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On The Concentration Of Power …


The DOJ often speaks of the rule of law in connection with Foreign Corrupt Practices Act enforcement.

For instance, in 2010 then DOJ Assistant Attorney General Lanny Breuer delivered a speech before the Council on Foreign Relations titled “International Criminal Law Enforcement:  Rule of Law, Anti-Corruption and Beyond” and how the increase in FCPA enforcement was consistent with U.S.’s global approach to promote the rule of law. Breuer began his speech by asking two rhetorical questions:  is the rule of law “more than just a catch phrase” and “does the rule of law have any real meaning” and concluded his speech by saying that there is nothing “more critical, both to our country and to other nations, than establishing true rule of law.”

A commonly accepted rule of law principle includes limited government powers.

The World Justice Project defines this factor as a “system of checks and balances to limit the reach of excessive government power” and “the distribution of authority in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power.”

Regardless of what one thinks about the efficacy and policy merits of non-prosecution and deferred prosecution agreements, one must concede that NPAs and DPAs represent a concentration of power by a “single organ of government” (the DOJ).

This concentration of power has, with increasing frequency, been criticized including on these pages since 2010 (see here for the article “The Facade of FCPA Enforcement,” and here for the more recent article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement”).

A notable development this year has been U.S. v. Fokker Services.

Although not an FCPA case (it involves criminal charges against the company to unlawfully export U.S. origin goods and services to Iran, Sudan, and Burma), the case has been followed closely here at FCPA Professor because of its potential impact on FCPA enforcement.

As highlighted in this prior post, U.S. District Court Judge Richard Leon (D.D.C.) refused to rubber stamp the DPA agreed to by the DOJ and Fokker Services.  Judge Leon’s decision is being appealed to the D.C. Circuit and as noted in this prior post the DOJ’s position is basically “hands off our DPAs.” See here for additional briefs filed in the matter. In September, the D.C. Circuit heard oral arguments and the audio file of the arguments is here. For a good summary of the oral argument, see here. The appeal presents an uncommon situation in which the DOJ and criminal defendant share similar positions – that is, wanting the DPA to be approved so both sides can move on. Yet as evidenced in the oral argument, the court seems to have serious concerns regarding the substantive and procedural arguments of the parties.

Big picture, what is at issue in Fokker Services is the concentration of power.

While we await the D.C. Circuit’s decision, it is worth noting that concentration of power has always been issue of concern in this country.

In 1788 James Madison penned what would become known as Federalist Paper No. 51 titled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.”

In pertinent part, Madison wrote:

“To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights.”

In more modern times, it is worth noting (see here) that the United Kingdom rejected NPAs because they represented too extreme a concentration of power.  In the words of the U.K. Ministry of Justice, “the lack of judicial oversight is likely to make [NPAs] unsuitable for the constitutional arrangements and legal traditions in England and Wales.  We have concluded that [NPAs] are not suitable for this jurisdiction due to their markedly lesser degree of transparency, including the absence of judicial oversight.”

Moreover, it is worth noting that the U.K.’s regime for DPAs does provide for a system of early and consistent checks and balances by the judiciary.

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