Tuesday, May 23, 2017
Trac reports - "The latest available data from the Justice Department show that during the first six months of FY 2017 the government reported 152 new environment prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 304 for this fiscal year. According to the case- by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate would be the lowest ever recorded since the Justice Department started tracking its environmental prosecutions over two decades ago." For more information and data see here.
(esp)(w/disclosure that she received her BS degree from Syracuse University).
Saturday, May 20, 2017
Scattershooting, while wondering whatever happened to John B. Henderson.
The appointment of Bob Mueller as Special Counsel sends an unmistakable signal to every politico, white collar lawyer and potential target in DC. It's time to get serious. Think Fitzgerald on steroids. This will be a real investigation, with a real grand jury, and real prosecutors who know how to investigate, prosecute and keep their mouths shut. Expect plenty of collateral damage as well. There won't be any immunity giveaways or hand-wringing negotiations over the breadth of subpoenas.
A number of commentators have suggested that Mueller is only "overseeing" the Russia Investigation, apparently in the same sense that an Attorney General oversees various criminal investigations within DOJ. Get a grip. Mueller will be totally involved in all strategic and tactical aspects of the case. He will be hands on. For God's sake, he and his lieutenants just resigned from their partnerships at Wilmer Hale to take on what could be one of the most significant criminal investigations in U.S. History, an investigation with profound implications for the country. He'll be there every day, every step of the way, and in total control.
In today's WSJ (subscription required), Kimberly Strassel plants the seeds, in The Mueller Caveat, for a future Trump attack on Mueller. Of course Mueller's integrity is "unquestioned" but Strassel asks whether he can be "objective" about his old buddy Comey. This question assumes that Comey's firing will loom large in the Russia Investigation. I seriously doubt it. The contacts between Comey and President Trump in the period between inauguration and firing will certainly be looked at as a key to President Trump's intent and motives. But, barring new information, the idea that the firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.
Meanwhile, over on the left, the Comey flacks are out in force. It's comedy time at the New York Times with Saint James and Ben Wittes in starring roles. Michael S. Schmidt's NYT puff piece on Comey is a classic of the genre. Lawfare's Ben Wittes, an admitted Comey confidante, is interviewed and holds forth for the record. According to Wittes, Comey, pre-firing, had "concerns" about Rod Rosenstein's likely confirmation by the Senate. "He said, 'I don't know. I have some concerns. He's good, he's solid but he's also a survivor and you don't survive that long without making some compromises and I'm concerned about that.'" Translation: "Anyone who might consider firing me is by definition compromised." What a hoot. Comey would know all about survival and compromise. He's a 17 year DOJ veteran, who left at one point to take a $6 million per year job at Lockheed. Rosenstein on the other hand, prior to becoming DAG, spent his entire career in public service without a hint of impropriety. His reputation for straight-shooting is impeccable. Notably, Schmidt nowhere mentions Wittes's recent and unhinged hit piece on Rod Rosenstein in Lawfare.
I have a slightly different interpretation of Comey's concerns. I would have been concerned too, had I been in his shoes. Comey had been widely and correctly condemned by a broad and impartial sector of the legal and law enforcement community for his improper interference in the political process--an interference that violated longstanding DOJ policies and usurped DOJ's prosecutorial role. But Loretta Lynch was too politically damaged to fire him and Sally Yates, as a lame duck, was too weak. Comey knew that Rosenstein had the integrity and the stature to pull it off. Meanwhile, also in classic fashion, the broadcast media parroted the NYT. Joe Scarborough on Friday morning's show breathlessly reported Comey's "concerns" as if Comey, yesterday's goat, is now the nation's ethical ombudsman.
Whatever happened to the idea that a respected public servant can make a serious mistake, even one that justifies his or her firing, and still be judged an honorable person based on the whole of his or her career? I know numerous people within the FBI and DOJ who have worked with Comey and have enormous respect for his abilities and integrity. This doesn't mean that he is flawless or that his conduct during the election renders him untouchable. By all means, let's have a public airing of all of the circumstances surrounding Comey's firing, assuming that it can be done without compromising Mueller's work. There is little doubt of President's Trump motivations. But let's not conflate the impropriety of President Trump's motives with the improprieties catalogued in Rosenstein's Memo.
Thursday, May 18, 2017
As I mentioned in a post a few weeks ago, the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program for the event is now available online. What was already shaping up to be a fascinating conference will now be even more interesting with news breaking overnight of another major Brazilian corruption scandal.
According to the New York Times, the Brazilian newspaper O Globo alleged overnight that a food company executive taped a conversation with Brazilian President Michel Temer in March that included discussions of "hush money" being paid to a jailed politician. According to the the New York Times, President Temer is also alleged to have told the food company executive to pay a lawmaker in relation to a dispute at a company facility. The President of Brazil issued a statement in response to the O Globo story denying the allegations, and the New York Times noted in its article that the paper had not yet independently confirmed the allegations.
