In the aftermath of financial and corporate frauds, aggressive government policy is apparent. But while touting a crackdown to correct past prosecution failures, one sees the government using shortcuts in both agency policy and prosecutorial practices. These shortcuts can be seen in the investigative, charging, and plea areas. There is an increased use of search warrants, wiretaps and failures to adhere to criminal discovery obligations. So too, one sees the government charging shortcut offenses such as perjury, obstruction of justice and false statements as opposed to the underlying conduct that was initially being investigated. Taking advantage of over-federalization and over-criminalization is seen in the stacking of multiple charges, tacking on conspiracy and money-laundering offenses, and in adding new plea waivers to secure finality of all issues and avoid future litigation. While these aggressive policy moves may seem efficient, the use of shortcuts has serious consequences that undermine deterrence and legitimacy in the criminal justice process.

Perhaps the least sympathetic party in a corporate criminal matter is a corporate entity that has engaged in criminal conduct. If the corporation is large, subject to third party civil actions, and especially in an industry dependent upon a public perception of ethical behavior, a criminal indictment can destroy the entity, and few in society are likely to be concerned. To ameliorate the collateral consequences of an indictment, corporations are quick to cooperate with the government by signing onto non-prosecution, deferred prosecution, or plea agreements. The government secures a hefty fine and obtains from the entity the names and evidence against individuals who allegedly engaged in the corporate misconduct.

But what if companies refused to cooperate? What if corporations demanded speedy trials? What if the power and resources of the entity were used to protect innocent or naïve corporate constituents? What if the corporate fines were directed to third parties who could assist in correcting any wrongdoing?

Proposed here is the idea that corporations need to reevaluate folding to the government and instead present a united front against government attempts to extort money and evidence from them to the detriment of their corporate constituents.

Prosecutors have enormous charging and plea discretion, although this discretion is not “unfettered.” This Essay examines this discretionary function when prosecutors in white collar cases stretch statutes beyond the statutory language, congressional intent, or policy. This Essay looks at three areas of white collar crime that have seen prosecutorial statute stretching: fraud, obstruction-of-justice, and bribery. Within each of these areas, there are examples of cases requiring judicial oversight to halt these prosecutorial practices. This Essay concludes by noting that prosecutors who stretch statutes do a disservice to our criminal justice process, as it is important to strictly construe white collar statutes to assure that criminal conduct is recognized and conformity with the law is promoted.