This is part of a familiar dance between government lawyers and their colleagues in the defense bar. Far from being entrenched opponents, prosecutors and defense attorneys are often colleagues who have spent years working together in the same white-shoe firms—and who fully expect to do so again in the future. The coziness, in fact, goes a long way toward explaining why the government has failed to indict and prosecute corporate criminals at the highest level. According to a study by the Transactional Records Access Clearinghouse at Syracuse University, federal prosecutions for corporate crime plunged by 29 percent between 2004 and 2014—a time that saw a massive housing bubble and collapse built on unconscionable fraud.
How did this happen? Close relationships on both sides of the negotiating table create not only a disinclination to play hardball but also career incentives for leniency. Add to this legal rulings over the past decade that have effectively placed handcuffs on prosecutors, and it’s easy to see why no major bank executive saw the inside of a jail cell after the financial crisis. But the biggest constraint on indicting corporate criminals lies in the minds of the men and women of the Justice Department.
Jesse Eisinger’s terrific book, The Chickenshit Club, explains how we got here: how prosecutors lost their tools and, more importantly, their nerve. While Eisinger focuses mostly on the missteps of law enforcement agencies under Bush and Obama, it’s a sobering read for anyone eagerly anticipating the demise of the Trump cartel. In recent history, America has dealt with grifters like Trump with kid gloves. In fact, that’s part of the reason he’s in the White House today.
Eisinger’s narrative features several luminaries from the Trump-Russia investigation. The book’s title comes from former FBI director and Trump dinner companion James Comey, who used the term “chickenshit club” to refer to prosecutors who never lose a case because they never take a risk. Later, Comey showed a hint of the same cowardice when he asked subordinates to negotiate with auditing firm KPMG instead of filing suit in a tax evasion case. There’s also Mueller, who co-chaired the Enron Task Force, which Eisinger holds up as a model of how to go after corporate wrongdoing.
James Comey’s failure to live up to his own sanctimonious pronouncements turns out to have a major impact on American history.