BOB GARFIELD: Hey want another swell way not to be branded for life as a criminal plutocrat? Don't get prosecuted for your crimes. For instance when the George W. Bush administration discovered that Purdue Pharmaceuticals had fraudulent concealed OxyContin addictiveness, it let the company walk away with a fine of 600 million dollars for quote 'misbranding.' The government, according to ProPublica's Jesse Eisinger, has over the years lost the stomach to prosecute white collar crime. Eisinger is the author of The Chicken [BLEEP] Club–atitle he explained to me when we spoke last year.
JESSE EISINGER: So Jim Comey, long before he became FBI director and fired by Trump, was the U.S. attorney in the Southern District of New York–the premier office for white collar crime, for corporate law enforcement, particularly securities enforcement. In 2002, he came into this office and he gathers all the criminal prosecutors together. He says, 'how many of you guys have never lost a case?' Bunch of hands shoot up because they're so proud of their undefeated track records and Comey looks around the room says, 'well me and my buddies have a name for you–you're the chicken [BLEEP] club. Your job is not about accumulating a unbeaten record picking on little guys. Your job is about justice. And justice requires sometimes taking on the most ambitious cases and not being afraid of losing. And the argument of the book is over the subsequent 15-16 years. The Department of Justice became the chicken [BLEEP] club writ large.
BOB GARFIELD: Nice talk son, but Comey's challenge didn't necessarily comport with even the most recent history of the government's behavior with white collar crime. Politicians are all law and order about street crime but historically not so hard nosed when the culprits are in dark suits.
JESSE EISINGER: Yes there's never been a golden age where the wealthy and powerful had to fear for their liberty if they committed crime. But there have been silver ages and crackdowns throughout American history after 1929. We create the securities laws that exist to today. That was a significant change. In the SNL crisis we prosecuted over a thousand individuals including top executives from many of the top financial firms. We frogmarched Goldman Sachs partner off the trading floor which was a significant crash down under Giuliani. In the late 1990s early 2000, we had an accounting fraud pandemic and then prosecuted many of the top executives from many of the top companies that were implicated. So they were imperfect before but the problem has become much more serious and acute now.
BOB GARFIELD: There have been hard nosed prosecutors like Stanley Sporkin, who is one of your heroes–yet, also accidentally kind of a villain. Let's start with why he's your hero.
JESSE EISINGER: He's the enforcement director at the Securities and Exchange Commission in the 1970s. Policing all sorts of behavior that corporations had never had policed before. He had a great Columbo routinely sat on this couch and it was completely hideous it was faded from some terrible colors from the early 60s. He ate his lunch on that and spew out jello when he was talking. And defense lawyers would come in very well-dressed, highly paid defense lawyers from the best firms and they would make their arguments for their clients. And Sporkin would sit on this couch and sink into the cushions and appeared to fall asleep. And they would be utterly discombobulated they had no idea. 'Should we go on with our presentations? Is he even listening?' And then they would say something and he would spring up and he'd been listening the whole time and he would find a weakness in their argument. And he would have them in his power then.
BOB GARFIELD: But, one of his great tools, and this gets to his accidental villainy, was something we now know of as consent decree. What was good about these things? And what has gone wrong since?
JESSE EISINGER: He starts cracking down on an epidemic of corporate bribery, especially corporate bribery abroad that was revealed in the Watergate investigation with slush funds. And what he does is brilliantly goes after them for not fully disclosing their bribes to the shareholders. They don't have a line item for bribery.
STANLEY SPORKIN: When we looked at these funds, we found that they were not only being used domestically in the United States for illegal campaign contributions but be used to bribe officials overseas in connection with the company's business.[END CLIP]
JESSE EISINGER: So he leveraged this to say cooperate, pay a fine, then don't do it again. And lots of companies did and he cleaned up corporate behaviour–at least for a while. So in the hands of Sporkin who was genuinely tough and clear sighted, this new tool was good. Over time it became corrupted and became the kind of thing that they reached for without even thinking about it–and that's corrosive. At some point, people just think that paying fines to the FCC is a cost of doing business.
BOB GARFIELD: But, an even more profound inflection point, you say, is the famed investigation and prosecution of Enron and of its accounting firm Arthur Andersen.
JESSE EISINGER: Arthur Andersen had destroyed literally tons of documents related to the Enron audit, clearly trying to cover up all their knowledge of it. So the Department of Justice wins its trial against Arthur Andersen. And then over time the PR campaign aided by The Wall Street Journal editorial page, The American Bar Association, even the ACLU, they succeed in changing the conversation from Arthur Andersen's accounting fraud and obstruction of justice to the innocent employees who have lost their jobs.
