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To listen to American scandal one week early and add free, join Wondry Plus in the Wondry app. Download the Wondry app in your Apple or Google Play mobile app store today. From Wondry I'm Lindsay Graham and this is American Scan. In the world of finance the hedge fund SAC Capital was in a league of its own. Founded by the investor Stephen Cohen, SAC grew to be one of the biggest and most powerful firms on Wall Street. But SAC Capital's dominance wouldn't last. The hedge fund faced accusations of insider trading and several of its employees were charged with crimes. And after enduring a series of bruising investigations, SAC Capital settled with the government pleading guilty to charges of fraud and agreeing to stop taking outside investments. The investigation into SAC Capital renewed the public's focus on financial crimes and it highlighted how investors on Wall Street often play by a different set of rules than the rest of the American public. The same issue has come up as members of Congress have come under fire for their own investments in the stock market. These legislators have faced accusations of self dealing and now find themselves under pressure to forego stock trading altogether while in office. My guest today is Dave Levinthal, deputy Washington bureau chief for the publication Insider. Last December he and his colleagues began publishing a series of articles under the banner conflicted Congress. They are reporting found that federal legislators were routinely breaking a law intended to protect against insider training, a finding that's been credited with pushing Congress to take action on the issue. In our conversation we'll look at some of the more shocking discoveries from Levinthal's reporting and discuss whether Congress might be willing to set aside partisan divides, pass new sweeping legislation. Our conversation is next. American scandals sponsored by Sachi Art. I'm lucky. 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It's a series that reveals what's described as in quoting here the depths of lawmakers conflicts of interest, potential self dealing and disregard for a decade old law designed to prevent corruption at the highest levels of American government. That's a strong sentence. Give us an overview of your finding so far. It was a strong sentence that really was born out of what was supposed to be a strong law. So the quick history here is that in 2012, Congress with a overwhelmingly bipartisan majority passed a law known as the stop trading on congressional knowledge act of 2012. And it was especially supposed to do two things. Number one, it was supposed to prevent and defend against financial conflicts of interest that members of Congress could potentially have. And in some cases did have and because of great reporting that was done in a couple of books by 60 minutes, it was clear that we had members of Congress earlier in what is now this in 21st century who were literally using their time in Congress to make financial trades and were engaging in what many people considered to be tantamount to insider trading. It was legal. It was done in practice. And ultimately, Congress could not stomach it anymore and decided to pass this bill. What it was also supposed to do is create a new and enhanced transparency regime where members of Congress who were still allowed to, for example, buy and sell stocks. So if a senator wanted to buy 100 shares of stock and exon mobile, if a house member wanted to go and invest in general motors or general electric or general mills, they could do so still, but they would have to disclose the fact that they had purchased or sold that stock within at least by congressional standards are relatively short period of time. And that time period was 30 to 45 days based on the kind of trade that they were making. So that all sounded all well and good when Barack Obama put his John Hancock to the bill and signed it into law. And off we went. But what we found in the here and now today, Lindsay, is that the reality of the stock act has not lived up to the expectation of the stock act in many very, very important regards and that members of Congress, as well as top congressional staffers who are also subject to this law. In many cases, it just simply ignored it and that the penalties for violating it are inconsistently applied when they're applied at all and that the penalties are very low to begin with. So in essence, we have found dozens of examples among lawmakers and nearly 200 examples among top congressional staffers of people who have violated the stock act since 2020. There were, I recall, some high profile trades and reporting failures by members of Congress immediately prior to the pandemic that many found suspicious. What prompted you and your team, though, to start looking into this issue specifically? So in February of 2020, right before the pandemic really came into full flourish in the most awful of ways, there were a series of stock trades, particularly by a group of senators, Richard Burr, Republican from North Carolina, Diane Feinstein, Democrat from California, then Georgia's two senators, Kelly Leffler, and David Perdue, who made very curiously timed trades that to varying degrees raised the question of, well, were they buying and selling stocks because they had insider knowledge that they were privy to because they were members of Congress right before the stock market tanked in March of 2020 when the pandemic, the teeth of the pandemic really came down on the United States in particular. And there were accusations. There were in some of those cases investigations that took place, but none of it amounted to any