Federal prosecutors have suffered a string of high-profile losses that point to long-term institutional problems. Ankush Khardori writes on the Justice Department's recent setbacks
Photo-Illustration: Intelligencer; Photo: Win McNamee/Getty Images “I’m here to declare that we are not part of the chickenshit club.”
Early this year, an appeals court reversed the convictions of two former Deutsche Bank employees who had allegedly manipulated a financial benchmark rate known as LIBOR. In March, a jury in Texas acquitted the one and only person charged in connection with the department’s investigation of Boeing following two crashes of its 737 Max jets after deliberating for just 90 minutes. A jury in Washington, D.C., acquitted two defendants who had been charged in a campaign straw-donor scheme.
The department’s missteps have already prompted criticism and concern among some observers and former prosecutors. Perhaps the most surprising thing about some of the more sharply critical comments of recent weeks is that they are being made publicly at all — a reflection of how difficult it can be in the ordinary course to have a real discussion among informed observers about the department’s frequent shortcomings.
Eisinger is more attuned to the real-world problems associated with the appearance of a losing streak, particularly in the antitrust arena. “Ideally, they’re gonna win something,” he says. “Eventually, you have to win. It’s unpleasant to lose, and it opens you up to all sorts of very predictable criticism. Of course, the defense bar is going to jump on your losses and throw everything at you,” he added.
The recent run of losses at the Justice Department mostly appears to reflect a variety of distinct causes and, perhaps, different forms of suboptimal professional judgment about the strength of the government’s evidence. The reversal of the convictions in the Deutsche Bank LIBOR prosecution seems to reflect a persistent and palpable discomfort among some judges with what they regard as overly aggressive theories of criminal-fraud liability.
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