As highlighted in previous posts here, here, and here it is always interesting – when individuals go into or leave government service – to analyze what they have written about before or after their government stint.
Matt Miner recently became Deputy Assistant Attorney General in the DOJ’s criminal division and this post highlights his previous writings on topics now relevant to this job ranging from the “Yates Memo,” DOJ transparency, the deficiencies of DOJ guidance as a solution, and the FCPA’s “foreign official” element.
In this 2016 white paper titled “DOJ’s New Threshold for “Cooperation” Challenges Posed by the Yates Memo and USAM Reforms,” Miner wrote in pertinent part:
“The new policy is likely to have a number of unintended consequences that will muddy what was traditionally a straightforward decision—whether to cooperate with a government investigation. By focusing so much attention on identifying culpable individuals, the new policy risks alienating personnel whose cooperation and knowledge of facts are essential to any corporate internal investigation. It may also complicate compliance. For example, if company employees become reluctant to raise their hands to report transgressions for fear of drawing too much attention to themselves, the company has a greatly reduced ability to assess whether controls or existing compliance programs work, or how to improve them.”
In “Legal Limbo – Seeking Clarity in How and When the Department of Justice Declines to Prosecute,” (2012) Miner and his co-author argue:
“This paper addresses the need for change and improvement in the process by which the Department of Justice (“DOJ” or “the Department”) notifies subjects of its investigations that matters have been closed with no prosecution and in how the Department documents publicly the generic reasons behind these decisions. We respectfully submit that the recommended changes in policy and procedure will benefit both the Department and the business community in seeking to conform business operations to the requirements of the law. After all, a recent survey showed that nearly two thirds of North American businesses had either abandoned or modified overseas deals due to legal risks and uncertainty associated with the Foreign Corrupt Practices Act (“FCPA”) or other anticorruption considerations. While the cases DOJ elects to prosecute are well known, better understanding of the parameters of its decisions to forego prosecution can add significantly to the body of guidance available to the business community. In addition, fundamental fairness dictates that decisions not to prosecute be communicated to affected parties as soon as possible.”
Under the heading, “Proposing an Annual Report on Major Declination Decisions, by Case Category,” Miner and co-author state:
“Promulgating more about the basis for these decisions would provide much needed substantive guidance to the bulk of the business community that strives to create and maintain compliance programs that, in addition to being effective, also meet government expectations. Providing businesses with a clear picture of the circumstances under which the Department has determined to take no action would provide greater predictability to corporate criminal enforcement and, by extension, better focus to corporate compliance efforts.
[…]
Businesses will also benefit by being able to more efficiently devote resources to compliance initiatives in a way that will allow them to structure compliance policies in a cost-maximizing manner. Because businesses take seriously their legal obligations, it is estimated that they spend tens of millions of dollars annually on compliance reviews and implementing effective programs. However, due to corporations’ tendencies to be risk-averse, these programs may be structured in such a way as to be overly-cautious and stifling of investment and other growth opportunities. Clear guidance from the Department could create efficiencies and greater compliance by allowing for the drafting of policies focused on the known contours of legal risk and the targeting of training and compliance efforts towards activities that present the greatest risk of criminal violations.”
For my long-standing FCPA reform proposal along the same general lines see here.
In “Reform Needed In Anti-Corruption Enforcement,” (2012) Miner and his co-author railed against various aspects of FCPA enforcement and noted that DOJ guidance was not the answer.
“The fact that the Justice Department recognizes the need for such guidance underscores the existence of blurry lines and fuzzy standards surrounding the FCPA. US businesses trying to compete successfully in the international commercial arena deserve better. Justice Department “guidance” is neither enough, nor is it properly the role of prosecutors to be definitive interpreters of ambiguities in criminal laws. Congress writes the laws and, as the US Supreme Court has firmly established, has a responsibility to set clear standards for what is permissible and what is not. It should not stand aside in deference to the Justice Department’s plan to craft guidance, especially when that guidance will have no effect in court.”
In this 2012 article (commenting on judicial interpretation of “foreign official”) Miner and his co-authors stated:
“the fact-intensive, case-by-case approach utilized by courts fails to provide certainty to companies that interact with business entities affiliated with a foreign government.”
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