We let the cartels investigate themselves

A Fresh Air interview with a Pro Publica journalist that told me a whole lot of things I didn’t know, all of them bad.

This is FRESH AIR. I’m Terry Gross. In an era of mass incarceration, why was only one top banker convicted after the financial collapse of 2008? My guest Jesse Eisinger tries to answer that question in his new book.

It’s titled The Chickenshit Club, which Gross couldn’t say on the air because while we fail to prosecute bankers who ruin the lives of millions of people, we’re very strict about saying “shit” on the radio.

The source is, oddly enough, Jim Comey.

But it actually comes from a speech. Now, you may know and your listeners may know Jim Comey from being recently fired by Donald Trump as FBI director. Before that, back in 2002, he became the U.S. attorney for the Southern District of New York, a role later held by Preet Bharara…

GROSS: Also fired by President Trump.

EISINGER: Also fired – the twofer there. And Comey comes in, and he’s replacing a legend in the office, Mary Jo White, who served as Obama’s SEC head. And he gathered all the hotshots from the Southern District. And the Southern District is the premier office of the Department of Justice. They are 94 offices around the country, U.S. attorneys from all over in every state. And the Department of Justice and – main justice is one of the prestigious units and then the prestige unit for corporate investigations and Wall Street and financial investigations is the Southern District.

And these guys really are the hottest shots, the best of the best of the best. And you know, if you have any doubts about them, you just have to ask them, and they will tell you how good they are. And they think of themselves as the best trial lawyers. And Comey gathers them all together and asks them, how many of you have never lost a case, never had an acquittal or a hung jury? And a bunch of hands shoot up. They’re very proud of their undefeated records. And he says, well, me and my buddies have a name for you guys. You guys are the chicken-[shit] club. And the hands go back down very fast.

And what was he trying to say there? Well, he was trying to say – and he goes on to explain that the prosecutor’s job – federal prosecutor’s job is not to win – like, win at all costs and preserve an undefeated record. What they’re doing is something more important. They are seeking justice. And to seek justice and ensure justice in this country, you have to take on ambitious cases. You have to raise your sights and look at the most significant wrongdoers in society and focus on them. And you can’t be afraid of losing and avoid those difficult cases if justice calls for taking on the powerful interests.

How’s that for depressing? If Comey’s right they were avoiding the important cases because they were more interested in never losing. Oy.

GROSS: You write about how the Enron case was a turning point in how the Justice Department prosecutes these kinds of financial crimes, corporate crimes. So the Enron case seems to have been very successful. I mean executives of Enron went to jail. The accounting company that handled Enron was found guilty of crimes as well. Arthur Andersen is the name of the company. It was one of the big five accounting companies. So sum up for us some of the prosecutorial successes in the Enron case without getting too deep into the details of the case itself.

EISINGER: Sure. Well, the Enron case is the high watermark. And what I argue is that, you know, there’s never been a golden age where the rich and powerful who did something wrong really had to fear for their safety and were guaranteed to go to prison, but there have been silver ages. And the last high watermark was in the post-Nasdaq bubble-bursting era where we – the government prosecuted a number of companies and the individuals at all these companies, including Adelphia and WorldCom and Global Crossing and Tyco and Enron. Enron was the marquee fraud of that era 15 years ago.

And what the government did was something very different from what it did in the financial crisis. They assigned a task force. They brought individual prosecutors from around the country and FBI agents and assigned them just to the task force to prosecute this company. And if you remember, Enron was very close to the Bush administration, and yet the – his Department of Justice, to its credit, prosecuted without fear or favor. And they worked for years.

They – so one thing they did was they dedicated the resources. Two, they were very patient. Three, they worked up the chain. So they flipped low-level individuals. And that’s the way you have to prosecute complex corporate crime. Treat it something like a mob investigation where you flip the soldiers to get to the capos to get to the capo di tutt’i capi. And here you have to work painstakingly by turning lower-level individuals so that you can put them on the stand and they can say, I did something wrong, and so did my boss, and he’s sitting right there. And that’s the way they prosecuted the top two executives, Jeff Skilling and Ken Lay, successfully. They won at trial.

But now, he thinks, they’ve lost the will to do that kind of thing.

GROSS: And that backlash was also aimed at the victory the Justice Department won against the accounting company Arthur Andersen, which was Enron’s accounting company and was in on the fraud. So what were the convictions like…

EISINGER: Exactly.

GROSS: …At Arthur Andersen?

EISINGER: Yes. So this is – the undoing of the Department of Justice starts with the backlash against Arthur Andersen. Arthur Andersen was, as you say, Enron’s accounting firm and literally destroyed tons and tons of documents related to the Enron audit right before it was subpoenaed. But Enron had been subpoenaed. And the government was rightly outraged by this and started to investigate.

And Andersen’s activities were obvious. It looked very much like obstruction of justice. And they refuse to admit that they’d done anything wrong in the Enron case. And the government debated it and tried to settle with them and couldn’t because they demanded, quite rightly in my view, an admission of wrongdoing. And so the government felt like it had no choice but to bring Andersen, the firm, to trial. One executive pleaded guilty, and the government won.

