Portside

Less than two months before President-elect Donald Trump takes office, the Biden Justice Department announced it could be handing corporations a get-out-of-jail-free card, even if they have committed multiple crimes, earned significant profit from their wrongdoing, and failed to self-disclose the misconduct — as long as the companies demonstrate they “acted in good faith” to try to come clean.

“Those that make good faith efforts to self-report, even if they do not qualify for a [full prosecution shield], could still receive substantial benefits,” noted the Nov. 22 update. These potential benefits include agreements where the corporation is not prosecuted and credit for cooperating with the Justice Department’s investigation.

The Justice Department made its announcement amid a presidential transition in which Biden administration Justice Department officials could be turned out of their government jobs and may seek new employment in the corporate sector — where many of them already worked.

The policy change could help soften federal prosecutions under Trump — including the ongoing investigation of billionaire Trump booster Elon Musk for potential securities fraud.

The new policy also follows the release of annual data showing white-collar prosecutions remain at historic lows. 

In 2021 under President Joe Biden, such prosecutions reached a record low of 90 cases and have only moderately increased since then. Federal corporate cases have fallen sharply since 2000, when the Department of Justice prosecuted 304 corporations — around three times the number of corporations that it does today. 

Yet according to the Justice Department, promoting transparency around white-collar crimes “encourages companies to stop bad actors and deter them from misconduct,” Deputy Assistant Attorney General and former corporate lawyer Nicole Argentieri wrote in the policy update. Argentieri oversaw the Justice Department’s July agreement with Boeing to not prosecute top officials at the airplane manufacturer who headed the company during two fatal plane crashes in 2018 and 2019.

The update comes three years after the Justice Department urged corporations to expand their legal compliance programs — a self-policing system that, if enacted by the company, can lead to leniency from federal prosecutors.  

According to the Justice Department’s update on the matter, along with offering leniency to corporations that have a history of wrongdoings or gleaned “significant profits” from their crimes, the new policy expands what qualifies as “voluntary self-disclosure” of misconduct. Now, such disclosures, which can help companies avoid prosecution, include “good-faith” efforts to report wrongdoing — rather than only rewarding proactive efforts to come clean before federal charges appear unavoidable.

Essentially, this policy update says that “even companies that have these blots on their record that should mean that they’re disqualified from escaping prosecution… we’ll find a way to help the companies avoid prosecution,” said Rick Claypool, a corporate crime expert from the government watchdog group Public Citizen. “They’re really bending over backward to protect corporations.” 

The new policy builds off actions by former Assistant Attorney General Kenneth Polite Jr., who incentivized corporations to self-report their misconduct and cooperate with government prosecutors to avoid prosecution.

After leaving the Justice Department in 2023, Polite joined Sidley Austin LLP, a global law firm known for defending corporations and individuals under investigation for white-collar crimes. He currently serves as the firm’s coleader of its White Collar Defense and Investigations Practice. 

“What [this policy] says to me is that there’s a significant strain of the Justice Department that doesn’t believe in taking an adversarial stance against corporate crime,” Claypool said.  

The Justice Department did not respond to The Lever’s request for comment before publication. 

“Ways Of Wiggling Out Of It”

Argentieri, a mob prosecutor turned white-collar defense lawyer at the multinational firm O’Melveny & Myers LLP, joined the Justice Department in 2022. Since then, the agency has offered industry-friendly deferred prosecution agreements and non-prosecution agreements in almost all major corporate fraud cases.

This year, for example, Argentieri and other Justice Department officials reached an agreement with Boeing executives that allowed the airplane maker to plead guilty to conspiring to defraud the Federal Aviation Administration and pay a $487 million fine for breaching a 2021 deferred prosecution agreement related to plane crashes that killed 346 people. In exchange, no one at the company faced jail time. 

General Motors’ autonomous vehicle company Cruise also avoided prosecution this year after agreeing to pay a $500,000 fine due to one of their robotaxis striking and dragging a pedestrian more than 20 feet. The deal came even after the company admitted to submitting a false traffic safety report on the incident to try to influence the federal investigation.

At the same time, the Justice Department has urged corporate leaders to expand their internal legal compliance programs — in effect outsourcing some corporate scrutiny to the corporations themselves. If corporations have these kinds of programs in place, they will be offered leniency, according to Deputy Attorney General Lisa Monaco, a former corporate consultant who worked on behalf of Boeing. 

“The current administration’s [Department of Justice] continues to prioritize self-disclosure and cooperation as key pillars in its corporate enforcement framework,” noted international global defense firm Debevoise & Plimpton LLP in a blog post on the policy update.

According to corporate compliance consultant Matt Kelly, the new rules could be the Justice Department’s acknowledgment of current budget limitations and the potential for more cutbacks under Trump.

“I appreciate the urge for more prosecution of corporate crime and more serious punishments, but the reality is that the department doesn’t have the resources to pursue that enforcement — it doesn’t now, and it certainly won’t under the Trump administration,” said Kelly, who wrote about the policy changes on his blog Radical Compliance. “These latest policy changes are meant to tilt that calculus toward a company doing the right thing, by making that right thing more palatable. You catch more flies with honey than vinegar.”

But Claypool worries that the policy update gives corporations one more tool they can use to avoid responsibility for misconduct.

“[These companies] would have us believe they are the most powerful and sophisticated actors in the country, if not the world, and they want investors to give them full faith and full credit for all their achievements,” said Claypool. “But when they plainly break the law, they have ways of wiggling out of it that no low-level offender could ever hope for.”