Biden Justice Department Refusing to Release Corporate Deferred and Non Prosecution Agreement Database

The Biden Justice Department is refusing to make public it’s database of deferred and non prosecution agreements.

Attorney General Merrick Garland

In August 2020, Congressman Jamie Raskin (D-Maryland) called on Trump Attorney General William Barr to release the list of all corporate deferred and non prosecution agreements “entered into by every division within the Department of Justice and every United States Attorney’s Office from 2009 to the present be provided to us and made publicly available as soon as possible.”

Barr did not respond. 

Now, the Biden Justice Department under Attorney General Merrick Garland is also not responding to calls to make public the database.

The Justice Department’s public affairs office did not respond to inquiries about the matter.

“It is critical that the Department, regardless of presidential administration, be fully transparent in its dealings with powerful corporate defendants,” Raskin told Corporate Crime Reporter last year.

Jon Ashley at the University of Virginia School of Law has been working for years on pulling together all such agreements for the law school’s Corporate Prosecution Registry. The registry is currently home to more than 3,500 such agreements.

But Ashley says “it seems to be something of an open secret” that there are more such agreements that are not made public and in April, 2020 Ashley filed a Freedom of Information Act (FOIA) request seeking a list of all such deferred and non prosecution agreements from 2009 to the present.

The Department of Justice has failed to respond to Ashley’s FOIA and last September, Ashley filed an administrative appeal.

The consensus in the corporate criminal defense bar, as expressed by a Skadden alert earlier this year, was that “the Biden administration is widely expected to be tougher on corporate crime than its predecessor.”

But Garland’s Justice Department seems to be slow out of the gate in ramping up corporate crime prosecutions.

Corporate Crime Reporter compared corporate crime resolutions in the first five months of the Biden Justice Department to the first five months of the Trump Justice Department.

Under Trump, there were 46 corporate deferred and non prosecutions, pleas and convictions. 

Under Biden, there have been only 17.

Trump’s Justice Department may have benefitted from legacy cases from the outgoing Obama administration. But Garland has yet to address the issue of corporate crime head on. 

And President Biden has nominated a corporate criminal defense attorney — former Morgan Lewis partner and former Entergy vice president Kenneth Polite — to be the head of the Criminal Division at the Department of Justice. Entergy operates nuclear power facilities throughout the south.

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