According to The Rio Times, the food company executive in question, Joesley Batista, told federal prosecutors about the conversation as part of his cooperation pursuant to a plea bargain. Batista had been implicated in the Carwash corruption investigation in Brazil. After news of the allegations broke, lawmakers from several political parties called for an investigation. There were also calls for the President to resign. According to The Rio Times, PSB national president Carlos Siqueira told local media, "The resignation of the President has become an imperative not to aggravate the crisis further. The Temer government ended today."
This latest alleged scandal comes at a time when Brazil is still reeling from the fallout of the Petrobras scandal, a case that led to the downfall of former Brazilian President Dilma Rousseff. These latest developments will certainly be ones to watch as corruption allegations continue to plague the Brazilian government.
Co-blogger Sol Wisenberg (here) called for Rod Rosenstein to "Hunker down Rod. Your country needs you." There are many who feared that the appointment of a special counsel would not be as neutral as Deputy Attorney General Rod Rosenstein. The appointment of special counsel/prosecutor could also delay a current investigation - after all anyone new would have to get up to speed. But the DAG outdid himself here in appointing former FBI Director Robert S. Mueller III.
The real hero of the story still remains Deputy Attorney General Rod Rosenstein, and hopefully history will remember this.
Monday, May 15, 2017
I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.
The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.
Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.
As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.
Wednesday, May 3, 2017
In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China. It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field.
I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program is now available online, and it is shaping up to be another spectacular event.
The program includes the following panels:
- A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
- Navigating Cross Border Government Investigations and Prosecutions
- Trends Regarding Global Anti-Corruption Enforcement
- A View of Global White Collar Crime from the Bench
- Preparing for the Globalization of Corporate Internal Investigations
- Navigating Global Compliance Trends and global Enforcement Priorities
I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments. Register here while space is still available.
Monday, April 24, 2017
Attorney Preston Pugh joined Miller & Chevalier Chartered in the litigation Department. (see here). Preston "Pugh counsels and defends clients in complex civil and criminal litigation, internal investigations, and government investigations. His practice includes matters involving the U.S. Foreign Corrupt Practices Act (FCPA), the False Claims Act (FCA), government contracts, and corporate ethics and governance." He participated als0 has been an instructor in the NACDL White Collar Criminal Defense College at Stetson.
Thursday, April 6, 2017
My old friend Paul "Bunky" Rosenzweig has written an informative primer on immunity from prosecution in the wake of news that former National Security Advisor Mike Flynn wants immunity, purportedly so that he can "tell all." Well, as my Dad used to say, "People in Hell want ice water." Here is Paul's piece from Lawfare. There was an initial assumption in many social media outlets that Flynn's quest for immunity signaled impending doom for the Trump Administration. How silly. If that's true, then why has President Trump stated that Flynn's request should be granted? Who wouldn't want transactional or derivative use immunity from Congress? If Flynn were to publicly testify after such a grant, future criminal prosecution of him would be virtually impossible. See Ollie North and Admiral Poindexter. So, if Flynn gets immunity from Congress it would either be a colossal act of Congressional stupidity or a scandal of world class proportions. Flynn appears to have very able white collar counsel, so look on this as a bold ruse. Why not at least try it? Regarding immunity granted by a DOJ letter or a federal district court order at DOJ's request, we've learned from the Clinton Espionage Investigation that even DOJ grants of immunity by the truckload don't guarantee a successful prosecution--of anybody. Bottom line: Assuming that DOJ has a case against Flynn he is unlikely to get immunity at all. He would instead get some kind of plea deal. In either circumstance, he would not get it absent an in person proffer. Regarding proffers, and how they should be viewed from the defense perspective, see my old article on proffers from Findlaw. Nothing much has changed since I wrote it.
Wednesday, March 29, 2017
Former Illinois Congressman Aaron Shock's attorneys filed two motions in federal court yesterday, alleging massive government misconduct in the investigation that led to their client's indictment on multiple misconduct and fraud related charges. The allegations center around the government's alleged use of one of then-Congressman Schock's junior staffers as a confidential informant who purportedly recorded conversations covered by the Speech and Debate Clause and the attorney-client privilege, and also stole various privileged materials. The government has apparently conceded that some of the informant's actions were improper and has promised not to use certain evidence he obtained, but if even half of Schock's allegations turn out to be true it will constitute a major embarrassment to DOJ. You look at the facts detailed in Schock's motions and have to be wondering what the government was thinking in using these kinds of tactics in the wake of the Jefferson case and Abramoff era investigations that brought Speech and Debate issues to the fore. There is also an allegation that government prosecutors gave incorrect legal advice to the grand jury. Schock wants more information about the government's use of the informant and access to additional grand jury materials. Here are the Schock Memorandum in Support of Motion for Discovery Regarding Use of Confidential Informant and the Schock Memorandum in Support of Motion for Discovery of Grand Jury Materials. Here is coverage from The Hill and the Washington Post. More to come as this case progresses. Schock is represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuie Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa. The case is being prosecuted out of the Central District of Illinois.
