In this recent podcast, former DOJ contract consulting expert Hui Chen says that her first draft of the February 2017 “Evaluation of Corporate Compliance Programs” policy document was dated January 21, 2016 but the Obama DOJ never publicly released the document. She also says that DOJ prosecutors don’t even read the compliance regulations they are subject to.
From my perspective, the rest of the extensive – often over-the-top and often misleading – media coverage concerning Chen leaving her contract consulting expert position at the DOJ (which she began during the Obama administration) because she has strong opinions about the Trump administration and in her words “I want to help elect candidates who stand for [values she shares], and [she] cannot do that while under contract with the Criminal Division due to Hatch Act restrictions” is a non-story.
In this June 25th post on LinkedIn, Chen states in full:
“On May 15, I informed the Fraud Section in the Criminal Division at the U.S. Department of Justice that I did not intend to renew my contract as its Compliance Counsel Expert. Last Friday, I officially ended that role.
Leaving DOJ was not an easy decision. Serving as the Fraud Section’s compliance counsel had given me not only the privilege of working with some of the most dedicated, intelligent, and innovative prosecutors in the federal government, it had also given me a platform from which I believed I could make a positive difference. Now, my reason for leaving is the same: to make a difference. For reasons articulated below, I believe the time has come when I can make a bigger difference outside of the DOJ than inside.
First, trying to hold companies to standards that our current administration is not living up to was creating a cognitive dissonance that I could not overcome. To sit across the table from companies and question how committed they were to ethics and compliance felt not only hypocritical, but very much like shuffling the deck chair on the Titanic. Even as I engaged in those questioning and evaluations, on my mind were the numerous lawsuits pending against the President of the United States for everything from violations of the Constitution to conflict of interest, the ongoing investigations of potentially treasonous conducts, and the investigators and prosecutors fired for their pursuits of principles and facts. Those are conducts I would not tolerate seeing in a company, yet I worked under an administration that engaged in exactly those conduct. I wanted no more part in it.
Second, my ability to do good at a more micro-level, by exchanging ideas with the compliance community on ways to assess the effectiveness of compliance programs, was severely limited. The management of the Criminal Division, of which the Fraud Section is a part, has persistently prohibited me from public speaking. This inability to engage was particularly frustrating after the release of the Evaluations of Corporate Compliance document, as I watched almost everyone except me being able to talk about (and often misinterpreting) my work.
Third, I have come to realize that nothing matters to me more than working to restore the notions of integrity, decency, and intellect back into our government. I yearn to be a part of that effort more directly than volunteering for and attending protests: I want to help elect candidates who stand for those values, and I cannot do that while under contract with the Criminal Division due to Hatch Act restrictions.
The time I spent in the Fraud Section has been among of the most rewarding experiences in my career, and I cannot speak more highly of the prosecutors with whom I had the pleasure of working. I will miss them dearly, and I hope and pray that they remain in the government to protect and defend our Constitution and to hold corporations accountable. As a citizen advocate, I will also fight for resources and support for them to do their jobs.
What will I do now? The mission is the same: to make a difference. It seems clear that there is much work to do not only in taking corporate ethics & compliance to the next level, but also in raising the moral consciousness of societies. To those ends, I will engage publicly through speaking, writing, and consulting, working with not only corporations interested in enhancing their ethics & compliance programs, but also with foreign and domestic government agencies to enhance their leadership in the markets. I will also consider it my personal mission to participate in efforts to hold our elected representatives accountable and to protect our environment. I believe it has never been more important for every individual to speak and act on their conscience and belief.
We have just one life to live, and the mission we choose for that life matters as much as the life itself.”
As I’ve commented on social media previously, I would hope that all lawyers could recognize the difference between lawsuits being filed and investigations being launched (for reasons only litigants and politicians can answer) vs. liability being established by an independent judiciary or fact-finder.
In any event, Chen’s LinkedIn post was gobbled up by various media sources. As highlighted below much of the media coverage was often over-the-top and misleading.
This article leads with “A top Justice Department official” – that’s an interesting title for a contract “consulting expert” retained by the DOJ.
The article further asserts: “Chen said management in her office tried to silence her from publicly speaking out against the White House.” Well, the Hatch Act was passed in 1939 and prohibits certain federal employees from engaging in certain political activities including on social media (see here to learn more).
Indeed, in Chen’s LinkedIn post she specifically references the Hatch Act as one of her reasons for leaving her contract position at the DOJ.
This CNN article states:
“And while at first glance Chen’s Twitter account might suggest she opposed some Trump policies even before she resigned, Chen insists that she hasn’t been politically active since her student days at University of California-Berkeley, when she was a youth leader for the Ronald Reagan and George H.W. Bush campaign in the 1980s.”
This previous FCPA Professor post highlighted Chen’s social media activity while at the DOJ, including certain LinkedIn posts which clearly identified her as “Compliance Counsel Expert at U.S. Department of Justice.” You can judge her social media activity for yourself.
This article says:
“A department announcement at the time said Chen would guide the fraud section of the Criminal Division in “the prosecution of business entities, including the existence and effectiveness of any compliance program that a company had in place at the time of the conduct giving rise to the prospect of criminal charges, and whether the corporation has taken meaningful remedial action.”
What the DOJ’s announcement when Chen was hired into her contract position actually says is the following:
“Among her duties as a consulting expert, Chen will provide expert guidance to Fraud Section prosecutors as they consider the enumerated factors in the United States Attorneys’ Manual concerning the prosecution of business entities, including the existence and effectiveness of any compliance program that a company had in place at the time of the conduct giving rise to the prospect of criminal charges, and whether the corporation has taken meaningful remedial action, such as the implementation of new compliance measures to detect and prevent future wrongdoing.” (emphasis added).
That’s a big difference from what the article asserts.
This article contains the click-bait headline “Top Justice Dept. Official Resigns & Drops Major Trump Bombshell On the Way Out.”
Again, “top Justice Dept. official” is an interesting title for a contract “consulting expert” retained by the DOJ.
The article also asserts that “Chen’s job was to enforce criminal laws against large corporations.” Again, Chen was a “consulting expert” retained by the DOJ, not a federal prosecutor.
The bombshell? Apparently Chen’s opinions about the Trump administration.
This article begins: “In the months after Trump’s inauguration, she began to attend protests during her lunch hour, among other subtle acts of defiance.” Again, you can judge Chen’s social media activity while at the DOJ for yourself including whether it was subtle. My own two cents is that there is nothing subtle about use of #TrumpRussiaCoverUp.
Indeed, as noted in this article:
“Chen also said that leaving the government would allow her to speak out more openly about policy issues and in favor of certain politicians without risking violating the Hatch Act. Her opposition to Trump was hardly a secret as she recently sent out several critical tweets targeting the White House and even posted photos of her participation in protests against the administration.”
Chen ended her LinkedIn post with the following: “we have just one life to live, and the mission we choose for that life matters as much as the life itself.”
It’s hard to disagree with that.