Ruth Bader Ginsburg—A Titanic Loss

The most significant legal news is, of course, the tragic death of Justice Ruth Bader Ginsburg yesterday. I hope to write something about her contributions to constitutional criminal procedure and white collar criminal law. These include writing last year’s decision in Timbs v. Indiana—confirming that the Eighth Amendment’s constraints on excessive fines apply to the states—and authoring the plurality opinion in 2015’s Yates v. United States—clarifying the scope of the Sarbanes–Oxley Act’s prohibition on destroying tangible objects to impede government investigations.

But others are conveying much more meaningfully than I could what a towering figure she was in American law and American history. She was one of a handful of American judges who would have been a historic figure even if she had never become a Justice. And, candidly, I’m too upset right now to really think through everything she meant, and everything that her loss could mean. I am wishing comfort to her family and everyone else who was close to her.

William Barr—An Utter Disgrace

Next, just as we need reassurance that the rule of law isn’t crumbling around us, we’re reminded that the leader of the Department of Justice is corrupt to the core. First he intervened in ordinary Department practices to help the President’s friends. Now he has tried to push career officials to prosecute the President’s critics—and protestors against systemic injustice—on dubious and obviously pretextual grounds. Worse, he’s undermined the idea of nonpartisan decisionmaking at DOJ, calling the concept one fit for a “preschool.” Nor are these the remarks the first in which Barr has showed off his authoritarian instincts and disdain for—and ignorance of—history

I’ve tried to confine my criticisms of high officials to focus on narrow issues, but this is too far. Bill Barr has joined A. Mitchell Palmer, Roger Taney, and John Mitchell as among the worst Attorneys General in American history. It’s a terrifying state for the Department of Justice. I can only guess as to how long that institution will take to recover.

Other News

  • Recent news out of the Sourthern District of New York will not help that recovery. There, DOJ misconduct plagued a prosecution for alleged violation of U.S. sanctions against Iran. The misconduct included belated disclosures of exculpatory evidence and improper practices during the investigation. Judge Nathan has directed that every prosecutor in the District’s U.S. Attorney’s Office read it by Monday. If I had my druthers, every DOJ prosecutor in the country would read it. Heaven knows that—under the Department’s current leadership—each could use a reminder of the ethical and constitutional restrictions on the prosecutorial role.
  • Next, in Seattle, an indictment against six individuals for allegedly bribing Amazon employees to secure a $100 million competitive advantage.
  • Finally, a prison sentence for a Springfield, Oregon woman convicted of health care fraud

What’s Next

I’m planning of series of white-collar-themed book reviews. First up will probably be Jeffrey Toobin’s recent book on the Mueller investigation and the impeachment. Spoiler alert: it’s good but not great. I’ll wait to post that until after I’ve read Mueller deputy Andrew Weissmann’s forthcoming book. They may benefit from a side-by-side comparison.

I’m also looking forward to Professor Jennifer Taub’s upcoming book on the cost of white collar crime. It too may benefit from a side-by-side review with 2017’s must-read The Chickenshit Club, by ProPublica’s Jesse Eisinger.

Last, I’d like to do a series of reviews of both classic and new movies that touch on white collar themes. Everything from The Insider to The Informant!.