But in the ensuing years, something remarkable happened – that it turned – the debate changed from a debate about accounting fraud and a recidivist and corrupt organization – which I think Arthur Andersen was – to a debate about the collateral consequences of indicting a large company.

In this case, many tens of thousands of workers were put out of work, which is clearly a tragedy and unfortunate. Unfortunately, my argument is sometimes companies need to go out of business if they are corrupt. But what happens is the Department of Justice learns the lesson that this was a bad prosecution, an overly aggressive prosecution, a cowboy prosecution. And they internalized the notion that they should never prosecute a large company again, which really ends up undermining their powers when it comes to corporate legal enforcement.

Esinger argues there’s been a shift to an unofficial de facto policy of  backing away from trying to indict a corporation.

EISINGER: And if you’re doing that, you only have settlement options. And what happens gradually is that settling becomes so attractive and so easy for prosecutors. They do over 400 of these kind of settlements called deferred prosecution agreements, DPAs, over the most recent decade compared to an insignificant number in the previous 10 years. And that becomes so attractive that they – two things happen. One is they don’t really want to indict companies. And two, they lose the focus on prosecuting individual executives. And they end up losing, I argue, the skill set to do it.

Gross asks for an example.

EISINGER: Well, prosecutors used to be able to say to companies, if you want to claim that you’re cooperating with our investigations, then you have to waive your privilege and let us see all the evidence of wrongdoing at the company. And today, after the…

GROSS: Waive the attorney-client privilege.

EISINGER: Waive attorney-client privilege, exactly. They said they sort of enveloped the – themselves and protected themselves with attorney-client privilege. And companies used to have to waive that if they wanted to say that they were cooperating with government investigations. And after a big lobbying effort from the white-collar bar and corporations that fought – was fought over years behind the scenes in Washington, now the Department of Justice prosecutors can’t do that anymore. And that really deprived them of a very useful tool.

GROSS: Give us an example of the kind of information the Justice Department could get when it required a company or a bank to waive its attorney-client privilege.

EISINGER: They could get the full interviews that the company was having with executives about whether – when they were investigating wrongdoing. Now the lawyers can give summaries of them, little notes here and there. And it turns out that they’re going to inevitably kind of elide key details that might be very useful. And it gets even worse than that. Sometimes they don’t even tell the prosecutors who the names are of the people who are involved in the potential wrongdoing. It’s all sorts of information that’s vital to really understanding what really happened in one of these investigations.

Gross asks, but isn’t attorney-client privilege kind of sacred?

EISINGER: Well, it’s not in the Constitution. It is a common law practice that has grown up over hundreds of years – predates the United States. It is very important. And it’s a protection that each individual should have, and even corporations should have it in some point. But the Department of Justice needs to be less dependent on companies’ own law firms for these investigations so that if they’re not going to get access to privilege material from the companies cooperating, then they have to decide, well, we’re not going to be dependent on companies’ cooperation to conduct these investigations; we have to do it some other way.

GROSS: So you’re referring to instances where the corporation has hired a law firm to investigate itself when the corporation says, wrongdoing happened here; we’re going to get to the bottom of it. And they hire a law firm, and the law firm investigates. Is that what you’re talking about?

EISINGER: Yes. The dirty secret of American corporate law enforcement is that we have outsourced and privatized corporate investigations to the corporations themselves. We let the cartels investigate themselves about whether they’ve dealt drugs. And that of course is a deeply pernicious development and, I think, is a corrupting one.

Thunk. That’s one of the things I didn’t know. It certainly is a dirty secret. It seems right up there with Citizens United as a symptom of corporations seizing power from the rest of us.

GROSS: So when you’re talking about waiving attorney-client privilege, you’re referring to when a corporation has hired a law firm to investigate itself and then won’t tell the Justice Department what that law firm found.

EISINGER: Yeah. Often this is what happens – is that there’s some kind of scandal or some kind of investigation into a company like GM or Volkswagen or Uber or the major banks – JP Morgan, Chase. They’ll hire a major law firm like Debevoise and Plimpton or WilmerHale, these powerful law firms in New York and D.C. And those law firms assign dozens and dozens of associates and partners to comb through the company to figure out whether there was any wrongdoing. And then they deliver those results to the prosecutors. And the prosecutors flip through it and try to see if there’s any wrongdoing there.

Now, what happens is those investigations are studiously incurious about wrongdoing perpetrated by the CEO or chairman, as you can imagine. They – these law firms – sometimes they do very tough jobs investigating, but often they don’t because they’re not only worried about annoying their client, but they’re worried about their future revenue streams. If they do a tough job this once, other companies won’t hire them.

And that’s the important thing – law firms making lots of money, not corporations kept from robbing us blind or destroying the Gulf of Mexico or anything like that.

GROSS: So you think that having, say, investment banks settle for large fines is not an adequate punishment. Why not?

EISINGER: I don’t think it deters crime. And I think it undermines the sense of equity and justice in this country. I think people see companies paying big checks and the individuals getting away with it. And I think it stokes an enormous amount of anger with the system and undermines the legitimacy of our justice system, especially because we have a justice system which excessively punishes the poor and people of color while allowing top corporate executives, powerful people, off. We talk about inequality in this country, but I argue that the greatest perquisite of being powerful and wealthy in this country is the ability to commit crimes with impunity.

Just a tad.

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