Lanny Breuer Admits That Economists Have Convinced Him Not to Indict Corporations

I’ve become increasingly convinced that DOJ’s head of Criminal Division, Lanny Breuer is the rotting cancer at the heart of a thoroughly discredited DOJ. Which is why I’m not surprised to see this speech he gave at the NYC Bar Association selling the “benefits” of Deferred Prosecution Agreements.  (h/t Main Justice) He spends a lot of his speech claiming DPAs result in accountability.

And, over the last decade, DPAs have become a mainstay of white collar criminal law enforcement.

The result has been, unequivocally, far greater accountability for corporate wrongdoing – and a sea change in corporate compliance efforts. Companies now know that avoiding the disaster scenario of an indictment does not mean an escape from accountability. They know that they will be answerable even for conduct that in years past would have resulted in a declination. Companies also realize that if they want to avoid pleading guilty, or to convince us to forego bringing a case altogether, they must prove to us that they are serious about compliance. Our prosecutors are sophisticated. They know the difference between a real compliance program and a make-believe one. They know the difference between actual cooperation with a government investigation and make-believe cooperation. And they know the difference between a rogue employee and a rotten corporation.

[snip]

One of the reasons why deferred prosecution agreements are such a powerful tool is that, in many ways, a DPA has the same punitive, deterrent, and rehabilitative effect as a guilty plea:  when a company enters into a DPA with the government, or an NPA for that matter, it almost always must acknowledge wrongdoing, agree to cooperate with the government’s investigation, pay a fine, agree to improve its compliance program, and agree to face prosecution if it fails to satisfy the terms of the agreement.  All of these components of DPAs are critical for accountability.

But the real tell is when he confesses that he “sometimes–though … not always” let corporations off because a CEO or an economist scared him with threats of global markets failing if he held a corporation accountable by indicting it.

To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly.  We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client.  In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effectsSometimes – though, let me stress, not always – these presentations are compelling. [my emphasis]

None of this is surprising, of course. It has long been clear that Breuer’s Criminal Division often bows to the scare tactics of Breuer’s once and future client base. (In his speech, he boasts about how well DPAs and NPAs have worked with Morgan Stanley and Barclays, respectively.)

It’s just so embarrassing that he went out in public and made this pathetic attempt to claim it all amounts to accountability.

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24 Responses to Lanny Breuer Admits That Economists Have Convinced Him Not to Indict Corporations

Emptywheel Twitterverse
bmaz @WerlySportsLaw No, it is absolute horsemanure. Why should "major" programs be allowed to go squat in other territory? This is insane.
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bmaz Seems legit! And Roger Goodell's mother appearing at the end was a nice touch! https://t.co/bhZdLpAX4C
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JimWhiteGNV RT @JulieDiCaro: They have a statue of Ray Lewis outside their stadium. https://t.co/PQ3w7BacW2
24mreplyretweetfavorite
bmaz It is all hard, oh so hard, to tell if our NFL love has been in vain https://t.co/QuA7EwWpKh
48mreplyretweetfavorite
bmaz Hey maybe the @NFL didn't know about Ideal Gas Law+other serial infirmities in their case+Sent Clement in uninformed https://t.co/JZpSKjLY2L
50mreplyretweetfavorite
bmaz But, hey, being "The Worldwide Leader" means can carry @NFL's water and never be sorry https://t.co/uFtqCGfc0L
53mreplyretweetfavorite
bmaz And then had their lead reporter, @mortreport delete his tweet and refuse to ever apologize for his @NFL stenography https://t.co/JZpSKjLY2L
55mreplyretweetfavorite
bmaz For anybody watching @NFL draft, just know this is same dishonest+unrepentant news org that manufactured #Deflategate out of thin air.
57mreplyretweetfavorite
bmaz The beyond insane and ungodly idiotic hype that @ESPN gives to collegiate, and now even high school. sports is pukeworthy. #StopYouAssholes
1hreplyretweetfavorite
JimWhiteGNV RT @banditref: Urban Meyer says every player is the best he's ever coached, then he leaves money on the dresser, puts on his pants, and wal…
1hreplyretweetfavorite
bmaz And, tonight, is yet another craven symbiosis of money grubbing jackholery between @NFL + @ESPN #AlwaysCrapOverTruth https://t.co/nozTp5OP50
1hreplyretweetfavorite
bmaz Extremely malignant factors like @mortreport and @ESPN created, out of whole cloth,the malignant idiocy of #Deflategate. #Sickening
1hreplyretweetfavorite
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