White-Collar Crime

The Presidential Candidates And White-Collar Crime

What would the top presidential candidates do -- if elected -- with white-collar criminal prosecutions?

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(Photo by Mark Wallheiser/Getty Images)

(Photo by Mark Wallheiser/Getty Images)

I love presidential election season. If it weren’t for how massively serious it is for the country and the world, I wish it never ended. People come together and talk about they think the government ought to be doing and what our country ought to look like, unbounded by the coarse realities of governing.

And they insult each other.

Between the Iowa caucuses and next week’s New Hampshire primary, I thought it would be appropriate to wade into what the top presidential candidates would do — if elected — with white-collar criminal prosecutions.

This matters both to important policy issues around overcriminalization and to the prospects of the white-collar bar. After 9/11, when the FBI shifted its focus to terrorism, there were lean times in white-collar shops. If winter is coming for people who only represent folks charged with white-collar crimes, now’s a good time to find a heavy coat.

I will note, before I start, that the one candidate who has views that are most clear — Rand Paul — has suspended his campaign. It’s hard to be a criminal defense lawyer without cultivating a libertarian streak, and if you have a libertarian streak it’s hard not to look fondly on a candidate like Rand Paul.

Paul spent time in a Republican debate talking about the way black people are treated in our criminal justice system. Wow. That’s either principled or dumb. Sadly, one of those things doesn’t help if you’re running for president.

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Sigh.

In any event, back to the folks left standing.

A president’s ability to change the course of any government institution depends on two things. First, the president’s views about what should happen.

Second, and probably importantly, that president’s ability to manage the government. Dick Cheney did an excellent job of this, reaching down into the agencies in order to make sure the White House’s agenda was being implemented. Obama, not so much. (Does anyone really think the recent immigration raids on families subject to deportation orders is the change Obama encouraged us to believe in?)

There’s a lot of inertia in the government. An agency is like an ocean liner — turning its direction takes a lot of work. And a president has limited time and energy to impose his or her will on the government.

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Republicans

Donald Trump

It isn’t hard to imagine what the prosecution of white-collar crime would look like in a Trump administration. It’s hard to see The Donald taking on Wall Street; those guys are winners.

That said, Trump doesn’t seem to be a “sweat the small stuff” kind of guy. He’s the guy who said yes to “The Apprentice” after a one-hour meeting.

So, my bet would be Trump would intervene on big white-collar cases if they became newsworthy, or if they’re truly big, but otherwise would let career government folks do their thing. Maybe there’d be some reduction in staffing, but, overall, I just don’t see him caring enough to focus on it.

Ted Cruz

Cruz would primarily want to divert the Department of Justice to prosecuting death penalty cases — he seems to really like those. White-collar cases don’t seem to be a particular passion of his.

That said, Cruz doesn’t seem like he’s known for his managerial skill. Aside from taking some resources from fraud sections to fund the government’s efforts to kill people who kill people, I think Cruz would largely be business as usual for white-collar prosecutions.

Marco Rubio

Rubio I think is the Republican candidate most likely to change what’s happening in white-collar cases.

He’s spent a lot of time fundraising with wealthy folks who are likely to be interested in DOJ’s priorities here. As one insider described Rubio’s policy views, “The problem with the campaign-finance system is that it forces the candidates to spend too much time with rich people.”

Rubio also seems like enough of a competent manager that he’ll be able to work on the areas he cares about most. And if his donors are worried about going to the pokey, I’m thinking he’ll worry about them going there as well.

Rubio would have the will and the ability to temper white-collar prosecutions. If Rubio wins, and you’re a white-collar defense lawyer, either start studying ERISA or learn to do other kinds of criminal cases.

Democrats

Hillary Clinton

There would be pressure on Hillary Clinton to show that she’s tough on Wall Street, especially after the Sanders campaign pulls her to the left. The easiest cheapest way to implement faux reform is by increasing the visibility of aggressive prosecutions. Under Clinton, I think there would be pressure to have a few high-profile cases make news to show that her administration is tough on white-collar crime.

Beyond that, I don’t see her caring enough to get in the depths of DOJ and its broader white-collar enforcement, at least as opposed to other prosecutorial priorities. I take her as largely centrist, and most centrists — in my book — are pro-prosecution as a general matter until there’s a demonstration that things have gone off the rails.

I’d see her as just more of what Obama’s doing.

Bernie Sanders

Whoa Nelly! Do I really have to say any more?

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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