ProPublica’s Jesse Eisinger has some advice to Harvard Law students — if you want to make it as a corporate criminal defense attorney, you’ll have to prove yourself as “a person of proportion.”
Eisinger is writing a book — The Chickenshit Club (Simon & Schuster, 2016) — about the failure of the Justice Department to criminally prosecute major corporate crime cases.
“Your aim is the Southern District of New York. And there, catching drug lords and mafia bosses will not be enough,” Eisinger writes in a recent article in the Harvard Law Record — Corporate Prosecutors and Their Invisible Chains. “Prosecutors in the SDNY want do the really prestigious stuff: white-collar criminal work, particularly securities fraud. You’ll want to work your way up into the Securities and Commodities Fraud Task Force.”
“Then someday, you will want to have a family and some kids. I don’t have to tell a bright young thing like you that it’s expensive to live in New York City — or Washington D.C. You’ll need to shoulder nanny costs, a personal trainer, and Christmas tips. The occasional anniversary dinner at Marea or Per Se. Tuition for two at Ethical Culture or Horace Mann. A modest four-bedroom summer cottage in the Hamptons.”
“How do you ensure the proper career for that kind of future?” he asks.
“As much as you will try to avoid it, there will come a time when you will be tasked with investigating white-collar crime at the most respected institutions in the country, perhaps Goldman Sachs, JPMorgan, General Motors, Pfizer or Wal-Mart. Criminally investigating top executives or partners at Fortune 500 corporations and their enablers at the most prestigious law firms, accounting firms and consultancies means something different than going after al-Qaida or Raj Rajaratnum.”
“For investigating corporations means you will have to investigate your peers, your classmates, and their parents. Their defense attorneys will be your idols and your mentors, seasoned lawyers from the best law firms who were legends in the government office where you’ll be working. You will have heard stories about these lawyers in the hallways. Now you will get to sit across the table from them in a negotiation.”
“In these discussions, you will hear their reasonable explanations. Nobody will seem corrupt or sleazy to you. They will tell you that the company is cooperating fully. You may have heard of the new “Yates Memo,” named after Deputy Attorney General Sally Yates, which explains that prosecutors should prioritize going after individual wrongdoers first and foremost in white-collar corporate cases. You may figure it’s a new era at the Department of Justice. But when the white-shoe law firm gives you the fruits of its investigation, it will have been conducted with man-hours and resources you could only dream of. Even with the new DOJ policies, you won’t be exactly coordinating teams of FBI agents. There will be no forensic investigators poring over documents, no 5 a.m. witness interviews, no grand jury showdowns with chief executive officers.”
“As you flip through the internal investigation’s findings, defense attorneys will ruefully explain to you that no one executive — especially one at the very top of the organization with thousands under his or her purview — knew the full picture of the wrongdoing. They will remind you that it will be quite difficult to prove in court, beyond a reasonable doubt, that any individual knowingly and intentionally broke the law. And they will assure you that the company is sorry. Very sorry. So sorry that it is willing to offer lots and lots of money as an apology.”
“Unfortunately, you won’t be able to help it — you will want to please these formidable personages. Again, it’s not your genes. Blame your environment. You’ll want to dazzle the defense lawyers on the other side of the table with your knowledge of legal precedent and mastery of details. You’ll need them to come to see you as a worthy adversary. But you will also want them to imagine you as a future partner. You cannot have them thinking you are unreasonable. You will need to prove yourself a person of proportion.”
“What can you do to become a good prosecutor?” Eisinger asks.“Here’s some advice: After your Article III clerkship or two, go to the firm now. Make the money. Work your way up the firm’s hierarchy so that you no longer feel the great need to impress. Earn the feeling of accomplishment, confidence and career satisfaction — or, more likely, utter boredom. After many years, after you have had your fill of big corporate law, only then put in your application to the Department of Justice.”
“And then maybe, just maybe, you’ll be ready to become a halfway decent prosecutor.”