The Justice Department has issued a new policy to make the prosecution of individual executives, and not just the corporations that employ them, a top priority for federal prosecutors.
In a speech Thursday at New York University School of Law, Deputy Attorney General Sally Quillian Yates said that U.S. officials want to hold lawbreakers accountable “regardless of whether they commit their crimes on the street corner or in the boardroom.”
“We have revised our policy guidance to require that if a company wants any credit for cooperation, any credit at all, it must identify all individuals involved in the wrongdoing, regardless of their position, status or seniority in the company, and provide all relevant facts about their misconduct,” Yates said.
The new policy comes after continuing criticism that the Justice Department has not been tough enough in recent years on prosecuting high-level executives for financial misconduct, especially in the wake of the nation’s mortgage crisis.
Although the department under former attorney general Eric H. Holder prosecuted and settled with big banks, including JP Morgan Chase, Bank of America and Citigroup, no top Wall Street executives were prosecuted or punished for the misconduct.
“Since the market crisis, there has been a clamor to focus on and prosecute senior corporate executives,” said Thomas Gorman, an attorney with Dorsey & Whitney and an expert on Securities and Exchange Commission enforcement and insider trading. “The largest cases brought by the department focused on the corporation. While those actions were typically resolved with very significant penalties being paid by the company, the senior executives were not charged or prosecuted.”
The new rules, issued in a memo Wednesday night to all 93 federal prosecutors across the country, require that corporate investigations begin with a focus on individuals and build out to the larger corporate wrongdoing. Under the rules, which were first reported by the New York Times, the Justice Department will not agree, “absent extraordinary circumstances or existing department policy,” to provide protection from criminal or civil liability for individuals.
In addition, the department’s civil and criminal lawyers will be required to coordinate with each other in all corporate investigations; civil attorneys must focus on individuals as well as the company; and corporate matters cannot be resolved without a clear plan to resolve cases against individuals.
All decisions declining to prosecute culpable individuals must be approved by a U.S. attorney or the head of the Justice Department division handling the case, according to the memo.
“We’re not going to let corporations plead ignorance,” Yates said. “If they don’t know who is responsible, they will need to find out. If they want any cooperation credit, they will need to investigate and identify the responsible parties.”
Some critics say the policy changes are coming years too late and that it is unclear whether the Yates memo will result in any cases against individuals.
But Yates said Justice officials are determined to overcome the challenges and “do everything we can to develop the evidence and bring these cases.”
“Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation.”