After years of being mocked and ridiculed for failing to prosecute even one of the major Wall Street criminals that brought the global economy to its knees in 2008, the Justice Department now claims it will finally start enforcing the law on cases that involve criminal wrongdoing by corporate executives.
A memo authored September 9 by Deputy Attorney General Sally Yates lays out new rules for the DOJ regarding the treatment of corporate executives who commit crimes. According to the memo, the Department of Justice will no longer give the individuals in corporate leadership a pass when prosecuting companies for wrongdoing and will “fully leverage its resources to identify culpable individuals at all levels in corporate cases.”
The new rules, if followed, would represent an extreme shift in how DOJ has traditionally operated when it comes to malfeasance by large corporations. Typically, the company can pay a fine or even plead guilty to a crime with none of the individuals who actually perpetrated the crime facing any legal sanction or consequences.
The six rules listed in Yates’ memo would curtail that practice:
- To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.
- Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.
- Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.
- Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.
- Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and delineations as to individuals in such cases must be memorialized.
- Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individuals to pay.
Yates claims the memo and strategy were the result of recommendations from a working group on corporate investigations comprised of senior attorneys from the DOJ. Apparently, the embarrassing conduct of the last few years led to some embarrassment.
But the memo does not address conflicts of interests within the DOJ when it comes to corporate prosecutions. During the post-2008 crash years, the Department of Justice was led by two officials who were totally conflicted when it came to mortgage crisis — Attorney General Eric Holder and Criminal Division Head Lanny Breuer.
As noted by Reuters, previous to taking their high positions within the Justice Department, both Holder and Breuer had worked at the firm Covington & Burling whose clients at the time of their employment included Bank of America, Citigroup, JP Morgan Chase and Wells Fargo & Co.
The firm itself was knee deep in what would become known as the fraudclosure crisis, even offering a legal opinion that helped create the Mortgage Electronic Registration Systems (MERS) on behalf of Fannie Mae, Freddie Mac, Bank of America, JP Morgan Chase. MERS would become ground zero for fraud by the banks and mortgage companies in the aftermath of the crisis.
After finishing his “public service” as head of the Criminal Division at the DOJ, Lanny Breuer returned to Covington & Burling and will make $4 million as vice chairman. Holder returned to Covington & Burling not long after Breuer, retaking a lucrative multi-million dollar position that was kept empty for him while he served as Attorney General.
So while it is nice that DOJ has formally put down rules for its personnel to prosecute rich and powerful people that break the law, there probably also needs to be some rules on who is allowed to serve in the positions empowered to do so.