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Eric Holder's corporate law firm is turning into a 'shadow Justice Department'

businessinsider.com | August 27, 2015

By Avi Asher-Schapiro

The revolving door between the Department of Justice and a certain corporate law firm is spinning faster than ever. On July 6, former Attorney General Eric Holder returned to his previous employer, Covington & Burling — a firm that's represented the biggest banks on Wall Street, and is internationally known for its white-collar defense practice. A week later, his DOJ chief of staff Margaret Richardson announced that she would be following him there.

Meanwhile, the latest data from the DOJ reveals that criminal prosecutions for white-collar crimes are at a 20-year low. This decline and the rapid circulation of personnel between Covington and the DOJ has raised questions about the Obama administration's handling of the banking industry and the 2008 financial crisis.

Under Obama, the DOJ decided not to pursue criminal charges against most of the executives and financial institutions behind the economic collapse, opting instead to impose hefty fines that were paid out by shareholders, not the employees or executives of the banks. In contrast, some 1,100 individuals faced criminal prosecution during the savings and loan crisis of the 1980s, and the heads of several major banks served jail time.

"I'm not accusing anyone of anything specific, but we're looking at a gigantic built-in conflict of interest revolving in and out of the attorney general's office," Ted Kaufman, a former Delaware senator who went on to chair the Congressional Oversight Panel tasked with monitoring the $700 billion bailout of the financial industry during the crisis, told VICE News.

When lawyers shuffle back and forth between prosecuting and defending white-collar criminals, he said, it makes observers wonder "whether the laws are the same for everyone."

A spokesperson for Covington told VICE News that the firm has "a strict conflicts check process," which it does not discuss in public, adding that its recruitment of former government officials is something it is "most proud of." Holder and Richardson declined to comment.

The Public Accountability Initiative, a nonprofit research organization, has prepared aninteractive map that charts many of the connections between the DOJ and Covington. It includes not only their white-collar defense division, but dozens of other lawyers who have circulated between the firm and the Justice Department.

Some media outlets and commentators have begun referring to Covington as a "shadow Justice Department" — a place for talented lawyers to become familiar with how corporations work before entering public service, and a landing pad for former federal prosecutors transitioning to the private sector.

Holder worked at Covington for eight years before Obama tapped him to lead the DOJ in 2009. Plotting his return to the fold became a six-year "project," Covington chairman Timothy Hester told the National Law Journal. The firm even reserved a vacant corner office for Holder's expected return.

"It's not coincidence that the higher up you are at the DOJ, when you leave, the more prestigious or elite the law firm you land at," Bartlett Naylor, a former chief of investigations for the US Senate Banking Committee, told VICE News. Naylor now works as a policy advocate for the public interest group Public Citizen, where he monitors the influence of money in politics.

Are we going to operate under the assumption that attorneys at DOJ who are leaving for high-paying jobs in the private sector aren't going to be influenced by their financial connections? It's absurd to try to make that case.'

Covington's white-collar defense division, which represents clients accused of corporate, financial, or regulatory crimes, is particularly well stacked with government talent.

"Our team includes former senior SEC officials, a former Secretary of Homeland Security, three former heads of the Justice Department's Criminal Division, former federal judges, numerous former federal prosecutors with extensive criminal trial experience, as well as former senior Treasury Department, State Department, and EU officials," boasts the firm's white-collar defense and investigations web page.

Holder and Richardson have joined five other top DOJ lawyers who left government to work in the lucrative division.

It's easy to see that DOJ prosecutors move in the same circles as the financial firms they are supposed to prosecute, but it's much more difficult to identify specific conflicts of interest. While Covington's current client list is not public, the firm has previously represented Bank of America, Citigroup, JPMorgan Chase, Morgan Stanley, and it is currently registered as a lobbyist for Wells Fargo. All of these institutions were under scrutiny for their role in circulating the toxic mortgages that triggered the 2008 financial crash.

Lanny Breuer, the firm's current vice chairman, was in charge of financial fraud prosecution in the Obama administration until 2012. Like Holder, Breuer also worked at Covington before joining Obama's DOJ. Under Breuer, the DOJ did not bring a single criminal case against big banks or other companies involved in mortgage servicing, even though "copious evidence has surfaced of apparent criminal violations in foreclosure cases," according to an investigation by Reuters.

