Source: United States Department of Justice Criminal Division
Thank you, Lisa and Paige, for having me here today. And thank you to the American Conference Institute for hosting this conference.
Under my leadership, the Criminal Division has been tirelessly working to execute on all of the Department’s priorities, holding criminals to account and seeking justice for victims.
Today, I’m here to talk about the Criminal Division’s renewed efforts to combat white-collar crime in the new Administration.
Let me first say a few words about FCPA enforcement before I discuss in detail the Criminal Division’s policies, approach, and initiatives in the white-collar space.
The Deputy Attorney General sent me a memorandum, which he publicly released, detailing the new FCPA Enforcement Guidelines called for by the President’s Executive Order. These Guidelines provide evaluation criteria and a non-exhaustive list of factors to balance when deciding whether to pursue an FCPA case.
As detailed in the DAG’s memo, the factors include — but are not limited to — whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete; involves key infrastructure or assets; bears strong indicia of corrupt intent tied to particular individuals and serious misconduct; or is associated with the criminal operations of a Cartel or Transnational Criminal Organization. No one factor is necessary or dispositive.
The through-line is that these Guidelines require the vindication of U.S. interests. People have speculated about the meaning of that phrase, but the DAG’s memo makes it clear. It is not about the nationality of the subject or where the company is headquartered. In plain terms, conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement. Conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators. And in those cases, the Criminal Division won’t hesitate to work with our foreign counterparts or domestic regulators to provide assistance and ensure that those countries and regulators can vindicate their interests and pursue their mandates.
The memo also directs other common-sense principles, such as focusing on specific misconduct of individuals, rather than collective knowledge theories. All of these propositions are not controversial; in fact, we’ve heard them many times from counsel advocating on behalf of their clients.
Under the DAG’s leadership, the Department has reviewed FCPA matters, closing certain cases and proceeding with others by applying the criteria set forth in the Guidelines. With these Guidelines now in place, and consistent with the Executive Order, the Criminal Division will enforce the FCPA — firmly but fairly — by bringing enforcement actions against conduct that directly undermines U.S. national interests without losing sight of the burdens on American companies that operate globally.
Now, let me shift from the FCPA to the extremely broad swath of white-collar and corporate misconduct not governed by that particular statute.
As many of you know, four weeks ago, I released the Criminal Division’s enforcement plan for white-collar crime and discussed how we will ensure justice and fairness in those cases. To the extent anyone may have misread these remarks, let me be clear: Under my leadership, the Criminal Division has not and will not close meritorious investigations or dismiss meritorious cases. Indeed, consistent with the principles set forth in my memorandum, we will vigorously pursue these investigations and open new ones. We will move them expeditiously. And we will resolve them, fairly and justly.
Let me make one other broad, related point. Be conscientious about what, when, and how you appeal the decisions of Trial Attorneys and AUSAs. White-collar and corporate defendants are fortunate to have sophisticated counsel. We do not begrudge defense counsel for zealously advocating for their clients. And we hold our prosecutors to the highest standards. These are central tenets of our system.
But seeking premature relief, mischaracterizing prosecutorial conduct, or otherwise failing to be an honest broker actively undermines our system. It also will be counter-productive to your appeals, coloring arguments that may carry more weight, especially when made judiciously at the appropriate time. Clients deserve your wise counsel about how to handle the most significant and sensitive matters, and in the overwhelming majority of cases, that’s what they get. We should all strive to keep it that way.
In the Criminal Division, we are focused on the work. So, let’s talk about that.
Fighting white-collar and corporate crime is a critical component of the Criminal Division’s priorities. From procurement to health care fraud, and money laundering to sanctions evasion, white-collar and corporate crimes steal from taxpayers, inhibit American prosperity, and impact national security. These crimes rob U.S. citizens and investors of their hard-earned savings, disturb markets, hurt the economy, and victimize vulnerable Americans.
Protecting the American people requires an aggressive and robust strategy to investigate and prosecute white-collar and corporate crime. Almost a month ago, you heard me say that you have a role to play in this fight. Indeed, business and compliance leaders, and the counsel who advise them, have a critical role to play. You can do the right thing, report potential crimes, root out misconduct, cooperate with the Department, and help the company remediate. And when you do, significant benefits are available to your clients.
But there is an important corollary to that — and I want to make sure you hear it clearly and take it to your stakeholders and clients. For those who do not come forward despite all the benefits available: we will move aggressively — yet fairly — to prosecute white-collar offenders whose crimes undermine U.S. interests. We will hold accountable those who victimize the most vulnerable among us and defraud the government. We will root out those who abuse the American economy and exploit law-abiding businesses. We will swiftly bring charges against individuals and companies, and all the benefits of our policies will not be available to these offenders.
