How Will Gorsuch Handle White Collar Crimes?

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

Many in the Democratic Party are dumbfounded that Gorsuch was accepted to the Supreme Court. Because of the use of “nuclear” tactic, many on the opposing side feel cheated and are worried about what a Gorsuch bench will look like. Specifically, law pundits are debating what Gorsuch will do for the determination of white-collar crimes around the nation.

Although they are seemingly harmless to some, the West Coast Trial Lawyers can attest that white-collar crimes can cause more fallout and destruction than other types of crime, and on a much wider scale. Many are wondering whether Gorsuch will see white-collar crime as serious or as a minor indiscretion in business practices. Another concern is the fact that Judge Gorsuch’s hearing consisted of what many legal scholars believe is vagueness and confusing answers related to how white-collar crimes should be addressed.


Some Gorsuch opponents insist that his speeches and past opinions indicate that he will be soft on white-collar crimes and will make it too difficult to prosecute criminals by making the need for evidence so arduous. It isn’t just the speeches, but his central focus on Americans and American crime and the negation that there are reaches outside the US that severely affect the economy. Being able to apply the criminal statute to other nations outside the realm of the US is an important part of prosecuting white-collar crimes.


An example of the ways that hurdles are put in place to prosecute white collar crimes is the concept of “personal benefit.” In essence, it was a clause in the law to prosecute trading imposed by the Supreme Court over two decades ago. The ruling maintained that it wasn’t enough for someone to give insider trading information to someone else, but it insisted that a prosecutor has to prove that they did so to gain some “personal benefit” from their information.


Often, that leaves a loophole for those who commit securities crimes. If they themselves didn’t profit directly or their benefit can’t be proven, then many get away with providing information to give an unfair advantage to the already advantaged in America and beyond. There is fear that a Gorsuch Supreme Court might tilt the bench in favor of instilling more white-collar crime barriers to prosecution. There is worry that corruption can reign in the American court system if it becomes too difficult to prove that someone has committed a crime in the banking or financial world.


The biggest problem with white-collar crimes is figuring out the chain. Typically, there is a systematic way to sidestep regulations and to hide the origination of a white-collar crime. Making it harder isn’t something that the justice department needs, and that might not only foster crimes on American soil but overseas, where it becomes even more problematic.


The US v. Newman is only one example of the limitations that can be influenced by one ruling by the Supreme Court. The government alleged that insider trading led to an unfair advantage by a particular portfolio management group that included Anthony Chiasson and Ted Newman. The problem was that following the tip from source to source was nearly impossible, which led to the debate of whether you should punish those who don’t benefit and are nothing short of pawns while letting the big players go, or to forget the whole thing and let everyone off the hook. Big corporations and heavy-hitting players are experts at covering their tracks and letting the small guy who hasn’t a clue, take the fall.


Prosecuting the small fish in a sea of corruption does very little to take down the tide, but if you remove all the restraints available to prosecute white-collar crime, that is exactly what you are left with. That is why corruption — not just in America but everywhere — has been allowed to continue.


The question is whether a Gorsuch-stacked Supreme Court will work to strengthen the tools that prosecutors have to punish criminal law offenders or whether they will make it harder to sentence  the guilty parties. The Supreme Court was created to guide the justice system in the right way and to move things in the direction of true justice, so there are many people who are nervous about what a Gorsuch Supreme Court will do going forward.


The Supreme Court is no doubt at a tipping point. It can either go the route of a living and breathing document, or it can be read as written without variation. What Gorsuch will do overall is not in question. A conservative by nature, there is very doubt that he will uphold the Constitution. White-collar crimes, which were probably never tackled at a time when the Constitution was being formed, have been decided upon along the way, so what a Gorsuch-swayed Supreme Court will decide is anyone’s guess.


Hugh Howerton