FacebookTwitterGoogle+RedditEmail

Jam the Revolving Door

Two professors of business law want to jam the revolving door between the Department of Justice and the white collar defense bar.

The two professors are Mike Koehler of Butler University and Ethan Burger of the University of Wollongong in Australia.

In a little noticed article published last month in the Academy of Criminal Justice Sciences, Koehler and Burger propose that Congress prohibit “all government enforcement attorneys from appearing ? in a representative capacity ? before their former employees for a five-year period after government service.”

They also propose that when an enforcement attorney is exclusively tasked with enforcing a niche law ? such as the Foreign Corrupt Practices Act (FCPA) ? that enforcement attorney be prohibited for a period of five years from providing defense-related legal services related to that law.

Koehler and Burger cite polls showing that nearly 80 percent of Americans do not trust their government.

“A contributing factor in the public’s distrust and discontent is the increasing frequency in which government enforcement attorneys enforce the law one day, and then the next day, move into private legal practice to defend clients against the same laws they used to enforce,” they write.

“These recurring instances raise several red flags, highlight potential conflicts of interest, and otherwise create the appearance of impropriety. Yet, these issues are seldom subject to serious legislative debate ? perhaps out of fear that similar restrictions with respect to former legislators and political appointees may be enacted.”

“Of course, few would dare call it corruption ? but in the eyes of many, both in the U.S. and abroad ? it occupies the same spectrum. On this issue, ‘business as usual’ in Washington is indeed unacceptable, reform is in the public interest, and the time for reform is now.”

Koehler and Burger focus their lasers on Mark Mendelsohn.

Mendelsohn is the former Justice Department official in charge of FCPA enforcement.

Last April, Mendelsohn jumped ship to join the white collar defense law firm of Paul Weiss. (See Interview with Mark Mendelsohn, 24 Corporate Crime Reporter 35(10), print edition only.)

Mendelsohn’s “enforcement theories ? often untested and aggressive legal theories subject to little or no judicial scrutiny because FCPA enforcement actions are typically resolved through privately negotiated non or deferred prosecution agreements ? spawned a multi-million dollar industry to service companies affected by the aggressive enforcement of the law,” the law professors write.

“Now, (Mendelsohn) is building a private legal practice ? while making 15-20 times his government salary ? advising and defending clients affected by the same law he aggressively enforced.”

Koehler and Burger point out that the Department of Justice “is not the only government enforcement agency subject to criticism when its enforcement attorneys enforce the law one day, and then the next day, move into private legal practice to defend clients against the same laws they used to enforce.”

They point to the frequency in which SEC enforcement officials leave the agency and then, within days or weeks, represent clients in matters before their old employer.

Current Department of Justice conflict rules impose a permanent ban of participating in a matter in which the attorney involved in the enforcement process “participated personally and substantially while a government employee.”

The rules also impose a two-year ban on participating in a matter in which the Department prosecutor “knows or reasonably should know was pending under his or her official responsibility within a period of one-year before the termination of his or her employment.”

The rules also impose a one-year “cooling-off” period on U.S. Attorneys.

Under these rules a senior employee “may not make any communication to or appearance before his or her former agency on any matter in which the former employee seeks official action.”

Koehler and Burger say that these provisions do not go far enough.

For example, the the one year “cooling-off” period only applies to “United States Attorneys.”

Koehler and Burger argue that “taxpayers who employ these public servants should not be left to wonder, because of the multi-million dollar salary ‘on the other side,’ whether government enforcement attorneys have an incentive not to alienate or be overly strict with prospective future employers and clients.”

Nor should they be left to wonder whether these enforcement attorneys will enforce the law “in such a way as to create a market for their future services.”

Nor should they be left to wonder whether “former government enforcement attorneys are hired primarily because of the connections they developed while a public servant.”

RUSSELL MOKHIBER edits the Corporate Crime Reporter.

 

More articles by:

Russell Mokhiber is the editor of the Corporate Crime Reporter..

