The KPMG Case: Does Dismissal Go Far Enough?

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The Wall Street Journal’s editorial page comes out swinging against the prosecution in the now infamous KPMG tax shelter case. After a long list of the abuses, usurpations and creative legal theorizing by the prosecutors, the editorial page calls for the judge in the case to dismiss the charges against the defendants, who are former employees and advisers to KPMG.

This case has been shot through with prosecutorial overreach from the first, and the U.S. Attorney's office pushed the boundaries of the law to win it. Due process is the sine qua non of a just system of criminal law. When those entrusted with upholding it instead trample on it, they have surrendered any claim to be acting in the public interest. Judge Kaplan has suggested in court that if private citizens had done some of the things that the KPMG prosecutors have done, they would be on trial. If Attorney General Alberto Gonzales won't dismiss the case, Judge Kaplan should do it for him.

But we have to wonder, will dismissing the charges go far enough? The prosecutors have asked Judge Kaplan to dismiss charges as part of a risky gambit to set the stage for an appeal to a higher court, where they hope to overturn Kaplan’s earlier rulings that they violated the defendants’ constitutional rights to counsel. The appeals process could take several more months or even years, perhaps going as high as the Supreme Court. If the prosecutors win their appeal, the case will land back down at the trial level. This means that the KPMG defendants could spend several more months or years in legal limbo, a very costly legal limbo while their legal bills continue to stack up.
If the case against the KPMG defendants is as bad as the Journal editorial board says it is, shouldn’t the editorial have gone further? Where’s the call for President George Bush to pardon the defendants? Or is the power of the presidential pardon reserved exclusively for the politically well-connected these days?
The KPMG Fiasco [Wall Street Journal]

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