Of Coerced Waiver, Government Leverage, and Corporate Loyalty: The Holder, Thompson, and McNulty Memos and Their Critics

Since 1999, the U.S. Department of Justice (“DOJ”) has had a formal policy detailing the criteria its lawyers will use for deciding whether to prosecute corporations for federal crimes. Three U.S. Deputy Attorneys General (Eric Holder, Larry Thompson, and Paul McNulty) in two administrations have authored and lent their names to different versions of the policy. The content of the policy has, however, largely remained the same. So have the criticisms of the policy from the corporate bar as well as some academics and members of Congress. These criticisms largely miss the mark—despite their constant repetition—for reasons that defenders of the DOJ policy have to date not clearly articulated. The critics seek to lay at the feet of the DOJ policy problems whose primary causes lie elsewhere, in places the critics may be reluctant to have us look. Thus, abolishing the objectionable parts of the policy, as Senator Arlen Specter’s recent bill seeks to do, will not likely have much effect. Taking seriously the problems raised by the critics will require more drastic change than they (or anyone) may be willing to undertake. My aim in this essay is not so much to defend the DOJ policy as to deflate the dominant criticisms and to refocus the debate.