HuffPost | In a 1999 memo entitled “Bringing Criminal Charges Against Corporations,” written when he was deputy U.S. attorney general, Eric Holder argued that government officials could take into account “collateral consequences" when prosecuting corporate crimes.
That memo has resurfaced at a time when Holder, now U.S. attorney general, faces increasing criticism for the Department of Justice's reluctance to bring charges against white-collar criminals.
“There’s all kinds of problems with the applications of this policy which began with the Holder memo and got more formalized,” said John Coffee, a law professor at Columbia University and an expert in white-collar crime. “You are going to send a message that we don’t really care significantly about misconduct within those institutions.”
Although it brought only a modest change in the way prosecutors evaluate whether to bring criminal charges against corporations, Holder's memo laid the groundwork for subsequent policies that allowed for more leeway when going after large firms, Coffee said.
Adora Andy Jenkins, a Justice Department spokeswoman, wrote in an email to The Huffington Post that under Holder's leadership, "this Justice Department has stood firm in our approach that no person and no corporation is above the law."
In 1999, Holder highlighted the possibility of deferred prosecution -- an arrangement now common in the wake of the financial crisis -- whereby prosecutors essentially give defendants amnesty in exchange for paying a fine, enacting reforms and cooperating with investigators. But later officials published further memos, turning the option into more of a recommendation, Coffee said.
He said the policy was strengthened in response to the Arthur Andersen scandal of the early 2000s. After the government brought criminal charges against the consulting firm, the company failed, causing 28,000 workers -- many of whom likely had no role in any wrongdoing -- to lose their jobs. A court later overturned the charges.
Holder told the Wall Street Journal in 2006 that he drafted the memo in response to complaints that there seemed to be no uniform rules for deciding whether to bring charges in corporate cases.
"[I] didn’t expect these issues would become as big as they were," Holder told the WSJ at the time. Indeed, they've only grown larger in the seven years since that interview, as the financial crisis wreaked havoc on the U.S. economy.
The government has yet to prosecute any big banks or major executives for their role in the meltdown, and critics have derided Holder and his Justice Department for using the collateral damage argument as an excuse for not doing enough to hold those institutions accountable. The DOJ came under fire last year after declining to prosecute HSBC for years of money laundering violations, saying that to do so would bring too much damage to the global economy.
“The government just backed down,” Coffee said of that case. “There were reasons in 2008 to say maybe we shouldn’t indict any bank we can because it will just add to the systemic risk. But we were in 2012 to 2013 with HSBC -- that risk wasn’t there and we weren’t dealing with something that was relating to the activities that produced the 2008 crisis.”
Yet in addition to the HSBC deal, Sen. Elizabeth Warren (D-Mass.) and others have criticized Holder for statements he made to senators -- and later walked back -- indicating that he thought big banks had gotten too large to prosecute.
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