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The Public Prosecutor and Deliberated Decisions

Per the Executive Summary of theĀ U,S, House of Representatives on July 11, 2016:

“Approximately three years after its initial inquiries, the Committee finally obtained copies of internal Treasury records showing that DOJ has not been forthright with Congress or the American people concerning its decision to decline to prosecute HSBC.” See p. 1.

Where the public prosecutor is confronted with private sector business plans and decisions (cf. split-second decisions of LEOs in my earlier post of today), its calculus of second-guessing becomes different, though politics and social concerns remain. How could a supervised individual within a supervised entity within a supervised enterprise within a supervised set of industries err criminally in the conceivably simple and long-practiced exercise of accepting deposits and making transfers of funds, especially with the elaborate and overlapping networks of reviews and approvals internally and inspection and oversight externally (e.g., public auditors, regulators)?

Reminds me of my days as a financial investigator in the private sector: Generally, the idea that someone could be cheating (aka committing fraud or perpetrating irregularities) in a big way was inconceivable to many in senior management (often, framed with the language ‘can’t happen here!’) This illustrates in part why the most irreplaceable attribute of a fact-finder in the context of fraud examination and financial forensics is neither independence nor impartiality – it is imagination. Without unbridled and informed imagination, completing checklists and even asserting that ‘one has engaged in the due care of brainstorming and higher order thinking’ is more routine than revelation – a sort of internalized and socially acceptable recklessness. However, vigorous imagination may upset the high levels of discipline, cooperation, and obedience expected under many bureaucracies. Imagination may be messy and uneconomical; comparatively, ‘yes’ men and women are tidy and efficient.

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