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Enforcement Edge
October 28, 2021

Good Bye, Chickensh*t Club? DAG Monaco Says Prosecutors Will Be “Bold” and Pursue Tough Cases, and Won’t Be Afraid to Lose

Enforcement Edge: Shining Light on Government Enforcement

DOJ has come under considerable criticism over the years for being unduly risk adverse in its efforts to prosecute corporate crime, allegedly bringing cases only when DOJ seems sure to win and leaving much white collar and corporate crime unpunished and undeterred. Journalist Jesse Eisinger gave us perhaps the best treatment of the case against this historical DOJ approach in his excellent book, The Chickenshit Club. The title of Eisinger’s book is based on a powerful speech by then-US Attorney Jim Comey to the Criminal Division of the US Attorney’s Office of the Southern District of New York, in which Comey stated that a prosecutor who has had 10 trials and no acquittals is a member of the “Chickenshit Club”: the prosecutor was only pursuing easy cases and was not living up to her duty to pursue crime with the vigor that the public expects and deserves.

In the context of corporate investigations, one major and serious criticism of a risk adverse, “Chickenshit” approach is that a company that cynically fails to cooperate fully and truthfully may walk away scot-free at the end of a DOJ investigation, while a company that does cooperate fully and truthfully may end up being prosecuted and having to pay significant penalties. It’s a perverse result for sure, but this may happen more than most folks think.    

This morning, Deputy Attorney General Lisa Monaco seemed to address the criticism in presenting the ABA White Collar Crime Conference’s E. Lawrence Barcella, Jr. Memorial Address. In announcing what might turn out to be a significant new approach, Monaco emphasized that DOJ prosecutors have a duty to prosecute cases if they have sufficient evidence, that they should pursue tough cases if the evidence is there, and that they should not be afraid to lose. She made plain that, going forward, DOJ prosecutors should be “bold.”

Monaco’s statement struck us as a potentially big change, and intentionally or not, seemed to be a full-throated response to the sort of “Chickenshit” criticism that DOJ has faced in recent years.  We will be watching closely to see how this new, bolder approach is followed in practice. If prosecutors follow through and take a less risk-averse approach to pursuing corporate crime, we may well see more and more aggressive prosecutions of corporations and executives, and perhaps an uptick in trials in coming years.

Stay tuned.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.