This morning “friend of the blog” Jack Roberts has an op-ed in the Oregonian questioning Attorney General Kroger’s use of hardball prosecutorial tactics. While the first of Jack’s examples have been widely condemned, I found his last one a bit jarring: Kroger’s prosecution of Lea Fastow in working to convict her husband Andy Fastow, the mastermind of ENRON’s criminal enterprise.
Interrogating 9-year olds and threatening Energy Department staffers in the manner Jack describes is indeed disturbing. I’m not sure, though, that I share a similar sense of outrage at the strategy of the Fastow prosecutions and what they represent. Jack cites a quote (from Kroger’s book) where a colleague says, “Let's see how Fastow feels about going to trial when his children are in ... foster care," a gloating that leaves even Kroger feeling squeamish. But in the general scheme of things it’s hard to imagine a class of criminals whose prosecution and punishment over the last decade have been as lax as the super-wealthy financial crooks of whom Fastow is a very rare exception; while he went to jail, most haven’t even faced charges, despite the almost unimaginable scale of loss and devastation they’ve left in their wake.
You want suffering kids? Try watching Sunday’s 60 Minutes episode on the burgeoning ranks of children left homeless thanks to the wave of foreclosures that are the direct consequence of Wall Street’s reign of plunder. While the leading perpetrators continue to collect multi-million dollar bonuses, their financial fraud schemes have resulted in millions of families losing jobs, homes, life savings, etc. Don’t their kids count?
In respect to financial crimes state prosecutors have had to stand in for no-show Federal prosecutors and regulators – and if anything they’ve been too lenient. While AGs like Kroger took the lead in investigating the foreclosure fraud scandal, for example, recent release of draft settlement documents seems to indicate that the perpetrators may escape criminal prosecution entirely, and be forced to pay only minimal financial penalties.
Bottom line: Uphold strong ethical standards in prosecutorial behavior? Most definitely. But don’t for a second back away from aggressive prosecution of white-collar crime -- and that’s a game of hardball, not softball, that should be completely in line with Oregon values.
Update: The Oregonian has published this response to Roberts' op-ed from AG Kroger online.