Another week, another speech by Assistant Attorney General Kenneth Polite.
In the speech, Polite told an audience of white collar criminal professionals not to” fall victim to recency bias” (even though of course the DOJ facilitates it) and served up a word salad of ambiguous terms and concepts.
I have been reading speeches by DOJ enforcement officials for approximately 15 years and Polite’s speech is one of the worst I have encountered as it is mostly just a play on words.
Last week, Kenneth Polite (DOJ Assistant Attorney General -Criminal Division) gave this speech in which he called prosecutors “community problem-solvers” and announced (yet additional) changes to DOJ policy.
Specifically, Polite announced “significant changes” to how the DOJ “consider[s] a corporation’s approach to the use of personal devices as well as various communications platforms and messaging applications, including those offering ephemeral messaging.”
In addition, Polite described how the DOJ has “updated its policies concerning corporate compensation systems” and issued a “revised memorandum on the selection of monitors in Criminal Division matters” including that “any submission of a monitor candidate by the company and selection of a monitor candidate by the Criminal Division should be made in keeping with the department’s commitment to diversity, equity, and inclusion.”
As highlighted in prior posts here and here, in January the DOJ Criminal Division released a Corporate Enforcement and Voluntary Self-Disclosure Policy which “applies to all FCPA cases nationwide and all other corporate criminal matters handled by the Criminal Division.”
As discussed below, the DOJ’s expectation regarding voluntary disclosure is absurd as well as internally inconsistent.
As to the later point, query whether the DOJ has individuals capable of proof-reading to ensure that a policy document is internally consistent.
I have been reading speeches by Department of Justice enforcement officials on white collar crime, compliance, and related issues for approximately 15 years.
I take many of these speeches with a grain of salt because more often than not, the substance of the speech have been articulated before and because I am not seeking to actively market DOJ policy as a way to expand my services (as so many law firms and others do).
Many of these speeches have the look and feel on an “infomercial” in which a DOJ official is trying to market and sell its latest widget.
So it was with this recent speech by Deputy Assistant Attorney General Lisa Miller Delivers in which she stated that the “carrots we offer have never been juicer.”
Ronald Reagan once said “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”
I was reminded of this quote upon reading Assistant Attorney General Kenneth Polite’s recent speech announcing the “first significant changes to the Criminal Division’s CEP [Corporate Enforcement Policy] since 2017.” (See here for a prior post analyzing the 2017 CEP).
Per Polite’s language, I guess that means that the revisions to the CEP released in early 2019 (see here) as well as late 2019 (see here) were not “significant.”
Even though the DOJ has been actively encouraging voluntary disclosure for approximately 15-20 years, Polite stated:
