Alleged Malefactors

Jury Out on President’s New Federal Financial Crimes Unit; Will Fed Prosecutors Find Enough Judges to Hear Cases?

January 31, 2012   ·   0 Comments

The Empty Chair of Justice

By Jeffrey R. McCord of The Investor Advocate
January 30, 2012

“Justice delayed is justice denied,” the old maxim attributed to William Penn, has new relevance today as federal court dockets grow longer, vacant judicial seats remain unfilled, and more aging jurists seek the semi-retirement of senior status, thereby creating still more vacant seats.

The result? Federal civil and criminal cases take longer to be heard and tried.  In the civil realm where consumers and investors seek damages for fraud and other wrongdoing, a delay of years often makes their cases moot.  Plaintiffs age and pass away before their cases are heard.  Homes, businesses and other assets are lost while just claims languish.  And, in both criminal and civil cases, the trail of malefactors grows cold as witnesses die, evidence disappears, and original prosecutors and attorneys are reassigned to new cases or otherwise move on.

Obama Lags Bush in Judicial Appointments

Two recent developments have brought this into the limelight.  President Obama is forming a new Financial Crimes Unit. And, virtually simultaneously, it was reported that in the first three years of his presidency, President Obama is well behind President George W. Bush in filling empty judicial chairs.

First, the widely reported Brookings Institution study released in January found that President Barack Obama has failed to make as many appointments to the federal bench as President George W. Bush did at the three-year mark of his administration.  Obama has nominated 133 individuals for district court judgeships and 37 for appellate seats. During the same period of his Presidency, Bush nominated 165 individuals for district seats and 49 for circuit seats. For more, see Legal Times.

Will Proposed Fin Crimes Unit “Speed” Accountability and Assistance?

And, at the same time, in his State of the Union address, President Obama said:

“I will not go back to the days when Wall Street was allowed to play by its own set of rules . . . [We will] establish a Financial Crimes Unit of highly trained investigators to crack down on large-scale fraud and protect people’s investments. Some financial firms violate major anti-fraud laws because there’s no real penalty for being a repeat offender. That’s bad for consumers, and it’s bad for the vast majority of bankers and financial service professionals who do the right thing.

 “And tonight, I am asking my Attorney General to create a special unit of federal prosecutors and leading state attorneys general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.” 

Sounds great.  But, the financial crime investigators and prosecutors — presumably to be  refocused from immigration and post-9/11 chores — will still need to present and prove their cases in federal courts before overburdened federal judges where “assistance to homeowners” and accountability of financial wrongdoers to victims and financial regulators is anything but “speedy.”

Majority of Co-Chairs of Fin Crimes Unit are “Foot Draggers,”  HuffPo Says

Moreover, as reported by HUFFINGTON POST, the majority — three of five — co-chairmen of the President’s new Financial Crimes Unit already have a history of “dragging their feet” on enforcement actions against banks and other financial institutions.  These co-chairmen of interest are Tony West, assistant attorney general for the civil division of the U.S. Department of Justice (DOJ), Robert Khuzami, director of enforcement for the Securities and Exchange Commission (SEC), and Lanny Breuer, assistant attorney general for DOJ’s criminal division.  For more, see HuffPo.

If the SEC, DOJ and other federal financial regulators been more aggressive these past three years, the formation of a new fin crime unit at the 11th hour of President Obama’s first term would likely have been unnecessary.

Similarly, had the President been more aggressive in filling empty judicial seats, consumer and investor victims of financial crime and wrongdoing might already have received “speedy assistance” in the form of damages won in meritorious civil cases adjudicated in federal courts.

While the Congressional circuses that often delay judicial appointments cannot be blamed on President Obama, it is clear that he is well-behind his predecessor in nominating judges.  And, several law enforcement and regulatory agencies in his Executive Branch have been less than speedy or zealous in bringing financial offenders to justice.

“Exploited People Come to Believe Courts Cannot Vindicate their Legal Rights”

Meanwhile, erosion of the legal rights of redress of consumers, investors and the American people as a whole to challenge corporate wrongdoing continues to fuel public frustration and cynicism.  Restoring lost rights of redress to individual citizens and fully staffing the federal judiciary would do far more to fight and discourage financial crime and restore public trust than creation of yet another new task force.

The President and Congressional leadership would do well to reread a seminal article published in 1970 by US NEWS & WORLD REPORT authored by then Chief Justice Warren E. Burger.  Although often quoted in legal discourse, these words are not being acted upon today by any of the three branches of government:

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.”

 (See Burger: “What’s Wrong With the Courts: The Chief Justice Speaks Out”, U.S. News & World Report (vol. 69, No. 8, Aug. 24, 1970) 68, 71, based on the Chief Justice’s address to an American Bar Association meeting Aug. 10, 1970).

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