December 21, 2009
The SEC's Brief Filed Before Judge Lifland In Madoff.
To begin my career after graduating from law school in 1963, I joined the Honors Program of the Department of Justice in Washington. In those days, when Kennedy was still President, we pretty much thought that the Department did high level work, and it was also thought that the SEC was a premier, a very high quality, government agency.
Early-on, we new DOJ lawyers were taken around by some DOJ mucky muck who explained notable features of the DOJ building to us. At one place he stopped and pointed to an engraving on a wall which said "The Government wins when justice is done." That meant the Government was a winner, even if it lost a case, if justice was the result of the decision. It did not take long, however, to begin to understand that the engraving had the Government's view exactly backwards. It should have read, "When justice is done, the Government wins," meaning that if the government does not win a case, justice has not been done. I have now seen the latter philosophy in operation for 46 years, in numerous fields of law, most publicly including all aspects of supposed national security law from illegal wars to illegal wire tapping to illegal torture to illegal whatever-you-want-to-talk-about, and now that philosophy has pervaded the Madoff case too.
Just as the statement of philosophy engraved on the wall had the government's view exactly backwards, so too has competence taken a long, long holiday. I need not mention what happened in the DOJ's Office of Legal Counsel starting in the Fall of 2001, need I? Nor, I presume, need I mention the fantastic, utterly unbelievable, long running incompetence and negligence of the SEC in Madoff and other fraud matters. What I will mention, though, is a tiny matter -- a matter so small as to be of absolutely no consequence, yet one which is symptomatic because sometimes it is the smallest matter which can reveal intellectual incompetence, mental sloth, lack of knowledge, lack of concern for accuracy.
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