Secret Corporate Crime Deals

Since 2001, the Justice Department has cut 250 deferred and non prosecution agreements with major corporations.

The vast majority of those agreements are public.

But there are two dozen or so of them that are not.

And Brandon Garrett wants to see them.

Garrett is a professor at the University of Virginia School of Law.

He’s writing a book – tentatively titled Too Big to Jail: How Prosecutors Take on Corporations.

Garrett says that in doing research for his book, he has come across a couple of cases where he was told by prosecutors that the deferred or non prosecution agreements would not be made public because of understandings with defense counsel not to make them public.

Earlier this year, Garrett filed a Freedom of Information Act request for the two dozen or so missing deferred and non prosecution agreements.

He has yet to hear back from the Department.

Yesterday, the Justice Department announced a non prosecution agreement with Tyco International settling a Foreign Corrupt Practices Act (FCPA) matter.

When the Justice Department e-mailed the press release to reporters yesterday morning, they attached the criminal information and a plea agrement with a Tyco subsidiary.

But the non prosecution agreement with the parent was not attached.

A number of calls to the Justice Department press office were made yesterday seeking the non prosecution agreement, to no avail.

[Update: After this article was published, a Justice Department spokesperson wrote to say that the non prosecution agreement was e-mailed to those who asked for it. But they didn't answer why the agreement wasn't sent out to reporters with the press release.]

We put the question to the Justice Department and to Tyco’s defense counsel – Martin Weinstein at Willkie Farr – was there an agreement with Tyco not to release to reporters the non prosecution agreement and attached statement of facts along with the press release and other documents?

No answer from either thus far.

Southern Illinois Law Professor Michael Koehler says that is “no good reason” why the Justice Department didn’t release the non prosecution agreement with the press release.

Garrett points to a non prosecution agreement with the Islamic Investment Company of the Gulf.

The Justice Department cut that deal in August 2011, but didn’t release it until Senator Charles Grassley (R-Iowa) and Congressman Frank Wolf (R-Virginia) began to make noise about it.

So, yes, corporate crime defense counsel.

Despite the Justice Department denials, apparently you can negotiate the press on major corporate crime cases.

Demand that the documents not be made public.

They don’t have to be filed with the court.

Reporters won’t be able to find them on PACER.

And you might be able to keep that pesky statement of facts out of public view.

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