MoveOn.org has sent a finding of fact to the Public Integrity Section of the Justice Department, asking that they initiate an investigation into whether Mitt Romney lied on a federal financial disclosure form.

This is an issue that arose back in July, during the debate over precisely when Romney left his job at Bain Capital. In his 2011 federal financial disclosure form, Romney stated that he was “not involved in the operations of any Bain Capital entity in any way” after February 1999. Evidence emerged since then showing his signature on multiple official documents of Bain and its entities, and attending meetings of Bain subsidiaries. MoveOn provides all this supporting evidence in a memo. This establishes that Romney was involved in Bain Capital operations as the “sole director, CEO and lone shareholder” of the company. This includes signing a number of SEC forms after 1999 on acquisitions and the like, where he was the sole shareholder and therefore had to hold a decision-making role. Indeed, Romney earned a salary as an “executive” of Bain Capital in 2000 and 2001. Under the law, this body of evidence contradicts the categorical on that federal form.

The finding of fact also points out that Staples, Inc., a Bain-owned company, filed a proxy statement in 2001 that listed Romney as a director of the company. “Under federal securities laws,” says the memo, “these representations must be accurate, and information is collected from the filing company about its directors through a questionnaire sent to those directors. If Gov. Romney provided false information to Staples that would cause Staples, in turn, to file a false Form 14A proxy statement, that would itself be aiding and abetting the making of a false statement, a criminal
violation of the False Statements Act.”

Bain Capital was structured as a Delaware corporation. If Romney, as the “sole director” of the company, was put into a passive role without reasonable oversight of the corporation, this would violate the “duty of care” statute under which corporations form in Delaware law. It would mean that the corporation operated under no directors. So either Romney violated the federal disclosure laws, or as a passive director who failed to oversee the affairs of Bain Capital, he violated the laws of the state of Delaware.

In a letter to Jack Smith, at the Public Integrity Division of the Justice Department, MoveOn’s Justin Ruben writes, “The purpose of requiring candidates to file a personal financial disclosure form, under the Ethics in Government Act, is to ensure that the electorate is fully informed about the financial interests and fiduciary and other positions of the candidates. For a candidate to make misrepresentations on that form is not only a federal crime but a serious breach of the public trust.”

The federal law suggests that, in order for Romney to be guilty of criminal liability, it would have to be proved that he knew the statement was false at the time that he put it on the federal financial disclosure form. The memo says that “Further investigation would obviously be required into whether Romney intentionally made false statement and knew they were false at the time he made them… Whether he did so will likely turn on his understanding of ‘active role’ and ‘involvement in the operations’ of Bain.” This is where MoveOn wants DoJ to begin their investigation.

MoveOn provides some additional analysis here. The Boston Globe asked the Romney campaign about this, and they dismissed it as the work of a politically motivated organization.

Presumably, that would be a hurdle to the Justice Department initiating an investigation in the midst of a highly charged Presidential election. But MoveOn’s legal analysis makes a compelling case to at least ask these questions.