Watch Your Language, Senator McCain

Jonathan Weil joined Bloomberg News as a columnist in 2007, and his columns on finance and accounting won Best in the Business awards from the Society of American Business Editors and Writers in 2009 and 2010.
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Senator John McCain in a letter yesterday to U.S. Attorney General Eric Holder referred to JPMorgan Chase & Co. as "the corporate target of a major criminal investigation." This would be big news if true. The bank hasn't made such a disclosure itself. As it turns out, the Arizona Republican should have chosen his words more carefully.

The word "target" has a very particularmeaning in Justice Department lingo. According to the U.S. Attorneys' Manual, "a `target' is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." By contrast, a "subject" of a criminal investigation "is a person whose conduct is within the scope" of the probe. The word "person" for these purposes can mean a natural person or a corporation.

Here's how Solomon Wisenberg, a Washington white-collar criminal-defense lawyer and former federal prosecutor, describesthe distinction: "As a practical matter, once an individual has been branded a target, the prosecutor has decided that the individual is guilty. The prosecutor is simply looking for strong enough evidence to indict." With a mere subject, "the prosecutor is not certain that a provable crime has been committed and wants to do more investigating in order to be sure."

Asked about the senator's use of the word "target," McCain spokesman Brian Rogers said in an e-mail that "he wasn't using the DOJ manual definition here." Rather, "it was intended to note that JPMorgan is the subject of a criminal investigation."

In that case, of course, McCain should have used the word "subject" in his letter instead of "target."

McCain's words carry added heft when it comes to JPMorgan because he is the top Republican on the Senate Permanent Subcommittee on Investigations, which held hearings earlier this year on the bank's London Whale trading debacle. McCain was an enthusiastic supporter of the probe and participated personally in questioning witnesses from the bank. If JPMorgan ever became a target, it's possible that McCain could be in a position to know. A JPMorgan spokesman, Joseph Evangelisti, declined to comment.

None of this should detract from the other points that McCainraisedin his letter to Holder, who met personally with JPMorgan Chief Executive Officer Jamie Dimon last week as part of settlement talks with the bank over a variety of civil and criminal probes. McCain said the meeting, "while negotiations on a global settlement agreement are pending, is highly unusual and, under the circumstances that the meeting occurred, gives rise to concern." Additionally, he said: "It is noteworthy that at the same time the bank is facing a litany of regulatory woes that carry hefty fines and potential liability in private civil suits, individuals within JPMorgan and other similarly culpable financial institutions have escaped accountability."

It isn't clear if the Justice Department plans to pursue criminal charges against JPMorgan. If it did, this would be a major surprise, given the bank's too-big-to-fail status. That said, it's important to stick to the facts. Give credit to McCain's spokesman for setting the record straight.

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