.”Not true.California then turned 180 degrees and, without a full hearing, licensed Andre Berto for a November 24th fight (to be promoted by Golden Boy) against Robert Guerrero, despite the fact that Berto tested positive for Norandrosterone in May of this year. The explanation given by commission personnel was that Berto’s positive drug tests were administered by VADA and not by the commission itself.“How can they not recognize VADA?” Margaret Goodman asks. “Our program is in accord with WADA protocols. Our scientific director was recommended to us by WADA’s medical chief. We use internationally-recognized sample collectors. We even use the same laboratory [the UCLA Olympic Analytical Laboratory] that the California commission uses.”Then there’s the case of Julio Cesar Chavez Jr. Following his November 14, 2009 fight against Troy Rowland in Las Vegas, Chavez tested positive for Furosemide (a diuretic and steroid-masking agent). He was fined $10,000 by the Nevada State Athletic Commission and suspended for seven months. Four of his next six bouts were in Texas, one in California, and one in Mexico. Texas has a reputation for being lax in the area of drug-testing. Mexico is Mexico.On September 15, 2012, Chavez returned to Las Vegas to fight Sergio Martinez. After the bout, it was revealed that Julio had tested positive for marijuana.Marijuana is illegal, but it’s not a performance-enhancing drug. Chavez’s explanation for the positive test was as follows: “I have never smoked marijuana. For years, I have had insomnia, so I went to the doctor and he prescribed some drops for me that contained cannabis. I stopped taking them before the fight with Martinez, and I didn’t think I was going to test positive.”That explanation strains credibility. Chavez might have been better off claiming he ate tainted beef from a cow that ate a marijuana plant. Still, before the NSAC rules harshly on Julio, it should consider testing all commission personnel (including the five commissioners) for recreational drugs. Boxing has a drug problem, but the drug isn’t marijuana.As for Erik Morales and New York, on the day of Garcia-Morales II, the New York State Athletic Commission issued the following statement: “The New York Athletic Commission has taken into consideration the testing of Erick [sic] Morales conducted by USADA, an independent non-governmental organization contracted by Golden Boy Promotions to conduct testing on its boxers. Based upon currently available information and the representations made by Mr. Morales that he unintentionally ingested contaminated food, it is the Commission’s opinion that at this time there is inconclusive data to make a final determination regarding the suspension of Mr. Morales’s boxing license. The Commission will continue investigating the allegations and will wait until official laboratory results are available before making a final decision.”Let’s give the NYSAC the benefit of the doubt and assume that enormous political pressure from above was brought to bear on well-intentioned administrators. Garcia-Morales II was the main event on the first fight card at the new billion-dollar Barclays Center, an anchor for economic redevelopment in Brooklyn.Still, Kieran Mulvaney summed up nicely when he wrote on ESPN.com, “The way in which the situation was handled was borderline farcical. Morales failed tests twice, yet was allowed to take a third, which he passed, and faced no real consequences. Why have a drug-testing program if testing positive means nothing? If commissions are going to stand on the sideline, will failing a drug test become like missing weight: an inconvenience that can be smoothed over with some extra money changing hands?”It should also be noted that the world sanctioning organizations are part of the problem, not part of the solution.Four days after Garcia-Morales II, World Boxing Council President Jose Sulaiman declared, “The time of getting urine samples for the anti-doping tests is absolutely none other than in the dressing rooms before going into the ring or after the fights. The WBC only wants to test how a fighter is at the time of his performance and no other time unless it is a special circumstance. The tests are done by the local boxing commissions, most with which we have excellent relations and amicable agreements of mutual cooperation. We are, and have been, testing against drugs in boxing since 1975 and we have had only 15 positives in 37 years and about 1,600 fights. Boxing is a clean sport, as our data proves.”If Sulaiman weren’t so adept at gobbling up sanctioning fees and crushing reform movements within the WBC, one would be inclined to dismiss him as a buffoon.As for what comes next, the signs aren’t promising. This Saturday (November 24th), Andre Berto will fight Robert Guerrero in Ontario, California, on a card promoted by Golden Boy.Guerrero asked that the fighters be tested for PEDs by VADA. Walter Kane (Guerrero’s attorney) says that Richard Schaefer and Al Haymon (Berto’s manager) refused and would only allow testing by the California State Athletic Commission and USADA.In other words, Berto said he’d do drug testing, but not with the people who caught him earlier this year.Guerrero had two options. He could accept USADA and a career-high payday or lose the payday.“I’m not happy about it,” Kane says, “but in the end, we really didn’t have a choice. Golden Boy controls the purse strings, and they’re calling the shots.”Would the National Football League let Dallas Cowboys owner Jerry Jones dictate drug-testing terms for games the Cowboys play? Of course not. But in essence, Golden Boy (which has a vested interest in the outcome of the fights it promotes) is doing just that.Once again, the playing field has been tilted. There are times when it appears as though, not only does Golden Boy dictate which drug-testing organization is utilized, it can also influence whether or not there is random blood and urine testing for a fight.Indeed, Golden Boy might even be able to use its influence over the drug-testing process as a bargaining chip in signing fighters. Andre Berto tested positive and, soon after, was licensed to fight in California in a big-money fight. Erik Morales tested positive and New York said, “No problem. He can fight here right now.”Meanwhile, Golden Boy is refusing to use a drug-testing agency that plays by the reporting rules (VADA) and is giving its business to an agency (USADA) that appears to have ceded a certain amount of reporting authority to the promoter.The problems are overwhelming and there are no easy answers. Even state-of-the-art tests often fail to uncover PED use.Olympic gold medalist Marion Jones was tested more than 160 times during her track-and-field career and none of the tests came back as a confirmed positive. As the BALCO investigation widened, she admitted she’d used steroids prior to the 2000 Olympics and lied to federal investigations about it. She pled guilty to federal charges and spent six months in prison. The tests have gotten more sophisticated since then, but so have the cheaters.Should boxing even try to curtail PED use?