The Justice Department’s Foreign Aggression
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Events in the Middle East and Ukraine demonstrate that the United States can't always be the world's policeman. But there is one arena where it is still the top cop on the block: corporate law enforcement.
The new Justice Department effort to bring criminal charges against miscreant banks has struck two targets, both of which happen to have headquarters overseas. Credit Suisse was charged in May with helping Americans dodge taxes. And the Feds are ready to get tough with BNP Paribas, France's largest bank, which is under investigation for doing business with blacklisted countries like Sudan.
Europeans say they see a pattern, particularly because the moves against Credit Suisse and BNP Paribas come as the Obama administration faces intense criticism for failing to pursue the American banks and bankers whose actions fueled the financial crisis. François Hollande, the French president, raised the issue in a recent meeting with President Obama.
At an anti-bribery conference held by the Organization for Economic Cooperation and Development in Rome last week, I asked Francois Badie, the chief of the Central Service for Corruption Prevention in France, about the BNP Paribas prosecution. He agreed that the perception is that the United States is pushing its own interests, warning that "the excessive use of power is the beginning of tyranny."
American credibility is at risk, he said. "The United States should not exaggerate, or it will be considered extortion by countries."
"Tyranny" might have been a bit of Gallic hyperbole. But he was absolutely spot on when he said that it appeared that the "administration, for internal political reasons, is trying to show it is tough."
The question of whether the Justice Department has two standards, one for companies with representatives in Congress and the other for those that do not, grows more acute if you look beyond the two bank cases. Take the Foreign Corrupt Practices Act, which makes corporate bribery of foreign officials illegal.
Only two of the 10 biggest F.C.P.A. fines have been levied against American companies. As you go down the list, only 10 of the top 25 are based in the United States. No need to be reminded that America is where most of the largest companies in the world reside. In antitrust and environmental dumping, there's a similar pattern. Foreign companies pay the biggest fines.
Indeed, fines on average are seven times larger for foreign companies than for domestic ones, according to a University of Virginia law professor, Brandon L. Garrett. He found that foreign companies were penalized $35 million on average, compared with an average of $4.7 million for American companies.
So are the French and the critics right?
Partially. There's a game going on, which the foreigners haven't played as well, at least until recently. Corporations are supposed to conduct internal inquiries (stimulus for the white-collar legal industry) and then self-report with the proper amount of contrition to the authorities. Until recently, overseas-based companies haven't grasped the steps in this crucial dance, say defense lawyers, academics and former prosecutors.
Then again, the transgressions by overseas companies that prosecutors examine are often significant, involving high-level executives or board members. They seem to pass on lesser allegations that might merit attention if the company involved were American.
There is, however, less here than meets the eye. The reason is simple: The Justice Department's actions against giant foreign corporations simply aren't that tough either.
Take the F.C.P.A. violations. In only three of the top 10 cases were executives charged, according to Mike Koehler, a law professor at Southern Illinois University School of Law who runs the FCPA Professor blog. When the Justice Department uses a non-prosecution or deferred-prosecution agreement to resolve a foreign bribery case, a person is charged only 8 percent of the time, he says. Mainly, what the department does is reach settlements without having to prove anything in court, the path of least resistance for prosecutor and corporation alike.
"The D.O.J. likes to talk about its successes as if somehow leveraging criminal action against risk-averse corporations is an indication of success," Professor Koehler said.
In the Credit Suisse case, the criminal charge, which was celebrated by the Justice Department as a sign of its fortitude, was actually just another settlement that failed to impose truly serious consequences. Prosecutors were deeply worried about harming the bank or the financial markets. In the end, the criminal charge was essentially semantic because regulators made sure not to revoke the bank's charter or otherwise curtail its future business. There was little substantive difference between it and a deferred-prosecution agreement.
The real problem is not that the Justice Department singles out foreign companies; it's that the way it metes out corporate justice is so toothless, arbitrary and opaque.
There is little method to what companies get charged and which get to score deferred-prosecution agreements. There are few reasons a fine is X rather than Y. When a corporation gets charged or reaches a deferred-prosecution agreement, it isn't clear when or whether an individual will also get charged. The randomness and lack of transparency isn't just. It opens the Justice Department up to legitimate criticism as well as conspiracy theories.
Justice shouldn't be a matter of finding the best-connected law firm to defend you. It shouldn't be about where your headquarters are. It should not be about your place in line, a case of bad luck. BNP Paribas was next just when the authorities finally appear to have decided they needed to actually be tough, rather than pantomiming it. That's unfair.
Of course, not every case can be resolved in exactly the same fashion. They all have specific circumstances. Guidelines shouldn't be handcuffs. The solution is to move away from settlements and toward trials and convictions, especially of individuals. There is the possibility of abuse and arbitrariness in such prosecutions as well. But they would be more public and prosecutors would be called on to prove their case. Then we'd find out whether the French do actually deserve it more.
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