Sunday's New York Times business section took an in-depth look at the case of Stefan Buck, a Swiss banker who in November was found not guilty by a New York jury in a criminal case related to tax avoidance by his U.S.-based clients. The Times reported: "The Justice Department had now lost the three cases it had tried against foreign bankers who helped Americans avoid taxes. Dozens more cases are pending."
You'd think that maybe having lost the first three cases, the government would consider dropping the "dozens more." The Times article is long and seems thorough, but it leaves mostly unexplored the question of whether there are any career consequences for prosecutors who bring and lose these cases, or who approve bringing them.
In December, in another federal case, a Brooklyn jury acquitted the former top soccer official of Peru, Manuel Burga.
There's a certain strain in Department of Justice culture that sees these outcomes as a badge of honor. The New Yorker recounts:
When James Comey took over as the U.S. Attorney for the Southern District of New York, in 2002, Eisinger tells us, he summoned his young prosecutors for a pep talk. For graduates of top law schools, a job as a federal prosecutor is a brass ring, and the Southern District of New York, which has jurisdiction over Wall Street, is the most selective office of them all. Addressing this ferociously competitive cohort, Comey asked, "Who here has never had an acquittal or a hung jury?" Several go-getters, proud of their unblemished records, raised their hands. But Comey, with his trademark altar-boy probity, had a surprise for them. "You are members of what we like to call the Chickenshit Club," he said....A perfect record of convictions and guilty pleas might signal simply that you're a crackerjack attorney. But, as Comey implied, it could also mean that you're taking only those cases you're sure you'll win—the lawyerly equivalent of enrolling in a gut class for the easy A.
In private-sector litigation, if you keep losing cases, eventually you run out of money. The Justice Department, however, can rely on $20 billion or $30 billion a year in pretty steady annual taxpayer funding. And if, in return for that funding, Congress or the White House dare make any suggestions about priorities or wise use of limited resources, the Comeys of the world get touchy about their "independence."