Is New DOJ Policy to Target Execs a Sham?

WASHINGTON — The Justice Department's announcement that it would target individual executives at banks and other companies that are being investigated for wrongdoing has sparked a debate about whether the move is truly substantive or instead just designed to boost the agency's public image.

Critics said the policy, detailed in a memo and speech by a top Justice official, was just an attempt by the DOJ to score political points for new Attorney General Loretta Lynch, without having much impact on how Justice conducts its investigations.

"It's a great headline but it's hard to see how this really changes much on the ground," said Jaret Seiberg, a policy analyst with Guggenheim Partners. "The government has prosecuted traders and other people who actually engaged in illegal activity. This pronouncement doesn't change the problem, which is that there typically isn't any evidence that senior executives were responsible or aware of the criminal activity. If that evidence existed, the government would have acted — regardless of this new policy memo."

Dennis Kelleher, the president of advocacy group Better Markets, was similarly dubious.

"Frankly, I'm so skeptical that I'm concerned that this speech is just a little PR before they announce their next, latest bogus settlement with some big Wall Street bank," he said. "It's a hopeful sign for the new attorney general, but she needs to take serious action to prove that her words are not as empty as her predecessor."

But H. Rodgin Cohen, senior chairman at Sullivan & Cromwell and one of the country's most prominent bank lawyers, said Lynch "would not be saying something for show… She means it."

"It may be that with further effort, nothing will come of it," Cohen said. "But do I think there will be a renewed effort to determine if individuals are culpable? The answer is yes."

Larry Krantz, a former federal prosecutor who litigates white-collar criminal, regulatory and other matters, agreed.

"There actually is some meat behind a change in policy like this," said Krantz, founding member and partner of Krantz & Berman LLP. "A policy change like this affects individuals' decision-making in pending investigations. When line prosecutors and their supervisors are analyzing what to do in a certain investigation in the future, it's very possible they will be influenced by a change in policy like this and that it may shape decision-making internally in the U.S. Attorney offices."

But some Justice Department officials feel the criticism is inaccurate.

"Saying that somehow or another these are not meaningful changes is erroneous," said one DOJ official, who spoke on the condition of anonymity, pointing to "concrete" reforms outlined in the new policy. "That doesn't mean our work is done… but I do think this is a significant change."

At issue is a memo released Wednesday by Deputy Attorney General Sally Yates in which she says that companies wanting to be seen as cooperating — something that reduces their penalties in any settlement — must provide "all relevant facts about individuals" involved in misconduct.

"Companies cannot pick and choose what facts to disclose," Yates wrote. "To be eligible for any credit for cooperation, the company must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the department all facts relating to that misconduct."

The memo also says all civil and criminal investigations should "focus on individuals from the inception of the investigation" and that absent extreme circumstances "no corporate resolution will provide protection from criminal or civil liability for any individuals."

In a speech on Thursday, Yates added that this "does not mean that DOJ will sit back and wait for the company to deliver the information about individual wrongdoers and then merely accept what companies provide. To the contrary, department attorneys will be actively investigating individuals at every step of the process — before, during and after any corporate cooperation."

The new guidelines come in response to widespread criticism of the Justice Department for failing to prosecute individuals in the aftermath of the financial crisis. Justice has periodically vowed to do more to target executives, most recently by forming a task force earlier this year designed specifically to go after individuals culpable for causing the crisis. But a deadline for action expired in May without the Justice Department taking action moving forward on cases, at least publicly.

"It's the same type of theatrics," said Seiberg. "At the end of the day, Justice always wants to prosecute individuals. The notion that it didn't want to go after senior executives was preposterous. The problem is you can't go to court without evidence. A new policy pronouncement isn't going to magically produce evidence."

Mike Bresnick, a former DOJ prosecutor who worked with Yates, said it raises questions about what Justice was doing in the past.

"Is it DOJ's position that they weren't looking at individuals previously?" asked Bresnick, who now chairs the financial services investigation and enforcement practice at Venable.

People on both sides of the debate said the exact meaning of the memo won't be clear until the Justice Department begins taking actions under it.

The memo effectively implies that some companies knowingly protect individuals which they know have committed wrongdoing. But Cohen said that isn't the case in his experience.

"I have never seen a banking institution protect an individual where the institution believed that the individual knowingly violated the law," he said.

Cohen worried that the policy could criminalize what was previously considered civil wrongdoing, particularly in instances where an executive failed to catch wrongdoing done by subordinates.

Bresnick feared the memo will put pressure on prosecutors to bring cases against individuals even when the evidence isn't strong enough to support it.

"Now prosecutors are going to be rejiggering what they think is reasonable doubt," he said. "Before it wasn't enough to bring a case and now they might say that it is when the evidence hasn't changed."

The ultimate question is whether the Justice Department would have pursued individuals if the new policy had been in place immediately after the financial crisis.

"With the organizations that I worked with, it might have led to one or two" prosecutions, Cohen said. "I do suspect that for the worst malefactors, it might have been more."

"But these were not CEOs," he added. "This was somebody really low down."

Still, if the Justice Department uses the memo just to pursue low-level employees, it won't have gone far enough, said Art Wilmarth, a law professor at George Washington University.

"Until you see charges brought — at least civil charges brought against top individuals — it's very hard to conclude that something significant has changed," he said.