Hervé Lehman is a former investigating judge and lawyer at the Paris bar. He has notably published
L'air de la calumnie.
A history of defamation
(ed. du Cerf, 2020),
The Fillon Trial
(ed. du Cerf, 2018) and
Justice, a guilty slowness
(PUF, 2002).
LE FIGARO. - The National Financial Prosecutor's Office announced on April 6 that it had opened a preliminary investigation by the head of "aggravated money laundering of tax fraud", "after having read the report" of the Senate inquiry committee on the growing influence of consulting firms on public policies, and "after carrying out checks". How does this decision inspire you?
Hervé LEHMAN. -
The National Financial Prosecutor's Office (PNF) was used (if not created) by François Hollande to smash the leaders of the Republican right, Nicolas Sarkozy then François Fillon, with remarkable efficiency.
The situation today is very different since the McKinsey affair concerns the power in place.
Let's remember: in 2017, the National Financial Prosecutor's Office had opened an investigation the same day as the publication of the article in Le
Canard Enchaîné
on the employment of Pénélope Fillon, and had immediately published a press release.
This time, the National Financial Prosecutor's Office has given itself time to reflect since the report of the Senate commission was made public on March 17, and the investigation was opened on March 31, in the greatest discretion to be revealed on April 6 after many voices, including a group of magistrates, were surprised at the lack of an investigation.
There are two hypotheses: either the National Financial Prosecutor's Office learned from the catastrophic experience of the Fillon affair, where its hasty and thunderous intervention altered the democratic process, and wished this time to respect the Republican truce in the pre-election period, or his behavior is different when the affair concerns the power in place.
What can we expect from this survey? Could this file, in the long term, provoke a myriad of searches at the heart of the state apparatus?
The judicial inquiry will not disrupt the elections, as the timetable is now too tight.
This does not mean that the revelations of the parliamentary report do not have an effect on the voters, but it is not a question of judicial interference in the elections.
The case will therefore follow the unfortunately usual rhythm of financial affairs: it will be very long.
The affair of the parliamentary assistants of the MoDem, which earned his ministerial portfolio in 2017 for the ephemeral Keeper of the Seals François Bayrou, is still in progress.
We can indeed expect searches in the ministries, especially if an investigating judge is appointed.
Remember that recently, it was the office of the Keeper of the Seals which was raided by judges of the Court of Justice of the Republic, until they drilled an old empty safe with a blowtorch.
If there is a second five-year term for Emmanuel Macron, this affair will distill its venom as investigations and revelations progress.
For his part, Emmanuel Macron suggested that McKinsey's tax practices were not illegal. "Nobody makes companies like this pay tax, because those are not the rules," he said on March 23 on M6.
It is far from certain that McKinsey committed a crime of tax evasion.
It is obviously shocking for all those who have no choice but to pay their taxes to see foreign companies, often American, not paying taxes in France on the money they have earned in France.
But tax optimization is not necessarily synonymous with tax evasion.
The tort assumes that the rules have been violated, or at the very least that there has been an abuse of rights.
In the case of so-called transfer pricing, determining the abusive nature of the royalties paid by the French subsidiary to the foreign parent company is not easy.
Thus, the recovery of more than one billion euros imposed on Google had been canceled by the administrative court of appeal.
Justice chose to investigate a possible tax fraud by McKinsey and not a potential conflict of interest or influence peddling. How to explain it?
Tax evasion only concerns McKinsey.
Questions around the use of McKinsey's services concern the power in place.
Is this an explanation?
Certainly there are serious questions about the relationship between McKinsey and the outgoing president.
We know that McKinsey employees worked voluntarily for Emmanuel Macron's election campaign in 2017, then that the ministries made this company work.
Have free services been accounted for in campaign accounts?
Is there a link between these free services to a candidate and the public contracts subsequently awarded to McKinsey?
Were public procurement procedures properly followed?
These are questions that should be of more interest to a National Financial Prosecutor's Office than the taxes paid or not by one taxpayer among others.
Sooner or later, justice will tackle it.
But after the election.
If the PNF takes it into his head to check all the services invoiced by McKinsey, this risks occupying him for a whole five-year period. Will this file really be a thorn in the side of Emmanuel Macron, if the outgoing president is re-elected?
We have seen how the affair of the Élysée polls and that of the campaign accounts had harmed Nicolas Sarkozy and his entourage for ten years.
Emmanuel Macron enjoys immunity as long as he is President of the Republic, then for everything he has done as President.
But this immunity does not benefit either the members of his cabinet or his ministers.
It is doubtful that the magistrates, who did not swallow the affront they felt because of the appointment as Keeper of the Seals of Éric Dupond-Moretti, will ultimately be much more flexible with the entourage of Emmanuel Macron than with that of Nicolas Sarkozy.
If there is a second five-year term for Emmanuel Macron, this affair will distill its venom as investigations and revelations progress.
Unfortunately,