While I have a different perspective regarding the tenure of certain prior DOJ FCPA Unit Chiefs (see here for the prior post), I enjoyed Paul Pellitier’s (a former Principal Deputy Chief of the DOJ’s fraud section) recent post regarding the desired qualifications for the next DOJ FCPA Unit Chief and second many of his recommendations.
This post adds to the desired attributes for the next DOJ FCPA Unit Chief (and for that matter any DOJ or SEC FCPA enforcement attorney in a supervisory position).
It’s been said that when you possess a hammer, everything starts looking like a nail.
The analogy should be obvious to the FCPA enforcement context and thus prior prosecution experience is not necessarily a desired attribute for the next FCPA Unit Chief (as it has been for others previously in this position).
Rather, it would be nice to see an FCPA Unit Chief with bona fide, real-world business chops.
An individual who recognizes the complexities of doing business in the global marketplace. An individual who understands that the root causes of bribery and corruption are often trade barriers, trade distortions and other forms of foreign government bureaucracy. An individual who does not view the term “third party” to be a dirty word, but a valid and legitimate non-establishment way of doing business in the global marketplace. An individual who has direct experience with the good faith compliance efforts of the vast majority of business organizations and the amount of resources, both in terms of money and personnel, devoted to FCPA compliance by the business community.
A Student of the FCPA
Perhaps it was merely the self-deprecating sense of humor of a prior DOJ FCPA Unit Chief.
In any event, the DOJ does not need an FCPA Unit chief that tells a federal court judge in the middle of an FCPA trial (a trial ultimately lost by the DOJ) as follows. “Your Honor, I’m not going to pretend that I’m the most knowledgeable guy in the world about the FCPA or foreign bribery.” (See U.S. v. O’Shea, Jury Trial (Day 4) Transcript, Jan. 16, 2012).
The FCPA is approaching its 40th anniversary and the next FCPA Unit Chief should be a student of the FCPA. An individual who firmly understands why Congress enacted the FCPA. An individual who recognizes that Congress intended the FCPA to be a limited statute. (Anyone seeking knowledge on these topics should read “The Story of the FCPA” – the most extensive piece written about the FCPA’s legislative history). An individual well-versed on prior DOJ enforcement actions and related policy positions. An individual knowledgeable about prior FCPA enforcement statistics so that the new FCPA Unit Chief’s rhetoric can actually match (and not be contradictory to) prior DOJ practices.
In short, the next FCPA Unit Chief will not be enforcing a new law against a blank slate, but enforcing a law nearly 40 years old against the backdrop of decades of enforcement actions and policy positions.
Pellitier’s prior post contained a good list of suggested commitments for the DOJ’s next FCPA Unit Chief.
The following commitments should also be added to the list.
Do Not Become a Pawn
Commit to not allow yourself to become a pawn of the for-profit FCPA conference industry who will attempt to use your name and your willingness to speak at their events as a means to drive attendance to their paid event. (This sleazy aspect of FCPA Inc. has been profiled here and here). In short, you are not a commodity that certain segments of FCPA Inc. should treat as if they own and the public should not have to pay to hear their public officials speak about an important U.S. law. Public outreach is certainly a component of the FCPA Unit Chief’s job. However, if you have something to say, say it to everyone and say it for free. The DOJ has its own press office, own blog, and there are a number of free social media resources (including the FCPA Flash podcast) in which you can reach the desired audience.
Do Not Take the Job Just to Get Your “FCPA Badge”
As explained to me by a former high-ranking DOJ official, many individuals in the FCPA Unit are seemingly there to get their “FCPA badge” (a term used by the individual) who then trade in their “badge” for a multi-million dollar FCPA private practice career. If you follow this common practice, some will say, well gosh this is just how Washington D.C. works.
Yet realize that if you follow this common practice, some will roll their eyes and your legacy and future credibility will be undermined. Indeed, consider the following analogy.
Imagine a foreign country where enforcement of a specific law is vested solely, per enforcement agency policy in the hands of a few individuals and where these few individuals are “in charge of all investigations, prosecutions, and resolutions” under the law; where the individuals set and champion policy objectives relevant to the specific law; where the individuals “enforce” the specific law against business organizations largely behind closed doors in the absence of meaningful judicial scrutiny and little case law setting the parameters of the specific law; and where the individuals then leave government service for lucrative jobs in the private sector to provide defense and compliance services to business organizations subject to the enforcement climate they helped create and champion.
Do you have concerns with such a system? If so, realize that what is described is not a foreign country, but common (and seemingly accepted) attributes of the DOJ’s FCPA enforcement program.
The DOJ’s next FCPA Unit Chief will likely not stay in that position for the rest of his/her career, but when that individual exits government service, there is a different, more noble path to follow compared to prior DOJ FCPA Unit Chiefs. Should you need guidance, consider the career path of former U.K. Serious Fraud Officer Director Richard Alderman.