The Retired Investor: Front running is alive and well in America

On Friday, Oct. 10, just ninety minutes before President Trump took to social media threatening 100 percent tariffs on China, two anonymous accounts placed bets that cryptocurrencies would fall in the short term. By the end of the day, the cryptocurrency market had plunged $19 billion, resulting in a $160 million gain for those traders.

The plot thickens. Sunday night, before the futures market opened, the president took to the airways again, this time calming fears over a trade war with China. When markets opened on Monday and cryptocurrencies were skyrocketing higher, the same account placed a fresh short bet, this time for $160 million, that crypto would fall even further. Tuesday, after China upped the ante in its trade spat with the U.S., crypto crashed again.

Either someone is extraordinarily lucky or prescient.   Traders were quick to accuse this anonymous account of insider trading. Is this just a case of bad feelings, envy, or is there something fishy going on in the markets? Obviously, there is no conclusive evidence of insider trading, and even if there were, it is harder to prove and prosecute in the lightly regulated cryptocurrency market.

This is not the first time this has happened. Front-running important news has become a lucrative pastime this year. A week before Liberation Day on April 2, a key official who shapes the Trump administration's trade policy sold off $30,000 worth of stock. Two days before that ill-fated day, a state department official sold $50,000 in stock. Readers may recall that the stock market plunged dramatically after President Trump's reciprocal tariff announcements. More than a dozen U.S. officials in total sold stocks before the announcement that sent stocks plunging that day.

Democrats were quick to accuse the White House of insider trading, demanding an investigation into all the transactions by staffers leading up to April 2. Kush Desai, a spokesperson for the administration, argued that they should instead investigate their own Nanci Pelosi if they were interested in an insider trading probe.

The Democrats' accusations are a proverbial case of the pot calling the kettle black. Members of Congress of both parties are permitted to trade stocks, and almost all of them own shares in publicly traded companies. Congressional lawmakers have access to nonpublic information that has been shown to move markets, individual stocks, and sectors. A New York Times investigation found that 18% of congressional members trade stocks in industries related to the work of the congressional committees on which they serve. Talk about a conflict of interest!

There are laws in place that prevent front-running and insider trading. The Securities Exchange Act of 1934 aimed to prevent insider trading on the stock market by mandating disclosures; however, this requirement did not apply to members of Congress. The STOCK Act, passed in 2012, partially closed that loophole. It requires Congress to disclose stock trades of more than $1,000 within 30 days. Penalties for failing to do so are a mere $200 for a first-time violation.

And guess who investigates legislators' violations—Congress. The proceedings are private, and enforcement is inconsistent at best. Insider abuse is so well-known that there are at least six internet services that track congressional stock trading, and at least one that tracks Nanci Pelosi's stock picks daily. If you ever wondered how elected officials manage to acquire vast fortunes on their congressional salary, now you know.

Regarding the accusations against the Trump administration, a research paper by Paul Odin, Assistant Professor of Law, published in the Oxford Business Law Blog, argues that, under the definition of market manipulation as outlined in the 1934 Act, neither Trump nor his team violated the law. As for insider trading under the Stock Act, "theoretically," Trump may have been in breach of its provisions. That would be difficult to prove, and in any case, he is protected by presidential immunity.

The facts are that no sanction for insider trading has ever been imposed under the Stock Act, and given Congress's track record, it is unlikely that it ever will. The president has stated publicly that he has not engaged in insider trading, but he admitted that he cannot definitively claim that members of his administration have not.

A recent poll found that 7 in 10 Americans hold unfavorable views of Congress, and a majority of both Republican and Democratic voters support a ban on congressional stock trading. Leaders from both parties, including President Trump and President Biden, House Speaker Mike Johnson, Minority Leader Hakeem Jeffries, Congresswoman Nanci Pelosi, and Treasury Secretary Scott Bessent, support some form of a ban on congressional stock trading. So far, no legislation has crossed the finish line.

As for the mysterious whale that cleaned up in the crypto market, it is doubtful any action will be pursued. The truth is that leaking information to players in the financial markets and other insider trading schemes have been in existence for longer than anyone can remember. Have you ever noticed that markets sometimes rise or fall substantially in the hours leading up to the announcement of a significant economic data point? The same can be said for stocks, and lately, even sectors, more often than I would like to see. It is hard to imagine, given this golden age of grift, that curbs on these illegal practices will be forthcoming anytime soon.  

Bill Schmick is the founding partner of Onota Partners, Inc., in the Berkshires. His forecasts and opinions are purely his own and do not necessarily represent the views of Onota Partners Inc. (OPI). None of his commentary is or should be considered investment advice. Direct your inquiries to Bill at 1-413-347-2401 or email him at bill@schmicksretiredinvestor.com.