A few days ago, I argued for affirmative answer to the question If Obama was CEO of a public corporation and I was the company's general counsel, would I have told him about an audit of misbehaving employees? Now Heritage Foundation blogger Daniel Dew tackles a similar question, concluding that If Obama Were a CEO, Government Would Hold Him Responsible for Scandals.
It is interesting to note, however — by way of analogy only — that under the DOJ’s standard of “responsibility,” if President Obama were the head of a corporation, he would be responsible and could be prosecuted.
The Responsible Corporate Officer Doctrine allows federal prosecutors to criminally prosecute business owners and officers for the criminal activity of their businesses, regardless of whether they had knowledge of the illegal activity. The only requirement for criminal liability is “some relationship between the executive’s supervisory responsibilities and the underlying misconduct.” Put another way, in order to obtain a conviction, the government need only prove (1) illegal conduct occurred, and (2) the corporate officer had authority to exercise control over the activity.
The DOJ has used the Responsible Corporate Officer Doctrine to make criminals out of many well-meaning business people. In United States v. Park, the Food and Drug Administration (FDA) prosecuted the president of a corporation under the theory that his subordinates committed violations of the Food, Drug, and Cosmetic Act that the president had the ability to prevent or correct. Park, the company president, had delegated responsibility to correct the violations to one of his employees, who, regrettably for Park, did not follow through on his responsibilities. Park was convicted for FDA violations that he did not commit, order committed, or conspire to commit.
Just to be clear, there is no evidence in the recent Obama Administration scandals that criminal behavior took place, but the executive branch should stick to one definition of “responsible.” The DOJ definition of “responsible” is especially troubling in the context of a criminal prosecution where a person’s individual liberty is at stake—not just news stories that make the President look bad.
Point very well taken.