Weekend Edition
September 21, 2018
Friday - Sunday
Paul Street
Laquan McDonald is Being Tried for His Own Racist Murder
Brad Evans
What Does It Mean to Celebrate International Peace Day?
Alexandra Isfahani-Hammond
Hurricane Florence and 9.7 Million Pigs
Nick Pemberton
With or Without Kavanaugh, The United States Is Anti-Choice
Andrew Levine
Israel’s Anti-Semitism Smear Campaign
Jim Kavanagh
“Taxpayer Money” Threatens Medicare-for-All (And Every Other Social Program)
Jonathan Cook
Palestine: The Testbed for Trump’s Plan to Tear up the Rules-Based International Order
Jeffrey St. Clair
Roaming Charges: the Chickenhawks Have Finally Come Back Home to Roost!
David Rosen
As the Capitalist World Turns: From Empire to Imperialism to Globalization?
Jonah Raskin
Green Capitalism Rears Its Head at Global Climate Action Summit
James Munson
On Climate, the Centrists are the Deplorables
Robert Hunziker
Is Paris 2015 Already Underwater?
Arshad Khan
Will Their Ever be Justice for Rohingya Muslims?
Jill Richardson
Why Women Don’t Report Sexual Assault
Dave Clennon
A Victory for Historical Accuracy and the Peace Movement: Not One Emmy for Ken Burns and “The Vietnam War”
W. T. Whitney
US Harasses Cuba Amid Mysterious Circumstances
Nathan Kalman-Lamb
Things That Make Sports Fans Uncomfortable
George Capaccio
Iran: “Snapping Back” Sanctions and the Threat of War
Kenneth Surin
Brexit is Coming, But Which Will It Be?
Louis Proyect
Moore’s “Fahrenheit 11/9”: Entertaining Film, Crappy Politics
Ramzy Baroud
Why Israel Demolishes: Khan Al-Ahmar as Representation of Greater Genocide
Ben Dangl
The Zapatistas’ Dignified Rage: Revolutionary Theories and Anticapitalist Dreams of Subcommandante Marcos
Ron Jacobs
Faith, Madness, or Death
Bill Glahn
Crime Comes Knocking
Terry Heaton
Pat Robertson’s Hurricane “Miracle”
Dave Lindorff
In Montgomery County PA, It’s Often a Jury of White People
Louis Yako
From Citizens to Customers: the Corporate Customer Service Culture in America 
William Boardman
The Shame of Dianne Feinstein, the Courage of Christine Blasey Ford 
Ernie Niemi
Logging and Climate Change: Oregon is Appalachia and Timber is Our Coal
Jessicah Pierre
Nike Says “Believe in Something,” But Can It Sacrifice Something, Too?
Paul Fitzgerald - Elizabeth Gould
Weaponized Dreams? The Curious Case of Robert Moss
Olivia Alperstein
An Environmental 9/11: the EPA’s Gutting of Methane Regulations
Ted Rall
Why Christine Ford vs. Brett Kavanaugh is a Train Wreck You Can’t Look Away From
Lauren Regan
The Day the Valves Turned: Defending the Pipeline Protesters
Ralph Nader
Questions, Questions Where are the Answers?
Binoy Kampmark
Deplatforming Germaine Greer
Raouf Halaby
It Should Not Be A He Said She Said Verdict
Robert Koehler
The Accusation That Wouldn’t Go Away
Jim Hightower
Amazon is Making Workers Tweet About How Great It is to Work There
Robby Sherwin
Rabbi, Rabbi, Where For Art Thou Rabbi?
Vern Loomis
Has Something Evil This Way Come?
Steve Baggarly
Disarm Trident Walk Ends in Georgia
Graham Peebles
Priorities of the Time: Peace
Michael Doliner
The Department of Demonization
David Yearsley
Bollocks to Brexit: the Plumber Sings
FacebookTwitterGoogle+RedditEmail