At the same time Wednesday that Judge Brett Kavanaugh was working Capitol Hill corridors for support for his nomination, another important nominee was finally confirmed after more than a year of waiting.
Brian Benczkowski on Wednesday won Senate confirmation as the new assistant attorney general of the criminal division at the U.S. Department of Justice. West Virginia’s Joe Manchin broke ranks with his fellow Democrats to confirm the nominee 51-48. Washington is especially fixated on what that confirmation augurs for the confirmation of President Trump’s nominee for the U.S. Supreme Court, Brett Kavanaugh.
But the confirmation of Benczkowski, who won high marks as a respected chief of staff to former Attorney General Michael Mukasey, is a big deal in its own right. This confirmation places energetic leadership behind new DOJ initiatives that will change how the government relates to corporations and the private sector.
Under past administrations, DOJ had increasingly treated cases involving corporate defendants with a heavy hand, as if every case was an all-out war against organized crime. For example, FedEx had proactively sought the government’s guidance for a list of shady pharmaceuticals to blacklist. The company’s reward for this civic-mindedness was a federal charge of distributing narcotics. Federal prosecutors also targeted a respected medical device maker for a tendentious criminal charge of selling a device “off label.”
Both of these DOJ cases collapsed in court. These embarrassments led to a departmental reassessment of the draconian way in which the criminal division had been treating companies. Coercive techniques ranged from threatening criminal prosecution of companies to elicit larger settlements in civil cases, to duplicative penalties from a plethora of agencies – SEC, CFTC, FDIC, OCC, OFAC, and the rest of the alphabet.
Worse, the Yates Memo issued by former Deputy Attorney General Sally Yates doubled down on this culture, in effect making the criminal targeting of corporate leaders the default setting for any investigation. With the advent of a new administration, DOJ has embraced a spirit in which compliance is becoming more of a cooperative venture with the private sector, reserving hard-nosed prosecutions for actual wrongdoers. This new spirit can be seen in many actions.
For the first time in 20 years, the department is reviewing the 11,000 pages of the U.S. Attorneys’ Manual to make it more accessible, comprehensive and instructive. The manual, not guidance memos, will serve to guide the actions of federal prosecutors.
The enforcement of the Foreign Corrupt Practices Act – long a tar-pit for companies victimized by a single individual – is now being enforced in a way that gives corporations credit for cooperation. “Corporate settlements do not necessarily directly deter individual wrongdoers,” Deputy Attorney General Rod Rosenstein recently observed. “Our goal in every case should be to make the next violation less likely to occur by punishing individual wrongdoers.”
DOJ is also setting out to coordinate the punitive actions of multiple agencies, so defendants are not subjected to the “piling on” effect of being punished many times for the same act – “a risk,” Rosenstein says, “of repeated punishments that may well exceed what is necessary to rectify the harm and deter future violations.”
All these are commendable initiatives that have been defined by the political and permanent leadership of the Department of Justice. Even the most well-crafted policies, however, won’t set in without energetic and aggressive leadership. Keeping the criminal division under “acting leadership,” whether the intention of Senate Democrats or not, effectively mutes and constrains the ability of the department to forcefully execute these changes in the field. “Having a confirmed leader is really incredibly important to the vitality of the division, the clarity of its mission and the focus of its resources.” Leslie Caldwell, who was the last Senate-confirmed head of the criminal division told Law360.
The confirmation of Benczkowski will provide DOJ’s criminal division with a strong leader who is expected to aggressively fulfill the department’s new agenda. In reflecting on the practice of threatening criminal prosecution to up fines, Rosenstein said that ending this practice “is not a policy change. It is a reminder of and commitment to principles of fairness and the rule of law.”
With Brian Benczkowski at the helm of the criminal division, we now have a tough, no-nonsense law enforcer who has pledged his commitment to just that: fairness and the rule of law.
Mr. Bork is president of Bork Group, a crisis and litigation consultancy in Washington, DC.
