March 11, 2019
Overzealous Prosecution May Not Make News… But It’s Still News
The talk of the town this week is the remarkably light sentence that Paul Manafort received. Yet for us, the topic that most inspired emails and phone calls was exactly the opposite â€“ overzealous prosecution in the business community (at least for those who are not politically connected).
The response to our three-part Forbes series on the perils of criminalizing the American corporate boardroom was striking. I received emails and even phone calls from lawyers and business executives, some from whom Iâ€™ve never met. They all had one thing in common: they were writing or calling to share their profound concerns about overzealous prosecution and its effect on U.S. competitiveness. And almost all shared horror stories of colleagues and clients who were unfairly hounded by prosecutors.
As a young professional, the feeling was, if someone was being prosecuted for a white-collar crime, they most surely must have had the intent. It may not always have been true, but it sure seemed that way.
Today, Mens Rea seems to be noticeably absent from far too many prosecutions. It was fascinating to speak with an alumnus from a fine federal institution on one of the highest profile prosecutions of the last decade, who said, ‘Every step of the way, I received advice and counsel from the best law and accounting firms; we were fully transparent and deliberate.’ Yet serve considerable time he did, not because he intended to defraud, illicitly profit, or break the law, but because he was diligently trying to abide in its labyrinth. This has become such an issue, and in fact, an apparent requirement for prosecutorial promotion â€“ like a beat officer with ticket quotas â€“ that we now wonder if the rule of law is not just being subverted by those who would seek to avoid its clenches but also those sworn to uphold it.
Clearly, we struck a chord. Which is why we decided to write a fourth column on this topic and wrap it into our second e-book that will be done in conjunction with our friends at Akerman. We will also produce it on one of our new podcast shows soon. The over-criminalization of Corporate America will be a theme that weâ€™ll continue to address in the coming months and years. Thanks for tuning in.