real penalty. We wanted to try to understand and try to figure out if these were anomalies in Congress, or if there was something broader, and if you will, batter going on in Congress. And that's when we began to really, in earnest, start looking almost on a daily basis at the publicly available information about lawmakers personal finances, and also beginning to dig into the reality of the way things worked upon Capitol Hill, which required a lot of shoe leather reporting. So beginning in 2021, we began writing a series of articles about the personal finances of lawmakers. And in essence, we treated it as a beep. If you were a local news reporter, you would be covering City Hall or the school board or the cop shop. For us, it was covering the stock trades of lawmakers and trying to figure out if lawmakers in any material way were acting in their private capacity with their private finances in a way that could either in reality or in perception conflict with their official duties, conflict with the responsibility that they had by virtue of their constituents electing them to serve on Capitol Hill. And what we found was that there were a series of situations that we had discovered where lawmakers were making very curious stock trades. So we're buying and selling stocks or otherwise making investments that, for example, were in companies that they had jurisdiction over because of the different types of committees that they served on in Congress. And all of this incremental reporting ultimately gave rise to us making the decision to really just go full all on in and do a project on this very topic that ultimately manifests itself in the project now known as conflicted Congress. So we have this 10 year old law on the books that nominally tries to prevent all this behavior. Let's investigate why it is failing to do so. Why aren't members of Congress following the rules of the stock act? One of the most notable features of the stock act, some might consider it to be a bug, is that the penalties are incredibly low. For example, we'll pick on representative Pat Fallon. He's a Republican from Texas. We found that he made dozens upon dozens of stock trades that together were valued at upwards of $20 million potentially, and that he violated the stock act by disclosing all of those trades weeks or months past a federally mandated deadline for doing so. And this deadline is in place so that the public can have transparency into lawmakers finances to determine for themselves whether a lawmaker is basically trading stock on congressional knowledge or making stock trades at a time when a particular company might be lobbying Congress to a very strong degree or have a bill that's pending in Congress that could dramatically affect them in their financial fortunes. So Pat Fallon, he made these trades, they were all late, they added up to a huge dollar amount. What was the fine that Pat Fallon had to pay for this transgression? Well it was $200 because that's the fine for any transgression when it comes to the stock act, at least as far as Congress is concerned. So in essence, that's one situation that has been replicated many, many, many times over over the past couple of years where there is very little incentive, at least from a penalty standpoint for members to do the right thing. And that's been one of the criticisms of the stock act in particular, especially from those in Congress who would like to change the stock act, or definitely good government group types who feel that the stock act is decidedly weak. They say that the penalties are a joke that they should be a heck of a lot stronger and unless there are real consequences for members violating the stock act, the members will continue to do so. I'd like to dig into the construction of this bill a little bit because $200 is tantamount to a stiff parking fine. Clearly the framers of this legislation probably knew that. And I'm wondering though, was it just difficult to get through a bill with real penalties? Or was there some thought that the political consequences of being found guilty of trading on government, privileged government information we've big enough for politicians to pay attention to? So the open secret about the stock act is these are rules put in place by Congress for Congress. When the stock act was passed, the expectation and the hope among members of Congress was that members of Congress would do the right thing that they would comply with the stock act, that they would abide by its transparency provisions, say nothing of its conflict of interest provisions, and that this would not be that big of a deal. The real work had been done and that everyone was just going to basically follow the rules as had been created by members of Congress itself. Well, in practice it did not turn out to go in that direction in the ways that the crafters of the stock act had hoped. And this underscores a very important point here, which is that when the stock act was first introduced or first conceived, it had provisions in it to ban members of Congress from trading stocks at all. So hit it past in that regard, we wouldn't be having this conversation in the way that we're having it because it would have been patently illegal for a member of Congress to go on their stock trade app and buy a thousand shares of Apple or Tesla or whatever the case may be. You gave us one example of a violation of the stock act and that was based on a delay in reporting. But I wonder what other examples are there that might be more egregious actual trades of stock based on inside information. So when we talk about a violation of the stock act, there's two kind of parallel tracks that we go on here. One is what we can