Don’t expect Panama Papers prosecutions any time soon
An unnamed senior federal law enforcement official told NBC News Sunday that prosecutors and agents are “champing at the bit” to go after criminals by using the leaked Panama Papers that reveal tax evasion and money-laundering by highly prominent people in several nations.
But it won’t be easy. There are legal barriers to simply sifting through those 11.5 million documents—few of which have been publicly released so far—looking for scofflaws and outlaws. Care must be taken in how the documents are used to keep from tainting the cases prosecutors would want to make in court.
Josh Meyer reports:
“It is a bonanza,” the official said in reference to the cache of 11 million financial documents about shell companies that a Panamanian law firm set up for some of the world’s shadiest and most powerful people.
“It will keep a lot of agents very busy for a very long time,” the official told NBC News. “They will be following the leads and figuring out who is trying to hide stuff illegally — money and also illegal activities.”
The official said numerous federal agencies—the FBI, the DEA, the IRS and the CIA, for example—hope what’s in the leak will strengthen existing cases and give life to new ones against everything from drug lords and corrupt governments to terrorists.
But there are ethical issues. Attorney-client privilege shields those who hired the law firm of Mossack-Fonseca, the Panamanian company whose documents were provided to journalists. Improperly acquired information, no matter how true, can stop an investigation or prosecution. If the Mossack-Fonseca documents about forming shell companies and other sketchy (though legal) arrangements were hacked or otherwise illegally obtained—and one or the other seems almost certain—it could make prosecution very difficult.
Josh Gerstein at Politico wrote at length about the situation last week:
It’s not only an issue of whether the records could be admissible as evidence or used by investigators. In many states, it is considered unethical for attorneys to review what they know or suspect are attorney-client materials that have been unintentionally disclosed.
Some lawyers say it would be risky for Justice Department lawyers or FBI agents working for them to start rummaging through the files, even if people around the world are doing just that. […]
[A] top Justice Department official told reporters Tuesday that prosecutors often turn to a so-called “taint team” to try to keep privileged information out of the hands of lawyers involved in building court cases.
But even a taint team might not be enough, according to some sources. An advisory from the D.C. Bar in 1995 points out that a lawyer who inadvertently receives information relevant to a case violates ethical rules if s/he knows it was an inadvertent disclosure yet retains the information or reads it before returning it. That could be the case with most of the material in the “Panama Papers.”
(Originally appeared at DailyKos.)