One reason I have argued, as a matter of policy (see here and here for instance), for greater post-government employment restrictions on DOJ Foreign Corrupt Practices Act enforcement attorneys with supervisory and discretionary authority is due to the unique policies which guide DOJ enforcement action.
This 2013 post highlighted the DOJ’s unique centralized FCPA enforcement policy. The post included statements from: (i) the then DOJ Deputy Chief of Staff for the Criminal Division noting that the DOJ’s centralized enforcement policy “distinguishes FCPA prosecutions from most other kinds of federal criminal cases; and (2) the former DOJ Assistant Chief for FCPA enforcement who rightly observed that “the FCPA has been recognized and treated as different by the U.S. government” in that the FCPA “is one of just a few, select statutes to be prosecuted centrally from one DOJ office.”
The practical realities of the DOJ’s unique centralized FCPA enforcement policy are best highlighted by the new law firm biography of the DOJ’s recently departed FCPA Unit Chief. In pertinent part, the biography states:
“[Former Unit Chief] most recently served as a Deputy Chief in the Fraud Section in the Criminal Division of the U.S. Department of Justice, where he led the Foreign Corrupt Practices Act (FCPA) Unit and was in charge of all of the DOJ’s FCPA investigations, prosecutions and resolutions in the United States. Internationally recognized for his leading role in developing and implementing the government’s FCPA enforcement strategy, he was widely credited with developing the current enforcement regime and recruiting and leading a talented team of prosecutors who have brought some of the most important FCPA cases in the statute’s 36-year history.
As the head of the FCPA Unit, [former Unit Chief] oversaw countless voluntary disclosures, decided which matters would be declined, administered DOJ’s FCPA Opinion Release Procedures and was responsible for interviewing, selecting and reviewing the work of seventeen independent corporate monitors.
While in the Fraud Section, [former Unit Chief] led the development of a deferred prosecution agreement (DPA) template for FCPA cases, which formed the basis for a DPA template later adopted for use by the entire Criminal Division, and he also led the effort to update and restructure the enhanced compliance components of DPAs in FCPA cases.”
The DOJ’s unique centralized FCPA enforcement policy warrants another special policy.
And that is, a prohibition on DOJ (and SEC) FCPA enforcement attorneys with supervisory and discretionary authority from providing FCPA defense or compliance services for five years upon leaving government service.