Wednesday, October 4, 2017

Confidence in Government, Grand Juries, and the Equifax Executives

“’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.