The Role of Criminal Law in Policing Corporate Misconduct

In the early 1990s, I spent a couple of years as Chief of the Criminal Division in the Office of the U.S. Attorney for the Southern District of New York. One of my principal responsibilities was to hear “appeals” from defense lawyers, usually, although not exclusively, in white collar crime cases. These lawyers felt that their clients should not be indicted, or that the plea offer they had received from the prosecutor in charge of the case was unduly severe. Sometimes their arguments were essentially factual contentions that the government had the wrong take on the evidence—that the soon-to-be defendants were simply not guilty of the conduct that the investigators and line prosecutors believed they had committed. In these cases, the defense lawyers hoped that a more experienced (or at least different) prosecutor would appreciate the weaknesses in the government’s case. More commonly, however, the appeals were addressed to prosecutorial discretion—even if the government could not be persuaded to see the client as innocent, perhaps the more experienced prosecutor could be made to see that the scarce resources of the Department of Justice should not be wasted on this particular, purely technical violation. It was rather common, in such discussions, for defense counsel to assert that, properly understood, the pending matter was “really not a criminal case,” or was “really a civil matter.” I have made the argument myself, when representing clients in criminal investigations. It always struck me as somewhat surprising that, while the two sides usually disagreed about whether the assertion was true about the matter in hand, everyone in the room acted as if we knew, and more or less agreed about, what the assertion meant. What surprised me about that, I suppose, is that the assertion seemed to have no legal content whatsoever. As a general proposition, the distinction between criminal matters and civil matters is largely formal, and concerns the procedures to be applied in adjudicating a particular case. The question being addressed in those meetings was whether the case at hand—which was not yet a judicial “matter” of any sort—would become a criminal matter, and it would become one if I (or, after further appeal, my boss, the U.S. Attorney) said it