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What I would do with the Department of Justice

Oblique torment is a lost art.

There's a story from the biography of former President LBJ about his first run for, I think, the state senate in Texas (doesn't really matter).

In it, it looks like the person who will win the race is the widow of the guy who held the seat before. She looked to be pretty unbeatable. He didn't know what to do.

His father, also a politician but one who only ever rose so far, told him this was no problem at all. Declaring against her would look very bad, so all he needed to do was declare before she did. His father said something to the effect of: She's an old woman. The last thing she wants is a real campaign. If you declare, she won't.

Dad was right. She didn't declare.

If he hadn't declared, she would have walked into the seat because no one else would have either. Because he did, several others did as well. But they were beatable. She was not.

He beat his one real opponent obliquely. He also won the main race (if I recall correctly).

The indirect fight can be the right one, especially for those on the side of justice.

I read the book The Chickenshit Club by Jesse Eisinger in 2017. It's main message stuck with me: that over the last several U.S. Presidencies, the Depart of Justice has become loathe to actually bring cases against corporations. It doesn't bring cases it doesn't feel that it can win. They've become chickenshits.

Here's a nice chart.

(There's a less charitable interpretation one can make here, that they don't bring cases because they want to work for industry later and somehow word gets around that it's better not to fight)

I think this analysis is largely if not entirely right. I'm not really sure how to put this other than to say that people's minds have become more and more binary. Outcomes are either SUCCESS or FAILURE. A loss is a HUMILIATION.

This seems misguided to me.

Now I'm not an attorney and I'm sure there's a lot of variables here that I don't really understand, but here's my take from the outside looking in:

If I were President, I would seek an Attorney General who would be quite aggressive on corporate America. We would run a campaign of strong cases, but not air tight ones. When we believed a company had done wrong, we would bring a case. The point would be to try corporate America as much in the court of public opinion as we did in the court of law.

We would aim to run down stock prices, scare leadership, cause scandals and upset boards of directors. Would they have more lawyers than us? Sure, but we'd make them pay out the nose for those lawyers. Enough that it cuts into margins. That the companies suffer and others are made wary.

And no fucking settlements.

We'd push Congress to fund the courts better so they could add judges to handle the loads and staff to help move the paperwork along. We'd also get some smart lawyers together to have a look at the laws themselves and see if we can't make it a bit easier (while still ethical) to put corporate executives in the slammer.

And we'd lose cases. We'd lose a lot of cases. We would embrace losing.

And then after the case was lost, provided it wasn't a complete shellacking, provided we didn't feel we had really screwed up, the losing attorney would not be sent back to the office to start working on the next case right away. No, no.

The losing attorney would go on tour.

The comms team at Justice would have a tour of law schools, high schools and civic groups all planned out. Maybe one would even do a TED talk one day on how great it is to lose?

"Losing is fun!"

The point of these talks would be to put the facts of the case before the public, whatever the courts said, to build political will for better laws, for boycotts, for social opprobrium. Whatever makes sense.

The point would be not to fear losing, but to use the power of a prosecutor to uncover facts that journalists cannot. Expose those corporate malfeasance to sunlight and let the world do with those facts what they will.

That way, sometimes, the state would lose cases but still — sometimes — win in the end.

—Brady Dale
December 25, 2020

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