see and what we can measure and what we can analyze. And that is the disclosure provisions of the stock act. So if a member of Congress is weak or a month or a year late in disclosing the fact that they had made a stock trade, that they had bought or sold shares of stock or otherwise made a personal financial transaction that by law, they are supposed to disclose in a dedicated defined period of time, then we as reporters can figure that out and put two and two together and report that somebody has broken that portion of the law and that's a lot of what we've seen because we can see it and we can analyze it and we can measure it. Where it gets very gray, very quickly is whether a member of Congress is engaging in prohibited insider trading. It's almost impossible as it is right now to prove that a member of Congress has engaged in insider trading as it's defined in the stock act. And why is it so difficult? Well, it's difficult because the burden of proof is incredibly high on the government. So Congress itself is the first line of defense when it comes to enforcing the stock act. So if somebody has done something wrong, either the House or the Senate Ethics Committee can look into it, they can investigate it and theoretically they can penalize a member to a relatively strong degree if ultimately somebody has been determined a member of Congress to have violated that insider trading provision of the stock act. So how many times in the past ten years as a member of Congress been basically found guilty within the House Ethics or the Senate Ethics Committee of violating insider trader provisions of the stock act? Well, the answer is zero. It has never happened. And how many times has the Department of Justice gone after a member of Congress and prosecuted them for insider trading even after investigations? Well, the number there is also zero. So in practice, in reality, you can see that number one, there may be certain disincentives to going after one of your own. And that is the nature of politics. That's human nature. And also to that, when it comes to any type of criminal violation that there either has just not been enough proof or there has not been the stomach and the appetite for the Department of Justice to go after a member of Congress in this regard. And in part of that is just baked into the stock act that because the burden of proof is so high because you have to have such a level of evidence to prove that somebody has engaged in insider trading and you have to get basically beyond the countervailing arguments that members of Congress can say, such as, oh, well, I'm just using public information that's available or I'm very good at stock trading. But the closest thing that we've gotten to insider trading with a member of Congress in the past 10 years is with Chris Collins, a former member of Congress from the Western New York area, who was ultimately convicted on insider trading related type activity. But this did not fall under the stock act. It was actually prosecuted under a completely different law as separate and apart from the stock act. And although Chris Collins did serve a brief period of time in federal prison for this, he was pardoned by then president Donald Trump in late 2020. The best weddings are always filled with unforgettable moments and personal thoughtful touches. Like my friend Cecilie's wedding where the groom tossed the bouquet. For any kind of wedding you want, there's one place to start. Zola has everything you need all in one place. They've thought of everything. Venues, invites, registry, and more and they'll be with you every step of your wedding planning journey. Whatever your style or budget, Zola has you covered with venues, photographers, florists and more to make your wedding happen. Once you've set the date, you can send your save the dates and invitations right on Zola too. 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The new season of this is actually happening is available ad free only with Wondry Plus. And if this new season isn't enough, you can listen to more than 120 exclusive episodes available only to Wondry Plus subscribers. Join Wondry Plus on Apple Podcasts or on the Wondry app. Let me play a very naive devil's advocate here and say if there's been no no prosecutions, no one found guilty of committing insider trading under this law, then how do you know that it's actually a problem? And the easy answer is we don't. It's very difficult to prove something that is very difficult to prove. And what we do know though is that in our reporting on this topic that we've found a number of examples of members of Congress engaging in stock trades, buying and selling stock of companies that they themselves have a governmental interest in. So for example, we have found numerous members of Congress who sit on the House or the Senate Armed Services Committee. Well, what are they trading in? Well, they're trading in lots of things, but they're trading specifically in companies such as Lockheed Martin and Raytheon and Boeing and Honeywell. What are these companies? They're defense contractors and they're subject to the oversight of the committees that those members of Congress sit on. We found numerous examples of members of Congress who have jurisdiction over healthcare policy at the beginning of the pandemic, trading in companies such as Pfizer and Johnson and Johnson and Moderna and companies that made and make personal protective equipment and companies that made COVID tests. Now can we prove that they were acting on insider information when they were making those stock trades? Well, for the reasons we discussed earlier, no. It's very difficult to definitively prove that they did so. We