Thursday, May 7, 2020
Here is a copy of the Government's Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn - Download U.S. v. Flynn--Government Motion to Dismiss (1) But will it be as easy as some may think? Commentary to follow.
Of course the Bridgegate (Kelly v. United States) case was reversed by the Supreme Court here. And of course, it was unanimous. (Just like McDonnell)
Justice Kagan authored the 12 1/2 page decision. Yes, the court did note that the lanes leading to the George Washington Bridge were realigned and that "they did so for a political reason - to punish the mayor of Fort Lee for refusing to support the New Jersey Governor's reelection bid." But the Court holds, "not every corrupt act by state or local officials is a federal crime." Here are some key points:
- This decision reminds us that no matter how many times the government tries to get around the "money or property" element of the statute - it will not work.
- The Court makes it clear that regulatory activity is not property - repeating its holding from Cleveland.
- "Employee's labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme." The Court later says, "[b]ut that property must play more than some bit part in a scheme: It must be an 'object of the fraud.'" "Or put differently, a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme."
- The Court reminds readers of the Skilling opinion - "We specifically rejected a proposal to construe the statute as encompassing 'undisclosed self-dealing by a public official' even when he hid financial fraud interests."
Many will not like this opinion, but it really is good to see for several reasons. For one it shows a united Court interpreting a statute consistently. Two it shows that when the government goes to stretch the statute it will not be tolerated. Three it puts back on the states the police power to stop activities within their powers. And most importantly, although the Court does not state this, the decision sends a message to the public of the importance of the ballot box - if you don't like political activities, voting is your place to express it.
Sunday, May 3, 2020
Professor Miriam H. Baer of Brooklyn Law School recently posted on SSRN a chapter titled Designing Corporate Leniency Programs, to be published in the forthcoming book Cambridge Handbook on Compliance (D. Sokol & B. van Rooij eds.). The Abstract states:
"Corporate leniency programs promise putative offenders reduced punishment and fewer regulatory interventions in exchange for the corporation’s credible and authentic commitment to remedy wrongdoing and promptly self-report future violations of law to the requisite authorities.
Because these programs have been devised with multiple goals in mind—i.e., deterring wrongdoing and punishing corporate executives, improving corporate cultural norms, and extending the government’s regulatory reach—it is all but impossible to gauge their “success” objectively. We know that corporations invest significant resources in compliance-related activity and that they do so in order to take advantage of the various benefits promised by leniency regimes. We cannot definitively say, however, how valuable this activity has been in reducing either the incidence or severity of harms associated with corporate misconduct.
Notwithstanding these blind spots, recent developments in the Department of Justice’s stance towards corporate offenders provides valuable insight on the structural design of a leniency program. Message framing, precision of benefit, and the scope and centralization of the entity that administers a leniency program play important roles in how well the program is received by its intended targets and how long it survives. If the program’s popularity and longevity says something about its success, then these design factors merit closer attention.
Using the Department of Justice’s Yates Memo and FCPA Pilot Program as demonstrative examples, this book chapter excavates the framing and design factors that influence a leniency program’s performance. Carrots seemingly work better than sticks; and centralization of authority appears to better facilitate relationships between government enforcers and corporate representatives.
But that is not the end of the story. To the outside world, flexible leniency programs can appear clubby, weak and under-effective. The very design elements that generate trust between corporate targets and government enforcers may simultaneously sow credibility problems with the greater public. This conundrum will remain a core issue for policymakers as they continue to implement, shape and tinker with corporate leniency programs."