Sunday, March 12, 2017
It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common. This is particularly troublesome as many were finishing up work on current cases. Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post. I don't know all 46, but some that I do are mentioned below -
David Capp, U.S. Attorney Northern District of Indiana - Attorney Capp had planned to retire in June 2017. He issued a thoughtful statement here. He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out." Thank you David for your dedication and professionalism. In the statement issued he notes -
"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."
Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).
Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.
Addendum - Other statements regarding resignations -
District of Rhode Island - United States Attorney Peter F. Neronha Stepping Down
District of Minnesota - Statement From U.S. Attorney Andrew Luger
Eastern District of Arkansas - U.S. Attorney Christopher R. Thyer Announces Resignation
Friday, March 10, 2017
The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.
Acting Assistant Attorney General Criminal Division Kenneth A. Blanco was the keynote speaker for the final morning's program of the ABA White Collar Crime Conference of 2017. He spoke about transnational and money laundering crimes and government prosecutions in this area. He emphasized the importance of international cooperation. He remarked that there has been an increase in multinational investigations and it is important to have strong relationships with our counterparts worldwide.
He used the word "global" 14 times, the word "international" 25 times, and "cooperation" 11 times. International collaboration and cooperation were without doubt his theme.
He spoke briefly about the Fraud Section Pilot Program, stating:
"Before I conclude, I would be remiss if I did not comment on the Fraud Section’s “Pilot Program.” Last year, the Fraud Section implemented a one-year “Pilot Program” for FCPA cases, to provide more transparency and consistency for our corporate resolutions. The “Pilot Program” provides our prosecutors, companies and the public clear metrics for what constitutes voluntary self-disclosure, full cooperation and full remediation. It also outlines the benefits that are accorded a voluntary self-disclosure of wrongdoing, full cooperation and remediation. The one-year pilot period ends on April 5. At that time, we will begin the process of evaluating the utility and efficacy of the “Pilot Program,” whether to extend it, and what revisions, if any, we should make to it. The program will continue in full force until we reach a final decision on those issues."
He ended with the lyrics from a 1960s song from Martha and the Vandellas – "Nowhere to run baby, Nowhere to hide."
A full copy of his talk can be found here.
Thursday, March 9, 2017
Hon. Paul L. Friedman moderated the judges panel. The judges on the panel were Hon. Gregg Costa, Hon. Charles Breyer, Hon. Nannette Jolivette Brown, Hon. Amy J. St. Eve, Hon. Kathleen M. Williams, and Hon. Carlos Mendoza.
Does your life experiences influence your judging? The judges talked about sentencing.
Hon. Carlos Mendoza spoke about how his diverse background has affected his sentencing. Hon. Amy J. St. Eve noted that judging is the most difficult thing that judges do. Hon Charles Breyer noted that there is no such thing as a "right sentence," but there is something called a "wrong sentence."
Some pointers offered:
- Sentencing memos are important
- "Educate us on your client"
- "Know your judge"
- Some Judges may not want 3 or 7 pages of Booker, and then finally saying -now here is what you can do - "I already know that."
- "Watch what your clients do" -Problems when the offender doesn't accept responsibility
- Come up with a better argument then the folks at the country club don't talk to him any more
- Not helpful when government just says - we want a sentence in the guidelines range
- If prosecutor and defense attorney agree on something (C1c), more inclined to do it
Deferred prosecution agreements were discussed as well as the managerial aspects of the judicial position. The panelists offered many reflections in thenearly two hour discussion. They also looked at high profile cases and whether they had any special procedures in these cases. Justice Breyer said the less said, the better. Hon. J. St. Eve said - "I don't read the coverage in a high profile case." They skipped over discussing Brady, but did discuss technology.
One question was whether the judge allowed the defense counsel to see the probation officer's recommendation. It was noted that the judges differed on whether the judge would allow counsel to see this.
Alan M. Dershowitz, the morning speaker, started by telling how he missed teaching. The amount of perjury committed by defendants is small in comparison to the amount of lying by police officers. He talked about how some witnesses are told not only to sing, but to compose. He noted that perjury in civil cases is pervasive. Perjury in civil cases, however, is seldom prosecuted. He also noted that most perjury does not occur on direct examination, but rather on cross-examination. Also he noted that there are often lies in depositions. He ended by saying that we should not be tolerating perjury, and also that we should be focusing on perjury beyond defendant perjury.