MALE CORRESPONDENT: And it could mean the end of Andersen Accounting which has already lost scores of clients and has already been forced to throw thousands of workers into the street.
MALE CORRESPONDENT: Now the government is punishing everyone at the company.
MALE CORRESPONDENT: They're being punished due to a couple of people that made some wrong decisions. [END CLIP]
JESSE EISINGER: It's an amazing PR victory. And it's so effective that it's internalized by prosecutors themselves, and not just Republican, laissez faire prosecutors, but by Democrats. And by the middle of the audits, people like Mary Jo White who was the U.S. attorney in the southern district then becomes a corporate defense lawyer then becomes Obama's head of the FCC before going back to her firm to become a corporate defense lawyer, she is saying Arthur Andersen was a mistake. And the head of the criminal division of Obama's Department of Justice Lanny Breuer is saying prosecuting Arthur Andersen was a mistake. They have decided that we can never prosecute large companies again. There are too many maligned collateral consequences. And this is a disastrous conclusion.
BOB GARFIELD: All right. So, counterintuitively, populist anger is inflamed about the government's pursuit of that group formerly known as fat cats. That's one incentive for prosecutors and regulators to pull punches. The other, to which you just alluded, is that revolving door between the Department of Justice and the Securities and Exchange Commission and the defense bar. Your implication is that prosecutors were either going easy on pals or feathering their nests for later employment. But isn't the opposite also actually true? That the most successful prosecutors are the ones who are most valued when they do go into private practice.
JESSE EISINGER: This is the line that you hear from the Department of Justice and from the white collar bar all the time. That prosecutors have every incentive to win a high profile trial, but that's just not actually the case. What they do instead is they take on tangential cases. You can do a high profile, insider trading case at a hedge fund and you're not taking on a systemic issue and you're not taking on an institution that jeopardizes tens of thousands of people's jobs. But you still can get that stipple drawing on the front page of The Wall Street Journal and parlay that into a multimillion dollar partnership. But what's really going on at the Department of Justice now, in the dirty little secret of corporate law enforcement, is that we've outsourced and privatized it to the companies themselves. What happens is, companies hire major law firms and they conduct internal investigations. And internal investigations are delivered to the Department of Justice and they look professional and dazzling and they're very thorough, but they're studiously incurious about culpability at the top–not all of them, but many of them.
BOB GARFIELD: All right. So you're suggesting there has been this ideological shift in this century, but aren't you leaving a couple of things out? One is that after 9/11, the Justice Department took all its attention from white collar crime, and organized crime by the way, to focus on counterterrorism. And maybe, more importantly, after the Wall Street crash, President Obama explicitly stated that he would put the liquidity of markets and the preservation of the fragile global banking system ahead of chasing the bad guys.
BARACK OBAMA: There will be time to punish those who set this fire but now is not the time to argue about how it got set or that the neighbor sleep in his bed or leave the stove on. Right now we want to point out that fire. [END CLIP]
JESSE EISINGER: I think it's was one of the great scandals of the Obama administration. That they did not put more resources to prosecuting individuals after the financial crisis. Because you could save the system and still prosecute the frauds. And in fact, they go hand in hand. To have legitimacy in saving the system and lend legitimacy to your reform efforts, you needed to say we also held bad people accountable. Instead, what we did with bankers after the financial crisis is let most of them preserve their bank accounts, kept many of the top executives in their jobs at the biggest banks that they had just blown up and now they're retiring to accolades. And the average person can look around and say, 'that is an outrage and those guys are getting away with it.' And you can't argue with them.
BOB GARFIELD: Your head must be swimming now that what meager financial regulations were imposed after the 2008 meltdown are now being deregulated again.
JESSE EISINGER: I mean it's--it's stunning that we would have such a short term memory loss. And the point of the book is that this problem was building before the financial crisis and it persists to today. And it affects not just big banks but all sorts of companies–industrials, pharmaceuticals, tech. And it will lead to another grave financial crisis. I don't know when but it's inevitable.
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BOB GARFIELD: Jessie, Thank you so much.
JESSE EISINGER: Thank you.
BOB GARFIELD: Jesse Eisinger is a Pulitzer Prize winning journalist for ProPublica and author of the magnificently titled, The Chicken [BLEEP] Club.
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BOB GARFIELD: Coming up, under deep cover penetrating the messaging apparatus of the NRA. This On The Media.