Tag Archives: prosecutors

How Transparent Should Prosecutors Be About Investigations Into High-Level Corruption?

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Today’s post is going to be one of those ones where I raise a question that I’ve been puzzling over, without having much to offer in the way of good answers.

Here’s the question: How open and transparent with the public should the officials investigating serious allegations of high-level corruption be about the progress of their investigations?

To be sure, no competent investigator or prosecutor would or should be completely transparent, as doing so might well tip off the targets of the investigation to what the investigators know, their investigative and legal strategies, and so forth. But even with that constraint, there’s a fairly broad range of options. Investigators could be absolutely tight-lipped about everything. Or they could hold regular press conferences covering significant developments in the case (and perhaps even going further to comment on the larger issues that the investigation implicates). Or something in between.

I was prompted to think more about this question in part by an exchange I had with Jose Ugaz at last month’s Harvard conference on Populist Plutocrats. I was asking Mr. Ugaz about his experience serving as Peru’s Ad Hoc State Attorney investigating and prosecuting high-level corruption in the Fujimori regime, and in particular how he dealt with concerns that his investigation might be perceived as politicized. Those who are interested can watch the video of our exchange (which starts around 7:15:55), but the key part of Mr. Ugaz’s response (slightly edited for clarity) ran as follows: Continue reading →

Equitable Sharing, Not Deference: How US FCPA Enforcers Should Accommodate Foreign Interests

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Frederick Davis recently published two guest posts (see here and here) emphasizing some of the risks that arise when the US government pursues FCPA prosecutions against foreign corporations. He notes that European anticorruption administrators are regularly irritated by aggressive US action in this field and by the apparent discrepancy in the treatment of US and non-US corporations. He also notes that foreign corporations are reasonably worried about being charged twice for the same transgression: While European countries have addressed this concern through an international version of the double jeopardy bar (also known as ne bis in idem), that bar does not protect a corporation against a subsequent US prosecution. Moreover, as Mr. Davis notes, US enforcement agencies (as compared to their counterparts in Europe) have wider authority to charge, are more willing to assert power abroad, wield more procedural tools, and are less subject to judicial supervision in their charging and settlement decisions. To address these problems, Mr. Davis recommends, among other measures, that the US DOJ issue guidelines for when to defer to foreign judgments.

However, US deference to foreign judgments may not be the best solution. It could be true, as Mr. Davis worries, that US prosecutors are “becoming the ultimate arbiters” of foreign bribery cases (at least those involving multinational corporations). But if the US standard is indeed more stringent, then US hegemony could lead to more aggressive anticorruption prosecution across the board, a boon for anticorruption advocates. Since in certain situations competition among administrative and enforcement agencies can create a de facto “race to the top” in terms of standards, it might not be such a good idea for the US to adopt a more deferential posture toward foreign judgments in transnational bribery cases.

That’s not to ignore the significant problems that Mr. Davis describes. Given that the fines and other monetary penalties for corrupt business behavior can be enormous, US FCPA counterparts in other nations would be rightly dismayed if they lost out on the potential recoveries. If a Danish corporation listed on a US exchange bribes an official in Gambia, all three countries should be able to penalize the wrongdoers and share—though not necessarily equally—in the fines and other penalties recovered. If the penalties are appropriately distributed, we need not sacrifice the aggressive anticorruption regime of US hegemony. My response to Mr. Davis is that we need guidelines for distribution of recoveries, not necessarily guidelines for deferral to foreign judgments operating under differing, and less aggressive, standards.

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Guest Post: The US Needs To Show More Respect for Foreign Prosecutions

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GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

The principle that the state may not criminally prosecute the same defendant twice for the same conduct—known in most of the world as ne bis in idem (“not twice for the same thing”), and known in the United States as the prohibition on “double jeopardy”—is well-settled and uncontroversial, at least in Western democracies. Much more controversial is whether that principle protects a defendant prosecuted by one country from prosecution by a different country for the same (or closely related) conduct. This question is of particular importance in the context of transnational bribery, where the same conduct might violate the criminal laws of multiple governments. As I discussed in my last post, in Europe, a mix of domestic legislation, international treaties, and court decisions have established an international version of the ne bis in idem principle, providing companies with a reasonable assurance that if they are prosecuted in one European country, they are shielded from further prosecution in another. In contrast, in the United States the prohibition on double jeopardy has been consistently interpreted to prohibit only multiple prosecutions by the same sovereign. US laws thus offer no protection against re-prosecution in the United States after a prosecution abroad.

