The Manhattan U.S. Attorney still has a couple of cards to play if he hopes to reverse the abject ruin of his life’s work. Unfortunately, the flipside of one card might read, “Justice Scalia delivered the opinion of the Court,” and Preet’s pretty sure he won’t like what follows that portentous announcement. Meanwhile, the other involves working with John Boehner and Mitch McConnell, who are not exactly noted for their delicate or rational handling of people who work for Eric Holder and Barack Obama. The third option is to take his medicine and gaze upon the framed Time magazine cover, reminiscing about better times.
The government may have to take a step back by skipping cases when the relationship between the recipient and source is only a casual friendship. That may mean golfing buddies will be largely immune from insider trading charges, but most cases involving significant trading are likely to involve the type of benefits that can pass the Newman test.
This approach will be frustrating for hard-charging prosecutors and S.E.C. enforcement lawyers who now have to ease up a bit, but letting the law develop may turn out to be the best approach.