were not in the rooms with them in private when they were having conversations about this. We don't know what information they got or didn't get, but we can see that at the same time that they were dealing with policy that directly affect the very companies that they were investing in, well, they were investing in those companies. And in some times to a very significant degree where the amount of trades that were taking place were measured in the tens of thousands or hundreds of thousands and in a few extreme cases, the millions of dollars all throughout. In our series, we looked at SEC capital and Stephen Cohen and his pension for a coaxing up to insiders and cleaning the information from them for big trades. But for members in Congress, it's a little different. They clearly have access to all sorts of information that is not public record. But I'm wondering if you could give me specifically a portrait of how members of Congress are different from normal everyday investors in what information they receive. So members of Congress are privy to information and are receiving information and have the ability to access information that almost no American does in the way that they as members of Congress do. So for example, you have members of Congress who are parties to classified briefings where they're getting information about military movements across the country about the way that the economy is working, about the way that the healthcare system is working. And because of that information that they're receiving, it does not take a very far leap to come to the conclusion that they have more information, potentially better information. And definitely more timely information than just the average Americans sitting at home, wondering if they should buy 100 shares at this stock or that, or their TD Ameritrade app. So as a result, being a member of Congress, it is a privileged position, of course, by virtue of you being in elected office. But it's also a privileged position because of the information that you have that you're being given not so that you can make good stock trades, but so that you can do a good job as a legislator that you can do an effective job as the representative of the people from your district or from your state who sent you to Capitol Hill to do your job. Now there's also another type of perhaps use of information available only to persons in Congress and that's self dealing. That's not really trading on information that's private or not available to the public, but actually perhaps creating a situation in which a stock price might change. How rampant do you believe this practice is? That's a little less clear. And but when you talk to members of Congress who very much want to strengthen the stock act and some members who want to outrightly ban members of Congress from buying and selling stock while they are members of Congress, they do fear this and they bring this up a lot to say, look, the only way to know for sure that a member of Congress is doing the right thing, the only way to be certain that a member of Congress is not using their position as a member of Congress to gain the system or act on insider information to self deal is to ban them from buying and selling stock. So we're having a very active discussion right now upon Capitol Hill. I use the Royal We because it's members of Congress themselves. It's advocates. We are definitely writing a lot about it in the press. And we're having a very robust conversation. Really nationwide as to what the expectation should be going forward of members of Congress as it applies to their personal investments. And much of this is coming right back to sort of the initial crux of the old stock act. The original stock act is this question of just bottom line should members of Congress have the ability to trade stocks or should they stop themselves from trading stocks so that they could basically wipe away any question that could be raised about whether they are operating in the public's best interest or are they more so operating in their own personal private interest? Thinking about the original stock act clearly, it's not just the members of Congress that perhaps are under its jurisdiction. There are certainly spouses and close family members, advisors, any number of persons could be taking advantage of the Congress person's inside information. And it becomes very difficult, for instance, if a Congress person's spouse happens to be a stockbroker. How would you possibly say I'm sorry your entire means of making a living is now forbidden? Talk to me about spouses and close family and how they are entangled in this. As we debate whether to ban members of Congress from trading, buying, selling stocks, the issue of spouses and the issue of dependent children is very much come to the forefront. Let's go back to December. We had published our conflicted Congress project initially. There were many, many questions that the project raised about whether members of Congress were operating correctly. One of my colleagues, Brian Metzger, a Asnancy Pelosi speaker of the house, a question a couple days after our project published saying, well, should members of Congress be banned from trading stocks? And she said, and I paraphrase, it's a free market economy. And no, members of Congress should not be banned from trading stocks. They should be able to participate in that free market economy. Well, what's notable about Nancy Pelosi in addition to the obvious fact that she is a speaker of the house and arguably the most powerful member of Congress? Well her husband, Paul Pelosi, is a venture capitalist and a financier. He's incredibly wealthy and stock trading is what he does. Paul Pelosi