Gov't 'Regulation By Prosecution' Is Just Criminal Law On Steroids

IBD Editorials ^ | December 20, 2010 | JAMES R. COPELAND

[Kaslin]

As part of an insider-trading investigation, the FBI raided three prominent hedge fund offices in a multistate November sting operation.

Two of the funds whose offices were searched, Diamondback Capital Management and Level Global Investors, quickly sent investors letters assuring them that the funds themselves were not criminal targets.

As the funds' managers clearly realized, sophisticated investors know that criminal inquiries can exact untold damage on corporations, as customers become wary, employees look for new opportunities, credit dries up, and management is distracted from its core business.

An increasing percentage of American business managers are similarly distracted, since over the last 20 years, regulation by prosecution has emerged as a significant new form of government control over the marketplace. This practice threatens not only private-sector businesses but also individuals' rights and the rule of law.

In 1991, the U.S. Sentencing Commission issued guidelines that, in essence, gave corporations and other organizations "credit" for "cooperating" in criminal investigations. The next year, the government entered into its first "non-prosecution agreement" with Salomon Brothers, which paid a civil penalty to avoid criminal trial.

Modern-day regulation by prosecution dates to 1999, when attorney general Eric Holder — then a deputy attorney general in the Clinton Justice Department — issued a memorandum that formalized federal policy for determining whether a business has cooperated with a criminal investigation

[Jack Hammer]

Once upon a time, long, long ago, it was said that “the business of America is business.” Now it can only be said that “the business of America is hassling business.” The economic figures are accordingly predictable.

[wintertime]

Government lawyers have thus come to wield enormous power over business operations. Prosecutors have forced companies to reverse long-standing corporate policies, to sack management and directors, and to install prosecutor-appointed "business monitors" to oversee corporate activities.

Can you spell *F*A*S*C*I*S*M*?

(I'm going to bed. I can't read this stuff any more. (sigh!)