The DOJ’s Expectation Regarding Voluntary Disclosure Is Absurd And Internally Inconsistent
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.
“The Carrots We Offer Have Never Been Juicier”
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.”
“I’m From The Government, And I’m Here To Help”
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:
Measured By This Goal, DOJ Policy Has Failed
Imagine a government enforcement agency unveiling an enforcement policy that had X as a stated goal and then nearly six years later, X occurred only 7% of the time.
The answer would seem clear: the goal of the enforcement policy failed.
As highlighted below, in releasing the 2016 FCPA Pilot Program and thereafter in 2017 in releasing the FCPA Corporate Enforcement Policy (CEP), the DOJ stated that a “main goal” was to encourage voluntary disclosures to permit prosecution of individuals. Yet, nearly six years later there have been FCPA prosecutions of individuals in only 7% of cases the DOJ has self-identified as being resolved pursuant to / or consistent with the Pilot Program or the CEP.
FCPA Flash Podcast – A Conversation With Former DOJ Deputy Assistant Attorney General Matthew Miner On DOJ Policy During The COVID-19 Crisis
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash podcast episode is a conversation with Matthew Miner (Morgan Lewis – who recently served as DOJ Deputy Assistant Attorney General in the Criminal Division). While at the DOJ, Miner helped to develop various DOJ policy documents including its “inability to pay” guidance (see here), the FCPA Corporate Enforcement Policy (see here), and the Evaluation of Corporate Compliance Programs (see here). During the podcast, Miner discusses how these various DOJ policies are likely to be interpreted during the COVID-19 crisis.