has for years made millions upon millions of dollars every year of stock trades that are not part of his official duties in his job, but makes those trades on behalf of himself and, ostensibly, his wife, Nancy Pelosi, as a family. And Nancy Pelosi cannot argue that her husband's stock trades have no benefit to her. Of course they do. Talk to any married couple and you will find very few who have zero knowledge of their spouses, financials, especially in this day and age. So as a result, there's this broader question in play in Congress, which is, all right, if you ban a member of Congress from trading stocks, but you allow their spouse to do it, isn't that just a giant honking loophole that any member of Congress can drive a truck through? If you're into true crime, the Generation Y podcast is essential listening. We started this podcast over 10 years ago to dissect some of the craziest and most notable murders, crimes, and conspiracy theories together, and we'd love for you to join us. Generation Y is one of the longest running true crime podcasts out there, and we are still at it, unraveling a new case every week. We break down infamous cases like the Evil Genius Bank robbery, and lesser known cases like the case of Kimberly Rico. Did she actually kill her husband after they took part in a murder mystery game? Recover every angle, breaking down theories, diving deep into forensic evidence, and interviewing those close to the case. 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Definitely never anyone has been expelled for insider trading or lack of disclosure or anything of the sort that would apply to the stock act. Then you get into the Department of Justice. They have the ability to, from a criminal standpoint, investigate members of Congress for their stock trades and whether they were violating the stock act or otherwise acting in what would be considered a potentially illegal criminal way in violating rules and violating laws that apply to their personal finances and their stock trades. Richard Burr, the senator from North Carolina, he would be the latest and best example of a member of Congress who was investigated by the FBI, the Department of Justice, for his stock trading activity. Although the investigation took place throughout 2020, it ended in the FBI not pursuing charges in early 2021. The Department of Justice has been, I think one can fairly say, reluctant to engage in a protracted investigations of members of Congress in this regard and the bottom line is that they have never brought charges against any member of Congress in 10 years. Now there's an argument as to whether that's because well, Congress is just not doing anything bad enough to actually rise to the level of the Department of Justice going after. But the other side of that coin is that the Department of Justice is highly sensitive to any type of activity that could be construed as political, as being vindictive against a certain party or a certain member of Congress. It's highly sensitive and that's why it can be difficult for these things to be pursued to their fullest extent. The Securities and Exchange Commission is an interesting animals. Oftentimes we think of them as the agency that truly is the cop on the beat when it comes to insider trading activity in the corporate realm, not so much the congressional realm. But yet they too do have a function if they choose to act upon it. It should be noted that the SEC is still looking into the matter with Richard Burr, the senator from North Carolina, even if the Justice Department has concluded its investigation and brought no charges against Richard Burr. Anyway, the SEC is a little bit of a dark horse here and the sense that they could become more aggressive if they chose to become more aggressive, particularly now that the SEC is part of the Biden administration where at least Democrats would have you believe that they're going to be more aggressive when it comes to ethical matters in government and making sure that government officials are on the straight and narrow. But we haven't seen any results of that in any tangible material way at least to date. There is no evidence that the SEC is becoming aggressive in the sense of investigating lots of members of Congress for potential insider trading. Now, we've been talking about members of Congress in the stock act in particular. But of course, the federal government is much bigger than Congress. There are hundreds of thousands of employees all of which might, at some point, be in contact with insider information that they could exploit. If I'm the person whose signature approves a new vaccine, I could stand to make a lot of money on that information. What kind of limitations are placed on these sorts of employees of the other federal branches to ensure that they're not also engaged in insider trading? The executive branch has stricter rules when it comes to personal finances and insider trading than Congress does in many respects. And we've talked to people, I'm laughing a little bit because you'll have off the record conversation or a background conversation with some low level government employee who says, yeah, the book is basically thrown at me. I've got to disclose everything and I have to divest things. And I can't have certain stock holdings in certain areas where my governmental work might intersect with my personal finances. And they're complaint is that Congress has written the rules for itself in a way that is much more permissible. So you might be a senator making laws and the rules for you are much more lax than some low or middle level government employee who definitely is not making laws. It's also worth noting the judicial branch. The