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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Emptywheel Twitterverse
emptywheel Twice in last 12 hours, male journalists have presumed my labor was free. If you care to donate, please go here. https://t.co/wYTyULlmr8
1mreplyretweetfavorite
emptywheel It might even say, "Wheeler suggested NGOs w/lawyers should FOIA it, but they didn't think it important." http://t.co/74JAOYCsGw
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emptywheel Besides, what story SHOULD say is, "Wheeler/Wyden pointing to OLC memo for years, privacy community hasn't noticed" http://t.co/74JAOYCsGw
6mreplyretweetfavorite
emptywheel @droosien Those who think I work for free probably don't understand the difference.
9mreplyretweetfavorite
emptywheel Apparently I'm a public fucking utility, whose services are free for all.
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emptywheel The National Journal ... borrowing from 18 month old reporting w/o credit! https://t.co/ASeXuMHw9i https://t.co/CH1fF4BTTq
16mreplyretweetfavorite
emptywheel Some POTUS candidate is not mentioned in this tweet but I'm not sure which one it is. https://t.co/bE7lCy9Yhc
24mreplyretweetfavorite
emptywheel .@dnvolz A link to this would be nice. https://t.co/ASeXuMHw9i
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emptywheel This reporting http://t.co/AomRcp9KYc first reported here, in Jan 2014: https://t.co/ASeXuMHw9i
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emptywheel NSA tells potential accounting applicants they will work w/"funding akin to that of a Fortune 500 company" https://t.co/aRBHhGfZzN
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bmaz @GreggJLevine @Nolan Excellent report. But where did you find all those people to comment??
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