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Opinion Opinion | The Justice Department Is Turning a Blind Eye to White-Collar Crime

17:27  28 november  2021
17:27  28 november  2021 Source:   politico.com

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Progressives were thrilled this week when President Joe Biden picked Jonathan Kanter to lead the Justice Department’s Antitrust Division. Along with other recent nominations, the choice of someone who has fought Google, Apple and Amazon in the courts on antitrust issues shows that the administration is interested in pushing back on the runaway power of Big Tech.

Merrick Garland wearing a costume: Mag_GettyImages-1323711252.jpg © Photo by Win McNamee/Getty Images Mag_GettyImages-1323711252.jpg

But antitrust is just one part of the much broader landscape of corporate and white-collar law enforcement. And in almost every other respect, after four years of the Trump administration rolling back scrutiny on everything from consumer fraud to corporate tax evasion, there is little indication that Merrick Garland’s Justice Department is moving to put teeth back into Washington’s approach. Indeed, six months into Biden’s presidency, the DOJ seems to be paying virtually no attention to one of our country’s most pressing and persistent law enforcement problems.

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Data from across the federal government indicated that financial fraud and corporate misconduct were at all-time highs when Biden took office, and since then, the FBI, the Consumer Financial Protection Bureau and the Federal Trade Commission all released data that showed things had gotten only worse in areas of misconduct under their respective purviews.

Under the Trump administration, the number of white-collar criminal prosecutions — which had already been steadily declining — repeatedly hit all-time lows, according to data maintained by Syracuse University that covers everything from complex securities and tax fraud cases to crude but effective consumer fraud schemes. There was a further and significant dip during the pandemic and although there has been an uptick as the country has slowly returned to normalcy, we are still below the average, record-low pre-pandemic level.

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Prosecutions have not just been fewer but also less successful: The Wall Street Journal recently produced a data analysis confirming what seemed apparent anecdotally — that the DOJ has been losing a disproportionate number of its highest-profile white-collar criminal cases since the Obama administration.

It is difficult to quantify the exact impact of these trends. By some estimates, white-collar crime costs Americans $300 billion to $800 billion per year. Although that wide an estimate merits some skepticism, the uncertainty is due in part to the fact that the federal government does not collect data on the national prevalence of financial crime in the way that it does for other crimes. This is to say nothing of the personal impact on the millions of people who are victimized every year by financial fraud — a notoriously underreported crime because people are embarrassed to admit they have been victimized and are skeptical the government will actually do anything to help them, which, given the enforcement trends, is a depressingly rational concern.

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A slew of academics over the past year has raised increasingly loud alarms about this state of affairs and have offered a range of proposals to counter these trends, but there is no indication the Biden administration or anyone in a leadership position in the Justice Department has taken any interest outside of the antitrust context.

At the moment, like most of the department’s work, its efforts in this area are largely being run by holdover, acting and career officials, but a new president and attorney general can signal their law enforcement priorities when they appoint new and high-profile leaders — in much the way that Biden followed through on his campaign promises to prioritize civil rights enforcement and policing reform when he nominated Vanita Gupta and Kristen Clarke to senior positions in the department. The administration’s commitment to those areas and to antitrust policy is clear, but at the moment, Biden has not nominated anyone to run the DOJ’s Tax Division or a single new prosecutor at the U.S. attorney level — including in the jurisdictions where a substantial amount of the country’s most important white-collar criminal work takes place (Manhattan, Brooklyn, Chicago, Los Angeles, New Jersey, Northern Virginia and Washington, D.C.).

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The nominee for the head of the Criminal Division, which oversees the D.C.-based white-collar enforcement efforts, was recently confirmed, but neither he nor the Biden administration’s chosen interim head of the division have shown any meaningful interest in this area — through plaintiff-side litigation like the work Kanter, Gupta and Clarke did in their areas of expertise, or in public speaking or writing —much less offered an agenda of any sort. The same is true for the people whose names have been floated in the press as likely nominees for the major U.S. Attorneys’ offices.

The pandemic has made matters even more pressing. Major areas of pandemic-related fraud — in particular, consumer fraud and unemployment fraud — were largely ignored by the Trump DOJ, even though these were obvious problems in real time. The Biden DOJ itself seems to be struggling to wrap its head around the issue, having issued a surreal, back-patting news release on pandemic fraud enforcement in March, only to set up a task force on pandemic fraud months later; the belated change in posture was welcome notwithstanding the DOJ’s failure to provide any insight into what had changed about its assessment in the interim. More broadly under the Trump DOJ, everything from the department’s approach to corporate criminal investigations to specific enforcement initiatives grew increasingly disconnected from pressing, real-world problems, and there is no sign so far that the Biden DOJ will prioritize reversing that trend.

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There is no shortage of recommendations, as I and others have written. Among other things, the department should seek additional funding for this work, initiate a uniform federal effort to collect data on the national prevalence of financial crime, direct U.S. Attorneys’ offices to make white-collar crime a key priority for enforcement, revisit its corporate criminal enforcement guidelines, and work to improve stateside coordination between the DOJ and our regulatory agencies as well as global coordination between the department and its international law enforcement partners.

Needless to say, this is all much easier said than done, but before any of it could possibly happen, the Biden-Garland DOJ must actually take a concerted interest in the area and back it up with the commitment of high-level personnel and a considerable amount of time and energy. Every day that this does not happen, Americans are paying the price.

Justices' views on abortion in their own words and votes .
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usr: 1
This is interesting!