SEC Sought Freeze Order Despite ‘No Evidence’ That Binance Was Moving U.S. Customer Funds

The SEC’s “pre-crime” litigation strategy seemed to annoy Judge Amy Jackson.

AccessTimeIconJun 23, 2023 at 3:51 p.m. UTC
Updated Jun 23, 2023 at 6:18 p.m. UTC
AccessTimeIconJun 23, 2023 at 3:51 p.m. UTCUpdated Jun 23, 2023 at 6:18 p.m. UTC
AccessTimeIconJun 23, 2023 at 3:51 p.m. UTCUpdated Jun 23, 2023 at 6:18 p.m. UTC

In pretrial proceedings on June 15 in its case against Binance, lawyers for the U.S. Securities and Exchange Commission (SEC) struggled to justify their request for a near-total financial freeze order against American arm Binance.US. Judge Amy Berman Jackson, who is expected to oversee the entire case, was palpably annoyed as the SEC lawyers tried to fill the gaping hole in their allegations with wilting word-salad.

The exchanges, available in transcript form, were reported in coverage of last week’s hearings, but made the rounds of crypto Twitter again this week. They add to the much broader impression that the Securities and Exchange Commission has overreached its mandate at many levels in its apparent crusade to destroy cryptocurrency as a technology and industry in the United States.

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It also adds to increasing signs of displeasure with these tactics from other branches of government.

‘The assets are not going offshore’

The June 15 hearing considered the SEC’s June 6 request for an emergency injunction to freeze the assets of Binance.US, and to repatriate to the U.S. assets held abroad by related entities including

The request could be seen as part of the SEC’s larger attempt to paint Binance as not just in violation of U.S. securities law, but as a fundamentally fraudulent parallel to FTX. Requesting an asset freeze to ensure, as the SEC put it, “that Binance.US customers’ assets are protected and remain in the United States” suggests a belief that U.S. customer assets are at risk of being stolen by Binance entities or officials abroad.

The SEC has already seemingly failed to convince one important counterpart of this parallel: the U.S. Department of Justice has so far declined to file parallel criminal charges against Binance or CEO Changpeng Zhao. In the case of FTX and its CEO Sam Bankman-Fried, civil and criminal charges were filed within hours of each other.

As Judge Amy Berman pressed the SEC’s lawyers, it became increasingly clear that the SEC had at best circumstantial grounds for its requested freeze. Jackson expressed sharp frustration when the SEC could not provide any clear sign that U.S. customer assets had been, or were planned to be, exfiltrated by Binance International.

“It's happening or it's not?” Judge Barrett asked at one point. “It's kind of stunning to me that I've now asked this question to each of you [SEC lawyers] five times” without getting a clear answer.

“So currently the assets are not going offshore,” replied SEC counsel Jennifer Farer. “…the current accounts, we're not seeing any flows of money [to] outside of the United States.”

Judge Jackson also noted seeming discrepancies in earlier documents supporting the injunction request.

“There are a lot of details about amounts transferred and where they went…” Barrett asked the SEC’s lawyers. “You say these funds consisted in significant part of Binance platforms, plural, customer assets, including those of Binance.US … Can you clarify or walk me through the transfers you allege were made specifically from the U.S. entities, as opposed to the international Binance platform, to offshore accounts held by Zhao, and how you know that those were customer assets?”

The SEC lawyers did not appear to provide that clarity.

Instead, SEC counsel returned repeatedly to large transactions involving offshore entities. In one instance when Jackson pressed for detail on the claims of U.S. customer funds “dissipating” abroad, the SEC’s Matthew Scarlato repeated SEC claims that funds had moved among, CEO Changpeng Zhao’s personal entity Merit Peak and the holding company Key Vision.

Farer elsewhere claimed that assets flowing out of the U.S. were in fact not the key issue, because the freeze order on Binance.US was also intended to protect U.S. investor assets abroad. “We are concerned about all U.S. investors, both those on the domestic platform, Binance.US, and the international platform,”

This again left Judge Jackson seemingly flummoxed. “What you said in your memo was we need this [injunction] because we don't have sufficient reassurance that Binance.US customer assets … are in the control of BAM Trading. And you said you're concerned about the safety and security of those assets. And now you just told me, well, no, actually, the [injunction] is about all the investors on both platforms. What is it? Which is it?”

Binance has maintained that Merit Peak has not received customer funds, and is only a vehicle for Zhao’s own personal wealth and trading. That’s still questionably ethical if true – it could mean CZ was trading against his customers. But Judge Jackson did not seem to find it relevant to the question of Binance.US and the security of customer funds there. Jackson later in the hearing cited arguments by Binance that the SEC had “no evidence” of a risk to U.S. customer funds.

Pre-crime injunction

The SEC argued instead that the Merit Peak transactions, and similar international flows, were sufficient cause for concern about Binance.US customer assets. They also cited concerns about who had real control of certain multi-signature wallets holding Binance.US assets.

In other words, the SEC to a degree seemed to argue that the freeze was necessary because the misuse of Binance.US customer funds was possible, not because there was any clear sign it had or would occur.

But Judge Jackson seemed skeptical of this “Minority Report”-style “pre-crime” argument. Ultimately, she rejected the SEC’s request for an emergency asset freeze – an early defeat in a potentially lengthy trial. More importantly, Jackson at times seemed to feel the SEC’s lawyers were trying to mislead or confuse her.

“I'm still trying to get to the money coming from the U.S. platform customers,” she repeated, seemingly exasperated, after Scarlato’s disquisition about Merit Peak.

This series of courtroom exchanges is important to Binance’s case, and may provide an early hint that the SEC’s case is not airtight. But more importantly, it provides a window into the reasoning and mindset of the SEC’s broader crypto crackdown, which has come to include not just Binance but U.S. based Coinbase, the stablecoin Paxos and other assorted targets.

The courtroom kerfuffle parallels a broader series of indicators that the SEC has overplayed its hand with its ongoing crypto crackdown, particularly in political terms. While the agency may be on solid legal ground on the letter of securities law, the argument that their approach is more generally flawed has begun to take hold. Republican lawmakers have quickly coalesced to push back, such as in a recent House hearing when congressmen grilled a witness from Prometheum, the SEC’s poorly hand-picked “regulated crypto exchange.”

Far more significantly, though, there is chatter from sources close to Capitol Hill that a growing number of Democrats are beginning to question the SEC’s approach.

This early exchange in the Binance prosecution captures the deeper problem with the SEC’s entire agenda: it is based on a presumption of guilt and criminality, not just for one organization, but for an entire technology.

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David Z. Morris

David Z. Morris was CoinDesk's Chief Insights Columnist. He holds Bitcoin, Ethereum, and small amounts of other crypto assets.