The power of US prosecutors to go after companies that have already been prosecuted in other countries is enhanced by other powers that European prosecutors can only dream about. As noted in an earlier post, a US prosecutor can pursue a corporation when anyone within that corporation can be shown to have committed a crime, giving the prosecutor considerable leverage. US prosecutors also have finely tuned procedural mechanisms, such as deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs), that are only tentatively being explored in other countries, such as the United Kingdom and France. The DOJ regularly asserts aggressive notions of its territorial powers, claiming, for example, that the use of dollars as the currency of an illegal transaction may subject the participants to US prosecution. US prosecutors have essentially unreviewable discretion their investigative decisions, because unlike many countries in Europe, criminal investigations (and, crucially, the decision to charge) are not supervised or reviewed by judges, as the DC Circuit has recently held.

Taken together, these circumstances risk causing two problems: Continue reading →

Another Essential Web Site for Anticorruption Professionals

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Last month I urged those whose investigate or prosecute corruption cases for a living to peruse and bookmark Guide to Combating Corruption & Fraud in Development Projects, an invaluable web page developed by the International Anticorruption Resource Center.  Today I recommend anticorruption professionals do the same for CAMPUS, an e-learning site developed by the Basel Institute’s International Centre for Asset Recovery.

CAMPUS currently contains four courses with more promised.  The four now available teach the user to: 1) use Excel to analyze financial records, 2) devise graphics to visualize cases and money flows, 3) show an individual is living beyond his or her means, and 4) analyze suspicious transaction reports.  Even those who are computer-challenged will find the courses easy to navigate. I have completed two and am working my way through the other two and have never had a better experience with an online course.  The substance of each is first-rate, and as with the Anticorruption Resource Center’s Guide, even veteran investigators and prosecutors will benefit from taking the courses.  Perhaps best of all, unlike many online courses computerization enhances rather than detracts from the learning experience. Take the course on using Excel to analyze financial records. Continue reading →

The Economist Gets It Badly Wrong on Anti-Bribery Law

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Last week, The Economist published an op-ed entitled “Daft on Graft,” which argued that the enforcement of transnational anti-bribery laws like the U.S. FCPA and U.K. Bribery Act is “becoming ridiculous,” with costs that are “spiraling beyond what is reasonable,” and that we are now witnessing “a descent into investigative madness.”

If I spent all my time responding to poorly-reasoned claptrap that looks like it was written either by a shill for business lobbyists or by someone who didn’t know much about the topic, I wouldn’t have time to do anything else. But when such claptrap appears in a widely-read, well-respected publication like The Economist, I can’t just let it pass. I know, I know—it may be unfair to beat up on a short op-ed, a format that doesn’t lend itself to in-depth analysis or nuance. But still, even by the standards of op-eds in popular periodicals, this is pretty bad. The diagnosis of the problem is shrill, one-sided, and hyperbolic, and the proposed reforms are either already in place, or misguided.

Maybe the best way to approach this is to consider each of the op-ed’s four proposed “reforms” to anti-bribery law enforcement one at a time: Continue reading →

Corruption and the Revolving Door: Recent Discussions and Further Reflections

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So-called “revolving doors” between government and the private sector raise the specter of potential corruption (if not in the strict legal sense, then in the broader sense), and some anticorruption advocates have called for much more aggressive restrictions on former government officials’ ability to work for the sectors they used to regulate. (See, for example, here, here, and here.) Though the concerns are legitimate, I argued in a post a little while back that the issue is much more complex: many of the concerns about the harms of the revolving door may be overblown, and revolving doors might in some cases have beneficial effects.

I thought I’d revisit the issue in light of two very interesting recent contributions on this topic: a blog post last week by Transparency International Programme Manager Dieter Zinnbauer on the pros and cons of the revolving door (along with a companion post on measurement issues), and an article by Wharton School Professor David Zaring. Mr. Zinnbauer concludes that the weight of the evidence suggests that the revolving door is indeed a serious problem, and that for the most part the costs outweigh the benefits; Professor Zaring reaches more or less the opposite conclusion.

Although I think the first half of Mr. Zinnbauer’s post is an excellent, succinct, evenhanded summary of the main issues, I respectfully disagree with the inferences that he draws from the existing evidence. That’s not to say that his conclusions are wrong, or that revolving doors are nothing to worry about. But when Mr. Zinnbauer says that “a much larger body of new evidence comes down quite distinctively on the negative impact of the revolving door,” I think he’s overstating his case. Here’s why: Continue reading →