The Mueller investigation is showing how badly we’ve failed to prosecute white-collar crime

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Michael Cohen on July 27, 2018, in New York City.

It shouldn’t take a special counsel to catch these guys.

The thought that must keep Michael Cohen up at night as he contemplates the possibility of facing federal charges for $20 million in bank fraud is the knowledge that it’s almost inconceivable he would be facing prosecution if not for the fact that his former boss got himself elected president of the United States.

The same is true, of course, of Paul Manafort, another former employee of Trump’s. Indeed, Manafort’s attorneys made the argument in court — and the judge seemed somewhat sympathetic — that in effect, the whole prosecution was illegitimate because everyone knew special counsel Robert Mueller was only bringing the case because he was hoping to turn Manafort into a cooperating witness.

Perhaps for that reason, Mueller’s team has had nothing to do with the Cohen prosecution, simply turning over evidence it uncovered to the US attorney’s office in New York and letting them handle it. Still, the fact remains that the initial inquiry only came to light because of Cohen’s association with Trump.

All of which is to say that while the first-order political upshot of the Cohen and Manafort cases is that Trump seems to associate with an awful lot of criminals, the more disturbing implication is that there are a lot of white-collar criminals out there who aren’t being prosecuted because their lives don’t happen to intersect with a special counsel investigation.

Indeed, Trump himself in his pre-political life seems to have repeatedly benefited from a broad disinclination on the part of the federal government to devote serious efforts to cracking down on white-collar crime. And while a certain laxness about the crimes of the rich has long been a characteristic of the American criminal justice system, it’s gotten substantially worse in recent decades, as misguided Supreme Court decisions have made prosecutions harder even as law enforcement resources have been diverted by terrorism and anti-immigrant hysteria and political will to challenge plutocracy has waned.

Ten years ago, it seemed remarkable that America had gotten so soft on corporate crime that nobody was prosecuted for the banking malfeasance that crashed the world economy in 2008. Today we have a White House awash in scandal and criminal associations. We can only hope that if Trump’s rule comes to an end, we won’t get complacent about the dirt that Mueller has only begun to scratch.

Donald Trump, career criminal

Trump himself got his start as a junior partner in his father’s real estate business, operating in the outer boroughs of New York City.

And he got his start as a celebrity with a New York Times article detailing federal housing discrimination charges brought against him and his father. The charges were, ultimately, settled without admission of fault — something that would be a pattern for Trump over the years.

That his first foray into the real estate business involved criminal acts didn’t stop him from continuing in that business. When he later branched out into casinos, he got caught accepting an illegal loan from his father to stay afloat and got off with a slap on the wrist and was allowed to continue in that business as well.

From his empty-box tax scam to money laundering at his casinos to racial discrimination in his apartments to Federal Trade Commission violations for his stock purchases to Securities and Exchange Commission violations for his financial reporting, Trump has spent his entire career breaking various laws, getting caught, and then essentially plowing ahead unharmed. When he was caught engaging in illegal racial discrimination to please a mob boss, he paid a fine. There was no sense that this was a repeated pattern of violating racial discrimination law, and certainly no desire to take a closer look at his various personal and professional connections to the Mafia.

Even as late as the post-election transition period, Trump was allowed to settle a lawsuit about defrauding customers of his fake university (interestingly, the fact that the university was fake was not, itself, actionable fraud at all) rather than truly face the music.

One of Trump’s real insights in life was to see this bug in the system. When it comes to these kinds of crimes, it’s typically in government officials’ interest to agree to a settlement that gives them positive headlines and raises some cash while letting them move on to the next investigation. But while these decisions can make sense individually, they let serial offenders repeat their crimes over and over again. Meanwhile, throughout the decades of Trump’s rise, the legal climate has only gotten more permissive.

White-collar crime in the 21st century

The 21st century actually opened on what appeared to be a trajectory of getting more zealous about white-collar crime, as even the business-friendly administration of George W. Bush outlined an aggressive enforcement agenda in the wake of accounting scandals at Enron and Worldcom. The final result, however, was essentially the opposite of that.

One big factor was 9/11, which wound up injecting a new sense of urgency and — crucially — prestige to the FBI’s counterterrorism mission. Complicated white-collar cases are hard to make, and those who try to make them may end up making powerful enemies along the way. Counterbalancing that could be the prestige and public acclaim that come with making a major case. But terrorism ended up soaking up both concrete resources and prestige away from other missions that the FBI and federal prosecutors could pursue.

Then the Enron prosecutions themselves soured, as the Supreme Court overturned some charges against Jeffrey Skilling (in what became the launch past for a whole line of questionable jurisprudence that’s ended up de facto legalizing bribery) and threw out the case against the accounting firm Arthur Andersen. The Andersen case was doubly sour since the criminal prosecution wound up in effect destroying the firm, even though the government lost the case in the end.

The upshot, as Jesse Eisinger details in his excellent recent book The Chickenshit Club, is that by the time Barack Obama took office in the wake of the financial crisis, the Justice Department had no real stomach for taking on these cases. Meanwhile, the White House and Obama economic teams had no particular desire for them to develop one since their strategy was to patch up the banking system as quickly as possible rather than seek what former Treasury Secretary Tim Geithner dismissed as “Old Testament justice.”

Obama administration officials dislike the implication that they were soft on corporate crime and mount various arguments in their own defense. But one thing is incontrovertible: Unlike the Bush administration and the accounting scandals, the Obama-era Justice Department didn’t have any high-profile losses where they brought bank executives to court and were brushed back by business-friendly judges. It simply wasn’t an area in which they were interested in pushing the envelope. But the deeper story of Cohen and Manafort is the extent to which, away from hot-button political topics, the resources are simply not available to rigorously investigate all the white-collar crime that’s out there.

White-collar cases are hard, and we’re barely trying

Successfully prosecuting complicated white-collar cases is difficult, both because the cases themselves can get rather involved and because the defendants tend to have considerably more resources to devote to their own legal team than is the case with violent crimes. Meanwhile, you often don’t have the equivalent of the dead body that launches a homicide investigation — incontrovertible proof that someone committed a crime and now you need to find out who it was.

The Cohen case, for example, seems to be coming together fairly quickly now that it’s underway. But for it to get underway, someone had to decide to take a good hard look at it, which ordinarily wouldn’t happen.

Congress, meanwhile, in its wisdom has elected to spend more than twice as much money on the two federal law enforcement agencies charged with stopping illegal immigrants, Immigration and Customs Enforcement and Customs and Border Protection, as they spend on the FBI. But the FBI’s mission includes counterterrorism and counterintelligence, organized crime, and a range of other responsibilities.

Obviously it is well understood that despite their fairly lavish budgets, ICE and CBP have not, in practice, succeeded in creating a situation where all unauthorized immigrants are caught, detained, and removed. That state of affairs is frequently portrayed as a kind of urgent national crisis requiring even harsher crackdowns, even more money, and all the rest.

Under the circumstances, it’s naturally the case that given the drastically smaller pool of resources dedicated to white-collar crime — especially in light of the greater complexity of the cases — a lot of crooks end up slipping through the cracks. Elevated interest in the criminality of Trump and his inner circle is, to an extent, changing that. But if the Trump era ever comes to an end, America should consider taking a hard look at a more systemic change. After all, the very fact that we’ve found ourselves in this situation is a reminder that the Trump crew is but one symptom of a much larger illness.