In an ideal world, the criminal justice system should be immune from politics.  That is wishful but unrealistic thinking. 

 Unfortunately, our criminal justice system has always been stretched at times to further one political agenda over another.  That is not meant to condemn the entire judicial system, just what I would call the excesses – those prosecutions which are politically motivated and which can be a tool used by those in power to further their own agenda. 

Some Administrations have been worse than others.  This may sound cynical but history supports my argument. Of course, there have been important historial events where the cirminal justice system was important to preserving the rule of law – e.g. Watergate and the Iran-Contra prosecutions.  But there have been examples of just the opposite – political use of the criminal justice system.

Even a quick look at US history supports my point – from the Alien and Sedition Act prosecutions in early US history to the more recent Independent or Special Counsel investigations, the criminal justice system has been – and will continue to be – used by those in control.  Our history is replete with “political” prosecutions.  Federal judges sometimes can push back on these efforts, but sometimes they can even further the agenda in their own rulings.  If anyone thinks that politics does not enter into our criminal justice system, or that judges are somehow immune from politics, then I submit they are being naive.

For the business community, political trends in criminal justice are an important factor to weigh in assessing the competitive marketplace.  There is no question that Americans are upset about the financial meltdown in 2008 and 2009, and the absence of criminal prosecutions in the financial sector.  This raises the risks for companies in the financial sector.  The Justice Department has responded to this political wind in a very serious way – the Justice Department is aggressively prosecuting corporate fraud and allocating substantial resources to white collar enforcement.  They have broken down the barriers between tactics usually reserved for organized crime and drug trafficking organizations and now employ these same aggressive strategies against white collar criminals.  It is not unusual for federal investigators to record conversations with industry participants, to introduce undercover officers, to execute search warrants, to conduct ambush interviews on the street,  and to use wiretaps to gather evidence. 

This same aggressive attitude spills into other areas, including FCPA enforcement, as well.  The Justice Department (and the public) do not care if large financial institutions, private equity or hedge funds from Wall Street pay large fines  for fraud or foreign bribery.  The Justice Department wants headlines, they want executives to be punished, and they want to be seen as tough enforcers of the law, all designed to further its own political agenda of responding to the public’s anger.  Whether they will be “successful” or not, remains to be seen.

Our criminal justice system has been tested throughout our history.  Stay tuned and watch carefully.