“Yes,” says Victor Conte. “There will always be athletes who escape detection, but when there’s a desperate need, half a loaf of bread is better than none.”One might look to Major League Baseball for parallels. No sport wants to tarnish its image, let alone its major stars. But as baseball discovered, if a sport looks the other way, the use of PEDs can come back to haunt it.Baseball got a huge bounce when Barry Bonds, Mark McGwire, and Sammy Sosa rewrote its record book. Now an entire era has been disgraced, and baseball’s most hallowed records (which link fans from one generation to the next) are in limbo.Baseball made significant strides when it decided, finally, to crack down on PED use. Home run statistics are evidence of that. For eight consecutive seasons (between 1995 and 2002), the MLB home run leader hit at least 50 home runs. In the past five years, that mark has been reached only once. In the past two seasons, the four league leaders hit 44, 41, 43, and 39 home runs. Compare that with 1998, when Mark McGwire hit 70, Sammy Sosa hit 66, and Ken Griffey Jr. hit 56.In boxing at present, the users are way ahead of the testers and the distance between them is growing. The only thing that can possibly close the gap is a national approach with uniform national standards and a uniform national enforcement mechanism. If additional federal legislation is necessary to achieve that end, so be it. The notion that boxing can clean itself up one state athletic commission at a time is frivolous.To make real headway, it should be a condition for granting a license in any state that a fighter can be tested for PEDs at any time. Logistics and cost would make mandatory testing on a broad scale impractical, but unannounced spot testing could be implemented.All contracts for drug testing (such as Golden Boy’s contracts with USADA) should be filed immediately with the Association of Boxing Commissions and the supervising state athletic commission for the fight at issue. The ABC and supervising commission should be notified when each test is performed and also of each test result.For a state athletic commission to say (as is the case in some jurisdictions) that it won’t recognize any tests but its own is ridiculous. It shouldn’t matter who does the testing as long as the tests are reliable. Whether it’s a police officer or a private security guard who sees a bank being robbed, the offense is prosecuted.The implementation of sophisticated, unannounced, impartially-administered, random drug testing is the only way to turn the tide.That said, one has to acknowledge that we live in the real world. If a mega-fight is canceled two days before its scheduled date because one of the combatants has tested positive for PEDs, it isn’t like saying, “Number 94 won’t be playing defensive tackle on Sunday.” In boxing, if a fighter is suspended, the fight doesn’t go on.Big events are the economic engine that drives boxing. Canceling a mega-fight, particularly at the last minute, will result in tens of millions of dollars in lost income.For that reason, it’s not unreasonable to suggest that, in certain instances, if a fighter tests positive for PEDs before a fight: (1) his opponent should have the choice of proceeding with the fight or not; (2) if the fight takes place, the fighter who has tested positive should forfeit 50 percent of his purse; and (3) the fighter who has tested positive should be suspended for a minimum of one year after the fight with the suspension being recognized by every jurisdiction in the United States.Meanwhile, one has to ask: How many positive test results similar to those for Erik Morales (and possibly Floyd Mayweather) are there that we don’t know about? How many other samples have been destroyed in the manner of the samples taken from Peter Quillin and Winky Wright? What would happen if federal investigators put key players in boxing’s ongoing PED drama under oath?Victor Conte says flatly, “I think the relationship between USADA and Golden Boy needs to be investigated.”An Internet website isn’t the place to make judgments as to whether or not USADA has acted properly. Congress is. There’s an open issue as to whether USADA has become an instrument of accommodation. For an agency that tests United States Olympic athletes and receives in excess of $10,000,000 a year from the federal government, that’s a significant issue.If USADA has violated appropriate protocols, the consequences could be enormous. If, in fact, USADA has made special accommodations for Golden Boy, one has to wonder how many times it has made similar accommodations for other athletes in the past.This isn’t about a handful of athletes. It’s about the integrity of boxing and the well-being of all fighters.Someday, if it hasn’t happened already, a fighter who has been using PEDs will kill his opponent in the ring. Thus, in closing, it’s worth remembering the thoughts of Emanuel Steward.“Boxing isn’t like other sports,” Steward said several months before his death. “In boxing, a human being is getting hit in the head. None of us like to talk about it, but there’s a very real risk of brain damage. So to my way of thinking, anyone in boxing who’s part of using performance-enhancing drugs – I don’t care if it’s the fighter, the trainer, the strength coach, the conditioner, the manager, the promoter – that person is ruining the sport and doing something criminal.”Source: Max Boxing - Home