“’This really stinks—it really smells really bad,’” said Senator
Jon Tester of Montana to Richard Smith, the former chief executive officer of
the credit bureau Equifax during a Senate Banking Committee hearing on Tuesday.
But, he added, “’I guess smelling bad isn’t a crime.’” [1]
The olfactory reference was to Mr. Smith’s insistence that
three Equifax executives sold $2 million worth of stock in the company after “a
colossal data breach that compromised the data of more than 145 million people,”
[2]
but before the breach was disclosed to the public [3],
without knowledge of the breach. And Senator Tester is correct when he says
that something stinks. He is also right in pointing out that smelling bad isn’t
a crime. But that misses the point that crime is among the things that stink,
and that a stench of this kind ought to alert us to its presence.
Now far be it from your humble servant to state with
confidence that someone should be charged with a felony based on what he has
read in media reports. But we do have federal grand juries that are supposed to
make exactly such determinations, based on evidence presented before them.
Unfortunately, grand juries have become prosecutorial
creatures: usually indicting where the prosecutor desires it, and not doing so
when the prosecutor does not. But that is not how they are supposed to function.
Their purpose is actually to keep the charging of crimes from becoming too much
of an executive, governmental function. Citizens are called, temporarily, for
the purpose of making the determination of whether there is sufficient evidence
to charge in the cases brought before them, thereby removing the decision from
either vengeful or colluding executive officers.
Moreover, it prevents the charging function from becoming
hampered by the indolence generated by bureaucratic inertia. Insider trading
cases are uniquely difficult to prove, and this may give rise to an undue
prosecutorial reticence.
If the Equifax officers move on with their lives without any
review of their actions, we will be confronted with yet another cause for
popular despair over the effectiveness of government operations. It will be
assumed, perhaps rightly, that government in the United States is organized for
the benefit of plutocrats. On the other hand, it would be no answer to descend
into the mob justice that can so easily follow when a citizenry decides that
the justice system has become non-operative. A return to the grand jury as it
was intended to be, that operates under its own steam and initiative, is the
way that we already know to prevent such eventualities.
