The Obama Administration’s Prosecutorial Overreach

The Cato Institute’s Walter Olson highlights several recent high-profile losses suffered by the Obama Justice Department in its overzealous enforcement of the Foreign Corrupt Practices Act, “the law that criminalizes many of the sorts of official payments that alas typify the business climate across much of the globe.” As Olson notes, “DoJ’s most stinging embarrassment of all came last month” in a decision that included this rebuke from federal Judge Howard Martz:

it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Spartacus||

    it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.

    And nothing happened.

  • Federal Dog||

    "And nothing happened."

    Just watch the liars get promoted the bench.

  • Federal Dog||

    promoted TO the bench

    It's late.

  • mad libertarian guy||

    5:15 is late?

    You're either 3 or 83.

  • ||

    The court kinda rattles off a number of crimes there. And usually courts get really pissed off when you do shit like lie to the judge, ignore the judges orders, etc.

    But I'm not seeing any followup here.

    But there's no double standard. Right?

  • juris imprudent||

    The judge might kick it over to the Bar for an ethics investigation.

    Mwuhahahahhahaha

  • Old Salt||

    Kicking it to the bar is often the judiciary equivalent of writing "so and so is a fag" on the bathroom wall...

  • ||

    What about the agent? Lying to a Grand Jury doesn't land him/her in jail for contempt and indicted for perjury?

  • Spencer||

    So, is this where someone said they could prosecute for a what may or may not be a crime on foreign soil?

  • mustard||

    Like the Bushpigs didn't do it too.

  • ||

    That's the moral high ground, right here.

  • juris imprudent||

    Sometimes the moral high ground is on top of a fire ant mound.

  • rather||

    onetime I made binoculars for my dad but he got real made because I made them out of hair and snot.

  • ||

    The Department of Justice is such a fucking joke. Obama's made it a bad parody of a parody.

  • panimal||

    The FCPA is one of my favorite laws to hate. The FCPA makes it illegal for companies (not even US-based companies, but any companies with a US presence) to "bribe" (no adequate provisions are made as to what is a legitimate form of corporate hospitality and what is a bribe) any "foreign officials" in other countries in pursuit of winning contracts. So, it turns corporations into police officers and forces them to invest heavily in compliance programs staffed with expensive legal professionals that raise prices for everyone everywhere. Also, "foreign official" is not well defined, so it is still a big mystery in the legal community as to what that actually means. It's not just obvious state officials, like members of parliament, but could also be employees in state-run industries (like hospitals or mines).

    And even though the FCPA has been in place since the 1970s, the DOJ/SEC didn't really use it until after the housing bubble popped and after the public started screaming for corporate blood. Prosecutions have more than tripled since then and continue to grow every year. Furthermore, only politically unpopular corporations or industries seem to be subjected to these kinds of probes (most egregiously, Goldman Sachs and their interactions with the Libyan sovereign wealth fund).

    The case cited above is the result of a botched undercover sting operation against gun and weapon manufacturers. The DOJ has gone from suspiciously not caring at all about corporate bribery in 1977 to suddenly staging elaborate, if mismanaged, sting operations? Ugh. The whole law is just a big ugh.

  • Loki||

    If they made the law clear cut and easily understood, think of how many of those legal professionals in corporate compliance departments would be out of a job. Also, with clearly defined legal definitions it would make it that much harder to go after politically unpopular corporations. That's no way to run a banana republic man!

  • Gray Ghost||

    It's a big one in the Oil and Gas industry too. More than a few FCPA actions for both E&P and services companies. From those I talk to in the industry, the behavior being sanctioned keeps shifting. It sounds like the want the MOCs to be mind readers. Are facilitating payments---giving Obeidah at Lagos Customs Control a $50 to get your passport back---still allowed, or are they cracking down on those too?

    As to RC's point, I too would be expecting, with that kind of preamble in the opinion, a statement like, "the record of this trial has been forwarded to the U.S. Attorney for (whomever investigates misconduct in the USA's office) for further investigation." I had thought that material misrepresentations to a court carried more of a sanction from either the Bar association or from a criminal judge than "Don't do this again."

    R.C., what happens if you make a knowing, material misrepresentation to a federal judge in a filed pleading or affidavit? I'm guessing it begins with 'pris- and ends with -on'.

  • Bünzli||

    "it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court."

    In other words, business as usual. Wonder what went wrong this time.

  • juris imprudent||

    What went wrong? Someone noticed.

  • ||

    I never really thought about it liek that before.

    www.privacy-toolz.com

  • ||

    Love it !

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement