For purposes of this post, I invite you to stipulate two things.
First, FCPA Professor is a free, public website and a leading source of FCPA information that is widely read by a world-wide audience. Some might have difficulty stipulating to this, but the following is what others have said about FCPA Professor. FCPA Professor is the “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA,” FCPA Professor is a Top Law Blog for in-house counsel by Corporate Counsel, a Top 25 Business Law Blog by LexisNexis, and a top 100 Legal Blog by the American Bar Association.
Second, DOJ FCPA officials routinely speak to on-line information sources on topics relevant to the Foreign Corrupt Practices Act and certain of these outlets often put the official’s comments behind a paywall.
Against this backdrop, this post highlights the DOJ’s long refusal to engage with FCPA Professor and frequent denial of FCPA Professor interview requests. Should DOJ officials engage with FCPA Professor? In posing this question, this post, among other things, shares the comments of a former high-ranking DOJ official on the question posed.
I am occasionally asked by readers about my relationship, if any, with DOJ FCPA enforcement attorneys. My standard response is that several former DOJ officials are among the most valued readers of FCPA Professor, contributors to this site, and self-described “biggest fans” and “biggest boosters” of FCPA Professor. Yet, the relationship with current DOJ FCPA officials is non-existent.
My efforts to engage with the DOJ on FCPA topics dates back several years.
For instance, as highlighted in this prior post, in the aftermath of the November 2012 FCPA Guidance, I submitted two basic questions about the Guidance to my DOJ press office contact. No response. Three additional efforts were made. No response. As stated in the prior post, so much for that transparency thing the DOJ talked about in the FCPA Guidance press conference (i.e. the DOJ strives to be “transparent” in its FCPA enforcement.).
Fast forward to a more recent snubbing by the DOJ.
On April 5th, I dialed in to the DOJ’s press conference announcing its FCPA “Pilot Program.” When doing so, the moderator asks one to state your name and affiliation and I complied. At the first available opportunity when listeners were prompted, I requested to ask a question. However, I never got the opportunity to ask my questions – rather all of the questions chosen were from non-lawyer journalists some of which – it was perfectly clear – knew very little about the FCPA.
No big deal, a press conference can only last so long and perhaps it was just bad luck.
On May 4th, I e-mailed my DOJ press office contact as follows.
“As you know, Mr. Weissmann has participated in several interviews with online media sources in recent months, including as to the recently announced FCPA pilot program.
I respectfully invite Mr. Weissmann to do either a written Q&A for publication on FCPA Professor or be a guest on the FCPA Flash podcast to discuss various aspects of the pilot program.
Unlike other media sources to which Mr. Weissmann has granted interviews, both FCPA Professor and the FCPA Flash podcast are free public resources.
[…]
Thank you for the consideration.”
My contact at the DOJ (who I should note has always been very cordial and professional) responded “I’ll check and get back to you on this.”
A week passed without a further response.
So, I tried again.
A week passed without a further response.
So, I tried again.
Another week passed without a further response.
So, I tried again.
Another week passed and finally I received the following response from the DOJ press office. “Thanks for reaching out and sorry for the delay in getting back to you. We’ll decline the opportunity for an interview at this time. I’ll let you know if that changes.”
Denied once again by the DOJ.
And to think, the DOJ did not even know what my questions were going to be.
Fast forward to June 1st.
Like many, I had just read that Daniel Kahn was appointed the permanent DOJ FCPA Unit Chief. Perhaps, I thought, Mr. Kahn would like to engage with a leading FCPA information source that would publish for free – for all the world to see – his FCPA goals and insights.
So, once again, I e-mailed my DOJ press office contact and stated:
“I appreciate the consideration as to Mr. Weissmann.
I understand that Daniel Kahn was recently named the FCPA Unit Chief. I would like to request to interview Mr. Kahn (either a written Q&A or interview Mr. Kahn on the FCPA Flash podcast).”
Unlike the prior request, this second request was promptly denied as the press office contact stated: “We’ll decline the opportunity for an interview with Mr. Kahn at this time. Again, will let you know if that changes.”
Denied once again by the DOJ.
And again, the DOJ did not even know what my questions were going to be.
I fully understand and accept that DOJ FCPA officials (like other public officials) do not have a legal duty to speak to all people.
However, given the DOJ’s frequent reference to engagement and transparency in the FCPA space, I remain hopeful that some day DOJ FCPA officials will conclude it is worth their time to engage with a leading FCPA information source that is a free and publicly available.
If you are reading, the invitation is always open.
I recognize that my feelings towards this issue are not exactly distintered.
Thus, I reached out to certain long-time, valued FCPA Professor readers and posed the general question of whether the DOJ should be willing to engage with FCPA Professor.
A former high-ranking DOJ official responded to my question as follows:
“Clearly, they are not happy with your periodic observations that the emperor has no clothes, or that the revolving door has hit someone else in the ass, but your criticisms are usually fairly mild. […] What the government folks don’t seem very anxious to do these days is to articulate why they are taking some of their more leading edge interpretations of the [FCPA]. […] Keep up the good work.”
An FCPA practitioner responded as follows:
“[The DOJ] should grant interviews to all reputable sources which includes FCPA Professor at the top of this list. Their avoidance of a leading source of FCPA analysis, which can be critical and test assertions of DOJ, speaks volumes.”