Wednesday, March 8, 2017
This is the first time the ABA White Collar Crime Conference had a panel focused on "Due Process on Today's Campus: Handling IX Abuse and Harassment Cases." Moderating this conference was Marcos Hasbun. Panelists were Carolina Meta, Thomas C. Shanahan, and Hon. Nancy Gertner. Many may think this is outside the scope of white collar criminal matters, but attorneys in the white collar area are often involved in the internal investigations for schools and criminal defense counsel can be called on in representation of clients - both individuals accused and victims.
Hon. Nancy Gertner noted that this was initially regulation guidance that was not issued with notice and comment. It has had earth shattering consequences, as described by Hon Nancy Gertner. The preponderance of the evidence standard being used was noted. But unlike ordinary civil cases, you don't have discovery. The panel discussed the "Dear Colleague" letter. She also noted the mandated procedures is how it has played out. Thomas Shanahan discussed the parallel proceedings that can occur with law enforcement and the university disciplinary proceeding.
It was noted that the university is under a mandate to move things along in 60 days. It was also noted that case lines are developing on two different tracks, including those arguing the denial of due process rights by the university.
Some argued that the process is focused on due process rights of the individuals making the accusation. But it was also noted that some states, like North Carolina, permits counsel during the proceedings for the respondent. It was noted it can be beneficial for counsel for the respondent to get the outside lawyer involved.
One of the opening panels of the conference was a breakout on Pre-trial Practice in Federal Criminal Cases. The panel included Hon. Cecilia Altonaga, Professor Ricardo Bascuas, Ryan O'Quinn, David Markus, and Vanessa Snyder. The moderator was Andrew Feldman.
The panel looked at motion filing, bail, and admission and exclusion of evidence as some of the topics for discussion.
From the prosecutor perspective Ms. Snyder emphasized the benefits of defense counsel calling prosecutors before filing motions. "See if you can work it out." It would lead to a more productive result, she stated. She stated that then if it is necessary you can file the motion if you can't work it out.
Judge Altonaga emphasized having a plan when filing pre-trial motions. Is it getting you to your goal or are you alienating the court and prosecutor. Pre-trial motions can be used to educate the court.
David Marcus spoke about the insignificant number of folks who skip on a bond and how the failure to give a bond proves detrimental to the system. Judge Altonaga spoke about the risk of flight standard. It helps if there are local ties, that is ties to the United States exist.
Professor Bascuas noted the increased number of individuals in prison and the decreased number of trials.
Ryan O'Quinn noted the long relationship that the prosecution and defense have prior to Indictment in white collar cases.
The panelists also discussed the admission and exclusion of 404(b) evidence and motions in limine.
Audience questions turned the discussion in a different direction - Brady.
Monday, March 6, 2017
U.S. Attorney Wifredo A. Ferrer Joins Holland & Knight as Head of Global Compliance and Investigations Team
Holland & Knight has announced that Wifredo A. Ferrer, U.S. attorney for the Southern District of Florida, will join the firm as a partner in its Miami office. Mr. Ferrer will lead the firm's Global Compliance and Investigations Team, which focuses on corporate compliance and government investigations within the firm's White Collar Defense Practice. Read more here.
The National Association of Criminal Defense Lawyers (NACDL), the leading national bar association representing the entire defense bar, is seeking a Counsel to work in its White Collar Crime Policy Department on a variety of white collar criminal defense and overcriminalization initiatives. This staff person is a member of NACDL’s national affairs team and works under the Director of White Collar Crime Policy. For more information, see here.
Friday, February 17, 2017
John P. Anderson (Mississippi College School of Law) has a new Article titled, When Does Corporate Criminal Liability for Insider Trading Make Sense? published in 46 Stetson L. Rev. 147 (2016). The abstract reads -
Corporations are subject to broad criminal liability for the insider trading of their employees. Critics have noted that this results in a harsh irony. “After all,” Professor Jonathan Macey argues, “it is generally the employer who is harmed by the insider trading.” In the same vein, former chairman of the Securities and Exchange Commission (SEC) Harvey L. Pitt and Karen L. Shapiro point out that, “[f]ar from being responsible for their employees’ violations of the law…most of the employers who have had the unfortunate experience of employing [insider traders] are in fact the only true victims, in an otherwise victimless crime.”
It is clear that not all insider trading is victimless, and not all employers of insider traders are innocent. But I am convinced that these critics are correct to point out that the current enforcement regime is absurdly overbroad in that it affords no principled guarantee to corporate victims of insider trading that they will not be indicted for the crimes perpetrated against them.
The law should be reformed to insure that corporations are only held criminally liable where they are guilty of some wrongdoing. Section I of this Article outlines current law in the United States concerning corporate criminal liability in general. Section II then looks at corporate liability for insider trading under the current regime. Section III explains why the current regime is absurdly overbroad and in dire need of reform. Section IV then points the way to some reforms that would render corporate criminal liability for insider trading more rational, efficient, and just.