Wall Street Journal had a wonderful report that looked into the very, very kind of dark and opaque world of judicial financial conflicts that may exist all throughout the federal judiciary. And they had found a number of examples themselves of judges who had made personal financial trades or investments that quite possibly could have affected them operating in a fair and objective way in the cases that were before them as well. So it really does affect the whole of government. So let's talk to potential rules then. If we've got a portrait of what the rules are now for Congress and they're much more lax than other members of the federal government, this conversation has been coming to a head recently. There's calls for further and more stringent action. What are the most viable options on the table? So right now Congress is weighing several different options for how they can potentially go beyond what the Stock Act provides today. One option is simply ban members of Congress from buying and selling individual stocks. So congressmen so and so no longer can buy that exon mobile stock. Now other measures would have that extended not only to the member of Congress, but the members immediate family. So spouses and dependent children would also no longer be able to buy and sell stocks in the way that members of Congress would ostensibly be prohibited from buying and selling stocks. Then you have other bills that say, well, let's not go that far. Let members of Congress still be able to participate in the stock market, but take the control out of their hands. And you have a couple of different ideas that are in the mix here of requiring members to put all of their assets in what's known as a qualified blind trust. So this would be a blind trust that would be administered by a independent trustee. And that independent trustee would be buying and selling stocks on behalf of a member, but the member would have absolutely no ability at least in theory to influence decisions that this trustee was making. And then there's ideas that say, well, okay, we're going to ban members of Congress from trading stocks, but we're going to let them invest in mutual funds or exchange traded funds or let them still invest in government bonds. Things that are not going to have a direct effect on their thinking when it comes to legislation or otherwise that they wouldn't be able to have go up or go down based on the fortunes of the way that the world is working or that they could not trade on inside information to make a good stock trade. And then finally, there's some more novel ideas, ones that, for example, would require a member of Congress to basically have a cooling off period. And the idea here is that if you wanted to buy a company's stock, you would basically have to take a time out. You would have to spend 30 days or 60 days or 90 days waiting for that stock trade to execute. And the theory behind why this would be a good idea, at least among the people who advocate for it, is that if you wanted to buy a stock, great, but you could not in that scenario use insider information to kind of time the system, to time the market. So those are some of the leading ideas right now that are being debated in Congress. And it'll be most curious to see where folks land. But I should note that at least to some level, Nancy Pelosi, Kevin McCarthy, the minority leader in the House, Chuck Schumer, the majority leader in the Senate, and Mitch McConnell, the minority leader in the Senate, all together, leadership, has at least, at some level, expressed on the record openness to going beyond what the stock act does today. And that's why we're having this conversation, not just in theory, but in a much more urgent way than we probably have been having it since the stock act was passed. Well, Dave Levinfall, thank you so much for your work on Conflicted Congress and speaking with me today on American Scandal. My pleasure, thanks for having me. That was my conversation with Dave Levinfall, Deputy Washington Piro Chief for the publication Insider. You can read his team's series Conflicted Congress Online on Insider.com. From wondering, this is episode five of the FBI versus the hedge fund from American Scandal. In our next series, we look at what may be the biggest political scandal in American history. In 1972, a group of burglarers broke into the Democratic National Committee headquarters in the Watergate complex. The goals of the Watergate burglarers were at first a mystery, but as Congress and the press pushed forward with investigations, they would discover a conspiracy that threatened to take down a president. If you like our show, please give us a five star rating and leave a review and be sure to tell your friends. I also have two other podcasts you might like, American History Tellers and Business Movers. Follow on Apple Podcasts, Amazon Music, or wherever you're listening right now. Or you can listen to new episodes early and add free by subscribing to OneGree Plus in Apple Podcasts or in the OneGree Amp. You'll also find some links and offers from our sponsors in the episode notes. Supporting them helps us keep offering our shows for free. Another way you can support this show is by filling out a small survey at onegree.com slash survey to tell us what topics we might come our next. You can also find us and me on Twitter. Follow me at Lindsay A. Graham, Lindsay with an A, Middle and Initially. And thank you. American Scandal is hosted, edited, and executed produced by me Lindsay Graham for Airship. Audio editing by Molly Bach, Music by Lindsay Graham. Our senior producer is Gabe Riven. Our producer is Stephanie Jens, Jenny Lauer Beckman, and Marsha Lui for Wonder.