Reuters was referring to thousands of documents that were forged by bank employees during the foreclosure crisis. Before the crash, Covington helped Fannie Mae, Freddie Mac, Bank of America, and JPMorgan create an entity called Mortgage Electronic Registry Systems, Inc. (MERS), which established a digital catalog of mortgages. MERS was later accused of drawing up fake mortgage assignments and fabricating documents in order to file illegal foreclosures on people's homes.

Breuer's defenders say that proving criminal liability would have been nearly impossible, given the complex and diffuse nature of decision-making at modern financial firms. Instead, Holder and Breuer's strategy at DOJ was the pursuit of settlements that forced financial institutions to settle charges of wrongdoing by paying hefty fines — some amounting to billions of dollars — while not admitting to having broken the law.

Critics of this strategy, such as Kaufman and Public Citizen, suggest that the practice of seeking fines rather than criminal convictions reflects the cozy relationship between the attorney general's office and corporate law firms. Others counter that pursuing criminal charges would have spread the DOJ thin during a budget crunch and that the multi-billion dollar settlements nevertheless allowed the DOJ to penalize bad behavior and deter it in the future.

What's shocking in Washington isn't what's illegal, but the sort of stuff that's legal.'

Peter Schweizer, the president of the conservative Government Accountability Institute, told VICE News that Covington has long cultivated lawyers like Holder to help their Wall Street clients avoid prosecution.

"If you're a large bank and you want to stay out of the crosshairs of the DOJ, who are you going to hire — someone who's been in the private sector, or a DOJ guy?" he asked. "You go with the DOJ guy."

Still, the movement of lawyers between Covington and the DOJ is not illegal and does not in itself constitute a technical breach of professional ethics. Bruce Green, the director of the Stein Center for Law and Ethics at the Fordham University School of Law, told VICE News that as long as lawyers like Holder and Breuer stay away from specific cases where their previous government work would present a conflict of interest, there shouldn't be a problem.

Green thinks it is highly unlikely that attorneys of that caliber would put themselves in legal or ethical gray zones — "Lawyers who care about their professional reputation aren't going to entertain something like that," he remarked — but he noted that because the firms are not required to disclose their current clients, potential conflicts of interest are essentially self-regulated.

"If you're a former DOJ official now in private practice, there's not going to be an ethical policeman sitting over your shoulder," he said.

Critics of the revolving door are skeptical that an ethical framework that relies heavily on self-policing will be inadequate.

"What's shocking in Washington isn't what's illegal, but the sort of stuff that's legal," Schweitzer said. "Are we going to operate under the assumption that attorneys at DOJ who are leaving for high-paying jobs in the private sector aren't going to be influenced by their financial connections? It's absurd to try to make that case."

The Office of the Inspector General, which investigates conflicts of interest and misconduct in the DOJ, would not comment on complications that could arise from the close association between Covington and DOJ veterans. But a 2014 Inspector General report asserted that prosecuting mortgage fraud — the primary white-collar crime that triggered the financial crisis — was a low priority under Holder, with hundreds of cases closed without prosecution and resources diverted to other areas.

Lawyers who move freely between white-collar defense and white-collar prosecution could conceivably be more likely to sympathize with institutions or individuals accused of financial crimes. A DOJ prosecutor that has close connections to the financial industry, Naylor said, might think that "these are his people" — a sense that could play into his approach to a criminal case.

To illustrate his point, Naylor pointed to statements made by Breuer and Holder in which they expressed sympathy with the big banks and their employees.

"In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders," Breuer remarked in 2012. "Those are the kinds of considerations in white-collar crime cases that literally keep me up at night."

In an interview with the Financial Times conducted after he left the DOJ, Holder seemed to echo this sentiment. He defended his decision not to seek high-level criminal prosecutions, arguing that large financial settlements were preferable to "trying to make examples of people" with jail time.

Ted Kaufman said he was "shocked" to hear Holder's comments.

"I thought what we tried to do under our criminal justice system was to catch people who broke the law, and to make an example out of them so others would think twice about doing the same," he said. "It's clear something serious has to be done about the revolving door."


Back to August 2015 Archive


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