After years of letting Wall Street greed run rampant, the U.S. Department of Justice is now claiming that it will finally crack down on corporate criminals.
But observers and watchdog organizations say that a set of new guidelines, authored by Deputy Attorney General Sally Yates on Wednesday, come “way too late” and do not, in themselves, constitute bold action.
“The memo amounts to a striking admission that the DOJ’s policy on Wall Street corporate crime has been completely ineffective,” said Robert Weissman, president of watchdog group Public Citizen, in a statement released Thursday. “The real test going forward will be if the agency can put this policy into action and enforce it aggressively.”
The memo stipulates that the following guidelines “will apply to all future investigations of corporate wrongdoing” as well as “matters pending”:
- 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.
At a press conference Thursday, Yates declared: “The rules have just changed. Effective today, if a company wants any consideration for its voluntary disclosure or cooperation, it must give up the individuals, no matter where they sit within the company.”
New York Times reporters Matt Apuzzo and Ben Protess reported the guidelines Wednesday night as the “first major policy announcement by Attorney General Loretta E. Lynch since she took office in April.”
But buried within the Times article are key qualifiers. “Because the memo lays out guidelines, not laws, its effect will be determined largely by how Justice Department officials interpret it,” Apuzzo and Protess wrote. “And several of the points in the memo merely codify policy that is already in place.”
“It is also unknown whether the rules will encourage companies to turn in their executives,” the reporters added.
Dean Baker, the co-director of the Center for Economic and Policy Research, cautioned in a blog post on Thursday that journalists should not be too quick to buy into the DOJ’s claims. “Sorry folks, but sometimes politicians and political figures say things for public consumption, not because they actually reflect reality,” wrote Baker. “This is why reporters should tell us what these figures say, not to assume that what they say reflects the truth.”
Weissman echoed this sentiment, noting that it is too soon to determine what impact the guidelines will have. “For effective deterrence and accountability, it is vital that the department prosecute both corporations and responsible individuals,” he said. “The new memo must not become a vehicle by which companies can offer up lower-level managers and ensure an escape from criminal liability for top executives and the companies themselves.”
One thing that is clear, Weissman argued, is that the policies come “way too late.”
“It would have been nice if the Department of Justice had evinced any interest in prosecuting corporate executive wrongdoers after the 2008 financial crash and ensuing Great Recession (and even better if the agency had prosecuted wrongdoing before it led to the crash),” said Weissman.