Orson Swindle, who served as an FTC commissioner from 1997 to 2005, says there are a number of practices that, if HealthCare.gov were a private entity, would result in its being “taken to the shed and horsewhipped” by government regulators.
President Obama’s oft-repeated falsehood, “If you like your plan, you can keep your plan” — something the administration knew was untrue — would almost certainly be a textbook case of deceptive advertising, punishable under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practice in or affecting commerce.” This includes a “representation, omission or practice that is likely to mislead the consumer,” such that the consumer would be “likely to have chosen differently but for the deception.”
... Private companies engaged in HealthCare.gov’s kind of behavior would face severe consequences, Swindle tells National Review Online. “Businessmen would lose their businesses, salesmen would lose their licenses — that’s the kind of thing we are talking about here,” he says. “The bottom line is that no private entity would be allowed to get away with what the Obama administration is trying to get away with.”
Swindle served both Democratic and Republican administrations at the FTC, so this isn't conservative ax-grinding. The reality is that social contract only works -- and we only grant immunities to public servants -- based on the premise that elected representatives and public servants will be honest and devoted to the public good. Lying to the public is a fundamental breach of that social contract. The normal course for redress is to vote the scoundrels out, not to prosecute them.
On the other hand, I'm not sure that the federal criminal fraud statutes don't apply to government employees. And, notably, a "scheme or artifice to defraud," as defined by 18 US 1346, "includes a scheme or artifice to deprive another of the intangible right of honest services." Moreover, as you consider the next scandal to erupt from Obamacare -- which will undoubtedly involve widespread identity theft by Obama's "navigators" -- think about this federal criminal statute, 18 USC 1905:
Whoever, being an officer or employee of the United States or of any department or agency thereof... publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties... which information concerns or relates to... the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person... shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment.
I'm just sayin'. We may need a special prosector soon.