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Book Review: Punishing The Powerful

The book is an indictment of what the US Justice Department has become. But it also offers a picturesque portrayal of the challenges of law enforcement that could be just about any department anywhere

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Great lawyering, to most people, is perhaps what they see in the movies  – for example, Tom Cruise’s character in  A Few Good Men; or read in Jeffrey Archer’s  books. Well, an average lawyer’s average day, on the other hand, is most likely to be spent praying for an adjournment, or worse, in some courts, including the Supreme Court of India, getting cut off by the judge before he has finished his first sentence, and his case dismissed.

No wonder then that there are very few accounts of the work-life of lawyers: accounts which explain what goes into the making of a winning case, and how the rate of success is not necessarily the yardstick for measuring capability of a lawyer or law enforcement. The Chickenshit Club by American journalist Jesse Eisinger goes some way in remedying that. Built around the key question of why the Justice Department in the US fails to prosecute executives of companies that are involved in malpractices, the book is an eminently readable abridged history of the law enforcement division of the US.

At times, reading like a courtroom drama, and at others, a pacy commentary on the best years of the department, the book takes its name from a disparaging term given by James Comey (in the news this year for being fired by President Trump from the post of FBI Director for not dropping the investigation into Trump’s alleged collusion with Russia) to describe some of his lawyers who never lost a case because they took up only the easiest and safest.

The book begins with the Justice Department’s investigation into the Enron scandal, where accounts were fudged, abetted by negligent auditors; leading to both Enron and the accounting firm Arthur Andersen being wound up. The Department was then vehemently criticised (perhaps unfairly, as the allegation that the indictment was the sole reason for Andersen being wound up was a myth) for putting Andersen’s over 85,000 employees worldwide out of jobs. In the aftermath, the Department stopped pursuing companies, and relaxed its pursuit of executives, and in the 2008 financial crisis, only one obscure banker was convicted in all. In a painful passage, a judge refuses to sign off on a settlement reached between the Securities regulator and Bank of America-Merrill Lynch for something as blatant as not disclosing that top Merrill Lynch executives were paid handsome bonuses just prior to BoA bailing out in a last ditch effort to keep it from bankruptcy because the regulator had settled for a paltry penalty, and without requiring the company to admit guilt; only to have his ruling overturned by the appellate court.

The book is an indictment of what the Justice Department has become.

But it also offers a picturesque portrayal of the challenges of law enforcement that could be just about any department anywhere. In its course, the book runs us through the difficulties of collecting incriminating evidence, the leadership tussles that dictate to a large extent the targets of prosecution, pressures faced by prosecutors from the industry, and not to mention, often naïve, press coverage. It is, in its essence, a tale of how a nation is unable to punish the powerful. “They still have impunity”. You could say that about any of the scandals doing the rounds back home.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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Magazine 6 January 2018 book review books

Abraham C Mathews

The author is an Advocate, practicing in Delhi, and a Chartered Accountant

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