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Saturday, November 04, 2017
Five myths about white collar crime The rich and powerful do time, too. (Washington Post)
By Nicolas BourtinNovember 3
Nicolas Bourtin is a former federal prosecutor, a litigation partner at Sullivan & Cromwell and managing partner of the firm’s criminal defense and investigations group.
Bankers and government officials continue to feature prominently on our newspapers’ front pages — and not in a good way. Since the financial crisis of 2008, a string of political and corporate scandals has played out in our political and financial centers, and recent investigations of people close to President Trump, including Paul Manafort and Rick Gates, have produced indictments for money laundering and tax fraud. Corporate malfeasance, corruption and tax fraud are shrouded in misconceptions. Here are five enduring myths about white-collar crime.
MYTH NO. 1
Prosecutors fear prosecuting powerful defendants.
Earlier this year, nonprofit news site Rewire sought to explain “why the justice department is afraid to prosecute white collar criminals.” Likewise, Patrick Radden Keefe argued in the New Yorker this summer that “fears of collateral consequences” have prevented the government from going after corrupt bankers. Commenters assert that worry about toppling figures whose collapse could mean trouble for entire economies.
But if prosecutors are afraid of going after white-collar defendants, they have a funny way of showing it: Their tactics are the same ones they use in many investigations involving narcotics and violent crime, and being extremely rich and influential is no protection. Former assistant attorney general Lanny Breuer said in 2010 that the Justice Department has “begun increasingly to rely, in white collar cases, on undercover investigative techniques that have perhaps been more commonly associated with the investigation of organized and violent crime.” As Preet Bharara, a former U.S. attorney for the Southern District of New York, said, “Today . . . privileged Wall Street insiders who are considering breaking the law will have to ask themselves one important question: Is law enforcement listening?”
Federal prosecutors used months of wiretap evidence to build a suffocating case in 2009 against Raj Rajaratnam, who ran one of the largest hedge funds in the world. When the dust settled, the DOJ had secured the convictions of more than 50 people. Similarly, recent charges brought by special counsel Robert S. Mueller II show the same tools at work on corruption cases:threatening Manafort with prosecution to secure his cooperation against others involved with the Trump campaign. Campaign adviser George Papadopoulos’s plea agreement indicates that he has been cooperating with the Special Counsel’s Office since July.
MYTH NO. 2
White-collar defendants never serve real time.
In the wake of the financial crisis, publications such as Fortune and the Nation have sought to answer why its architects don’t do hard time for their crimes. “Why does the Justice Department appear to have given up on putting white-collar criminals in jail?” Fortune asked. Whenacademics began studying the subject in the 1970s, they noted that federal judges were typically lenient toward white-collar offenders.
Those days are over. Judicial discretion in sentencing was greatly limited by the adoption of the Federal Sentencing Guidelines in 1987, whose penalties for fraud were further enhanced after the Enron scandal broke in 2001. And although the Supreme Court held in 2005 that the guidelines were advisory and no longer mandatory for judges, sentences for white-collar defendants have been getting harshr, not more lenient.
According to the U.S. Sentencing Commission’s 2013 Report on Sentencing Trends, nearly 70 percent of all offenders sentenced under the guidelines for fraud received some prison time for their crimes in 2012. In 1985, that rate was about 40 percent. For crimes that caused a loss of at least $2.5 million, the same report revealed that offenders were sentenced under the guidelines to an average of nearly five to 17 years in prison in 2012. In 1985, by comparison, the average sentence for white-collar crimes was just 29 months.
In January, legal blog Above the Law wondered, “Is Trump the end of FCPA enforcement?” He has criticized the Foreign Corrupt Practices Act (FCPA), and Mother Jones reported in April that “some experts fear the Trump administration’s long-term goal may be to curb enforcement of the Foreign Corrupt Practices Act, if not neuter the law.”
No one went to prison as a result of the financial crisis.
“Not one major executive has been sent to jail for their role in the crisis,” David Dayen wrote in the Guardian in 2014. The myth that criminal prosecutors balked when the time came to hold Wall Street executives accountable for the financial crisis is so common that even senior DOJ officials have sought to excuse it.
But according to the Special Inspector General’s Office for the Troubled Asset Relief Program, the federal law enforcement agency charged with investigating misconduct related to the financial crisis and the subsequent bailout, 56 bankers and Wall Street traders employed by institutions that received TARP funding — including 13 chief executives — have been sentenced to prison for crimes committed in the lead-up to, during and in the aftermath of the financial crisis. This goes far beyond Kareem Serageldin, the Credit Suisse trader who many publications claim to be “only” top banker to go to prison for activities related to the financial crisis. Edward Woodard, former chief executive of the Bank of the Commonwealth in Norfolk, for instance, wassentenced to more than two decades in prison in 2013 for charges of massive fraud related to the mortgage crisis.
MYTH NO. 5
Financial crime is the same as robbery or theft.
Critics of Wall Street often accuse bankers of “robbing” people, as Hamilton Nolan claimed in a 2015 Gawker article, or of being outright “thieves,” as characterized in a 2011 AlterNet piece. And although it’s true that losing a chunk of one’s life savings may be as traumatic for the victim as a home burglary, from the perspective of the perpetrator, the psychology is quite different.
Robbery or outright theft requires a criminal to confront the victim, but white-collar crime rarely puts the perpetrators in such close proximity to the victims. Indeed, insider trading, price-fixing and bribery may seem victimless to the perpetrators — the only harm is to the “integrity of the market,” or, if any concrete harm can be identified, it is so diffuse as to be imperceptible to those who suffer it. Without the same psychological stop signs that signal that one is about to break the law, many white-collar criminals cannot identify in hindsight the moment they crossed the line. Instead, as researcher Eugene Soltes has pointed out, they find that they simply slid gradually and inexorably over it.