So let me take a few minutes to speak at a more granular level about what our policies mean in practice. The memo and policies I issued last month demonstrate our commitment to this approach. We clarified the Corporate Enforcement and Voluntary Self-Disclosure Policy and expanded the Corporate Whistleblower Awards Pilot Program because these policies work. They incentivize companies and individuals to report crime to let us go after bad actors.
Indeed, these policies and incentives work best when we are clear and transparent with the public, including American businesses and the defense bar. That is why I issued the white-collar memo last month. The memorandum clearly articulated key areas of enforcement for the Criminal Division and directed our prosecutors to move quickly to bring charges. As an aside, and this should go without saying, priority connotes precedence, not exclusivity.
Let me dig in on three key areas of change.
First, declinations. The benefits to companies that voluntarily self-report, cooperate, and remediate have never been clearer and more certain: those companies will receive a declination, not just a “presumption.”
While we have maintained our discretion to deviate where there are aggravating circumstances, this is not a game of “gotcha.” We cannot envision every fact pattern imaginable, and we must retain some flexibility where the aggravating factors are such that a declination simply is not appropriate. But I can tell you that I am closely reviewing all corporate resolutions, and I am standing behind this policy. Indeed, the revised CEP narrowed what constitutes an “aggravating factor,” giving even more transparency and certainty for companies deciding whether or not to come forward. Issuing declinations for voluntary self-reports is sound policy — both to hold the most culpable individuals accountable and as a preventative measure to deter misconduct from happening in the first place — and I will closely scrutinize any VSD that is not recommended for a CEP declination. The circumstances would have to be truly aggravating and sufficient to outweigh the fact that the company voluntarily came forward.
Next, monitors. We are nearing the end of our review of all Criminal Division corporate monitors. And, as the revised monitor policy lays out, we have learned some important lessons. Under my leadership, the Criminal Division has proceeded with some monitorships but terminated others where circumstances permitted companies to achieve compliance with our agreements on their own, including by self-reporting, compliance certifications, and other requirements.
Monitors are meant to be a temporary bridge and accountability measure to move a company quickly and efficiently to full compliance. We believe the measures we’ve instituted in place of monitorships — including putting additional burden on the Criminal Division — more quickly transition companies to full compliance. These self-directed measures limit the wasted effort and financial resources that are expended when companies are more focused on “teaching to the test,” so to speak, rather than make lasting improvements.
And finally, on efficiency. The Criminal Division’s experts tackle the most complex criminal cases. These take significant effort and resources, but they don’t need to take unreasonable time. Lengthy and sprawling investigations do not serve the Department, our prosecutors, the American public, or those under investigation. Under my leadership, the Criminal Division will do its part to charge or decline quickly.
Since issuing our new policies, I have met with the leaders in all my Sections and made it clear: we must move more quickly to get criminals off the streets and bring clarity to those under investigation. Moving cases quickly will ensure that we use our resources efficiently in service of all of the Department’s priorities.
But you play a role in efficiency, too. Producing documents swiftly in response to requests, promptly identifying key evidence, quickly making witnesses available, and effectively navigating complex global legal regimes are just part of what we expect cooperating companies to do. To state the obvious: when the delay is due to the conduct of a subject or target, arguments regarding a supposed lack of efficiency will not resonate.
Finally, we also expect you to work closely with our teams, to follow the process, to narrow disagreements, and to raise up issues after exhausting discussions. I rely on my prosecutors to educate me on the facts of their cases and the issues you raise. When you reach out to me or other Department leadership, you, your client, and I can all move more efficiently when those issues have been appropriately narrowed.
Where are we now? We’re less than thirty days since I issued the white-collar enforcement plan. In even just this short period, I can tell you we are happy with the results.
Since the memo was issued, we have seen new voluntary self-disclosures — including for potential FCPA violations. And as you know, when one company reports misconduct, it typically leads to the discovery of similar misconduct at other companies, so you benefit from being first in the door.
We have seen continued robust tips from whistleblowers, including in each of our newly added categories. These reports and tips cover many of the areas of focus in the white-collar memo. Just days after I announced the expansion, we received tips related to drug trafficking and corruption, procurement fraud, healthcare fraud, and more. This is just the beginning, so stay tuned.
With these policies in place, now is the time to get to work. We’ve made changes to effectuate my mandate to charge cases in a variety of areas. The Criminal Division is full of prosecutors, who, working with our partners in the U.S. Attorneys’ Offices and law enforcement agencies, must be focused on just that — bringing cases. Of note to this audience, in the coming weeks I anticipate significant announcements in key priority areas, including corporate resolutions across the white-collar landscape.
What do I want you to take away from today? This is the time for companies to self-report. It is the time to do the work, come in early, cooperate, and remediate. The Criminal Division’s policies give clear benefits to those who do. And for those who don’t, we will move swiftly and aggressively to bring cases against individuals and companies. We will use all our tools and seek strong sentences. We will hold culpable companies and individuals to account for misconduct.
Thank you.
MIL Security OSI –
