If the Department of Justice was a business organization and subject to the same legal principles its uses to prosecute business organizations, it would constantly be under scrutiny and the subject of numerous enforcement actions.
As highlighted in this recent report by the Project on Government Oversight (“POGO”) titled “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards:”
“An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.”
“From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions … In the majority of the matters – more than 400 – OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.”
As highlighted in the POGO report:
“[T]he Justice Department does not make public the names of attorneys who acted improperly …. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.”
Although not specifically discussed in the POGO report, Foreign Corrupt Practices Act enforcement actions have seen instances of prosecutorial misconduct. For instance, as highlighted in this post, in the DOJ’s enforcement action against Lindsey Manufacturing and two of its executives, the judge in dismissing the case, stated that the instances of misconduct were “so varied, and occurr[ed] over so lengthy a period … that they add up to an unusual and extreme picture of a prosecution gone badly awry.” In the failed Africa Sting case, the judge in dismissing the cases, stated that certain of the DOJ’s conduct had “no place in a federal courtroom.” (See here).
The DOJ’s Principles of Prosecution of Business Organizations state, among the factors prosecutors should consider in deciding whether – and how – to charge a business organization as follows.
“Among the factors prosecutors should consider and weigh are whether the corporation appropriately disciplined wrongdoers, once those employees are identified by the corporation as culpable for the misconduct.”
Against this backdrop, the POGO report states that several “examples of misconduct” within the DOJ often result in lenient sanctions such as a 10, 14 or 30 day suspensions.
Obviously, the DOJ is not a business organization.
However, as a matter of principle should not the prosecutor / regulator and the prosecuted / regulated be held to the same general standards?
For instance, assume two organizations – A &B.
Organization A has tens of thousands of employees spread across the globe. Its employees are trained on the legal rules and requirements relevant to their jobs. Yet, despite the organization’s best training efforts and its committment to compliance and ethics, certain employees fail to conduct themselves according to the training and thus violate the law. Organization A, as an entity will be held accountable, the organization will be forced – based on the isolated employee’s conduct – to conduct a thorough review of its entire operations, and will likely have a compliance monitor imposed on it.
Organization B, compared to Organization A, is substantially smaller and the vast majority of its employees are located in the United States. Its employees are trained on the legal rules and requirements relevant to their jobs. Yet, despite the organization’s best training efforts and its committment to compliance and ethics, certain employees fail to conduct themselves according to the training and thus violate the law or relevant rules. Organization B, as an entity will not be held accountable, the organization will not be forced – based on the isolated employee’s conduct – to conduct a thorough review of its entire operations, and will not have a compliance monitor imposed on it.
Organization A of course is a typical business organization doing business in the global marketplace.
Organization B of course is the DOJ.
Why should there be a difference?
As noted in the POGO report, “high-level DOJ officials have said in the past that given the context – tens of thousands of its attorneys working on tens of thousands of cases each year – the amount of misconduct is small.” (See here).
Could not the same be said of a typical multinational business organization doing business in the global marketplace?
For previous posts touching upon the same topics as above, see “If the SEC Was An Issuer …” (nothing that if the SEC was an issuer, it would have some serious FCPA books and records and internal control issues to deal with as a result of a GAO report) and “Should There be A Difference.”