The Department of Justice is looking for a trial attorney [1] in its Foreign Corrupt Practices Act unit.
Per the job posting, one of the duties of the attorney is to advise and instruct Assistant U.S. attorneys “on complicated questions of law and Departmental policy with respect to the FCPA.”
“Complicated questions of law.”
It is just four words in a job posting, but it is a notable four words and an important acknowledgment by the DOJ that the Foreign Corrupt Practices Act is not a simple, straight forward statute as some (including the DOJ) often portray it to be.
What else is a trial attorney in the DOJ’s FCPA Unit expected to do?
As stated in the job posting:
- “In collaboration with unit managers, carries out and fosters effective investigations and prosecutions, including advising on strategy and legal complexities, and developing litigation priorities, policy, and legislative recommendations. Recommends charging decisions and proposes dispositions with regard to assigned cases.
- Partners with and leads Assistant U.S. Attorneys and attorneys in other federal law enforcement agencies in the development, management and trial of complex white collar and corporate investigations and prosecutions. Engages in all phases of investigation and litigation, including, but not limited to, using the grand jury, using federal investigative tools and handling electronic evidence, advising federal law enforcement agents, using international evidence collection tools, preparing appropriate pleadings, appearing for hearings at all phases of criminal proceedings, and litigating motions and trials before U.S. District Courts across the country.
- Collaborates with foreign prosecutors and foreign law enforcement officers on international investigations.
- Evaluates reports of potential violations of the FCPA and other criminal statutes from both internal and outside sources to determine whether investigation is warranted.
- Advises and instructs Assistant U.S. Attorneys on complicated questions of law and Departmental policy with respect to the FCPA.
- Represents the United States in direct negotiations and discussions with corporate counsel and high-level officials. Participates in discussions with opposing counsel for defendants and in the formulation of settlements often having far-reaching legal consequences.
- Advises and consults with the Assistant Attorney General, Deputy Assistant Attorney General, Section Chief, et al., reporting on the status of all cases and matters related to criminal remedies.
- Serves as an expert, providing advice and policy determinations in matters involving the planning, discussion and coordination of the activities related to the investigation and litigation of FCPA cases. Oversees the preparation and litigation assignments of lower graded attorneys, paralegals, and clerical personnel.”
Questions abound from this job description.
- What are the DOJ’s FCPA litigation priorities?
- What are the DOJ’s legislative recommendations?
- How does the DOJ evaluate “reports of potential violations of the FCPA … to determine whether investigation is warranted?” Would those subject to the FCPA be better served if the DOJ publicly released (in an appropriate format) reports of potential violations of the FCPA that did not lead to an investigation or enforcement action. After all, the DOJ has previously done just this [2].
- If FCPA settlements often have “far-reaching legal consequences,” should the DOJ be more transparent and should settlements be subjected to meaningful judicial scrutiny?
[3]