The Shameful Legacy Of Prosecutorial Timidity Has Corrupted Our Country

Besides Mike Pompeo’s extreme views on spying on Americans, Iran, and North Korea, one of the most disturbing elements of Rex Tillerson’s firing is the nomination of Gina Haspel to succeed Pompeo as head of the CIA. Haspel’s ascendancy is the legacy of our country’s inability and unwillingness to prosecute rich and/or powerful people.

Gina Haspel is a career civil servant and, as such, she ran one of the CIA’s first black site torture facilities based in Thailand. There she oversaw the brutal torture of Abu Zubaida and Abd al-Rahim al-Nashiri in 2002. Zubaida was originally thought to be a top al-Qaeda leader but in fact he turned out to not even be a member of that terrorist organization at all but rather a go-between and organizer for other radical fundamentalist groups. Zubaida was waterboarded 83 times including one session where became “completely unresponsive, with bubbles rising through his open, full mouth”.

Now some might say that the decision to illegally torture detainees was made at the top of the Bush administration and that Haspel was simply following orders. But following knowingly illegal orders is still a crime. However, Haspel compounded her actions later when she was the chief of staff at the CIA’s Counterterrorism Center where she participated in the decision to illegally destroy videotapes of the illegal torture in Thailand in direct contradiction of a judicial order. As the head of the Center noted in his memoirs, Haspel drafted the order of the tapes destruction and “took a deep breath of weary satisfaction and hit Send”. As a former director of the ACLU wrote,  Haspel is “quite literally a war criminal.”

Of course, the reason Haspel has continued to ascend within the CIA despite this history is precisely because the senior members of the Bush administration who authorized the black sites and torture in violation of our Constitution and of multiple international agreements have never even been threatened with being called to justice for their actions.

Haspel is just one beneficiary of the legacy of failure to prosecute criminality. Gary Cohn is the former COO of Goldman Sachs and was ostensibly the hands-on, detail-oriented head of the firm during the financial crisis. During that time, Goldman has admitted that it defrauded investors in the mortgage-backed securities it underwrote. There is very little doubt that Cohn was unaware of the fraud being committed under his leadership, fraud for which the company has paid nearly $9 billion in fines and restitution. Goldman itself was saved from bankruptcy by its conversion to a bank in order to receive TARP money and the political decision to keep AIG from going under and bringing Goldman down with it. Before he resigned over the tariff issue, Cohn led the passage of an enormous unfunded tax cut at the tail end of a long period of recovery as well as the drive to roll back portions of the Dodd-Frank regulations, part of which will once again allow banks to redline poor communities.

Steve Mnuchin is another beneficiary of prosecutorial timidity. Mnuchin ran OneWest bank that was found to have engaged in widespread fraud and abuse of the foreclosure process under his leadership. OneWest robosigned thousands of foreclosure notices, back-dated thousands more, added additional principal on borrowers’ outstanding debt for no valid reason (other than profits for OneWest), and actually illegally sold foreclosed properties that did not belong to the bank.

And let’s not let the just-fired Rex Tillerson off the hook either. Last year, Exxon paid $2 million dollars for violating US sanctions on Russia while under Tillerson’s leadership, with the Treasury Department declaring “Exxon Mobil demonstrated reckless disregard for U.S. sanctions requirements”. In 2013, against the wishes of President Obama, the State Department, and the Iraqi government, Exxon, under Tillerson, negotiated an oil drilling deal with the Kurds that emboldened Kurdish independence at the expense of Iraqi unity. In addition, it appears that Exxon has been fraudulently calculating the “proxy cost” of climate change and the anticipated future regulatory cost associated with it.

Sadly, it is the Obama administration that is largely responsible for not pursuing the criminals in the Bush administration who sanctioned and engaged in torture as well as illegally destroyed evidence. The Obama administration is also responsible for not pursuing any Wall Street executives for the massive fraud associated with the financial crisis.

James Comey once described this prosecutorial timidity as the chickenshit club, where prosecutors refuse to take on a case they might lose. But it goes beyond that and points to the failure to treat white collar crime as a truly serious issue. So many of the issues we confront today, from the opioid crisis to the prevalence of sexual assault and harassment in the workspace to rampant police corruption and abuse to the now virtually legalized bribing of public officials to the Trump presidency itself, are a result of the inability of this country to provide accountability for the criminal behavior of the rich and powerful. Without that accountability, our government and our republic have become deeply corrupted.