The doctrine under former AG Eric Holder (documented in Matt Taibbi's brilliant The Divide) was to allow executives to pay fines that were less than the profits from their crimes.
Holder said that he was protecting the innocent employees, suppliers, customers and shareholders of these criminal enterprises by allowing companies to continue operating and financing the US government by taxing some of the wealth generated by their crimes. Curiously, he never used his prosecutorial power to bargain for the breakup of too-big-to-jail enterprises into smaller ones whose C-suite could be led out of their offices in handcuffs without creating systemic risk.
Eric Holder is back in private practice today at Covington & Burling, the corporate law-firm whose clients avoided prison thanks to his strategy of using fines instead of jail for high-ranking corporate criminals.
The new rules, issued in a memo to federal prosecutors nationwide, are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.
“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”
Justice Department Sets Sights on Wall Street Executives [Matt Apuzzo and Ben Protess/NYT]
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