Monday, February 13, 2017

Jeff Sessions: A DOJ Guy. What Does It Mean For White Collar Prosecutions?

At the end of the day, the new Attorney General is a DOJ guy--a veteran AUSA and U.S. Attorney. He appears to have real reverence for the history and traditions of Mother Justice, and I'm not just talking about withholding exculpatory information from the defense.  Don't expect any sudden, shocking institutional changes in the day to day operations of DOJ's prosecutorial regime. Like any Attorney General in a new Administration--particularly a new Administration with a profoundly different ideological approach than its predecessor--there will be substantive shifts in priorities. Certain crimes will go to the head of the class. Ed Meese latched onto Zero Tolerance. Jeff Sessions will have his pet programs too. We have already seen some unfortunate saber rattling on violent crime and asset forfeiture. But things should settle down. President Trump has nominated Rod Rosenstein to be Deputy Attorney General. Rod is also a Department guy, who has served throughout DOJ for Democratic and Republican Attorneys General. Although Rod is a solid Republican, he has a longstanding reputation for non-partisanship. Rosenstein has been U.S. Attorney for the District of Maryland for the last 12 years. You don't get appointed by President Bush, and kept around by President Obama for two terms in a state with two liberal Democratic Senators without being competent and non-partisan in your prosecutorial priorities. Unless you have pictures of somebody. But I digress. Bottom line, it is very difficult to envision anything like the Ted Stevens prosecution occurring in a Department with Sessions and Rosenstein in charge. 

What about white collar? Both Sessions and Rosenstein believe strongly in individual accountability for criminal wrongdoing. They truly do. Expect to see a real focus, not just a bullshit press release focus, on going after high-end human white collar targets. If I am right, this will be one of the biggest turnarounds from the changeover in parties at DOJ. Not saying this is good or bad. It is what it is. Expect the overreaching that always comes with such efforts. I've commented for years about the strange phenomenon of GOP AGs being far more aggressive on white collar crime than their Democratic counterparts. Reno was an exception, but she was Clinton's accidental AG--a totally unexpected third choice. Web Hubbell was supposed to be the real power behind the throne. Not long before he was forced to resign, Hubbell called in First Assistants and Criminal Chiefs from U.S. Attorney Offices around the country and harangued them for being too tough on white collar crime. Why is this so--this odd GOP aggressiveness on white collar crime within DOJ? I expect it is embarrassment and the fear of bad press clippings. We are the big money party so we have to be seen as aggressively targeting white collar crime. This mindset, and a press uproar, seem to have spawned the massive resources thrown at S&L prosecutions in the late 80s and early 90s. At any rate, when the next financial scandal hits, let's at least hope DOJ doesn't overwhelmingly target lower middle class players who merely went along with the Zeitgeist. I can't tell you many people of color and immigrants, low level loan officers and the like, were aggressively prosecuted by Obama's DOJ while the true players went untouched. In this regard, for Sessions, there is nowhere to go but up.


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