Corporate Prosecutors and Their Invisible Chains

Students of Harvard Law School, I am loath to be the bearer of bad news since you have so little experience with bad news. But somebody should tell you.

Those of you who aspire to become prosecutors need to know that you cannot hope to ever become good prosecutors without overcoming great obstacles. These obstacles will be unfamiliar to you. You have had too many advantages in your life.

And let me emphasize up front, that I’m not blaming you, for these circumstances are beyond your control. Rather, I blame rather the social milieu in which you were raised. Most of you, at any rate.

The majority of you grew up in upper-middle class or wealthy enclaves, in comfortable homes surrounded by successful professionals. But even if you didn’t grow up in a favorable environment, you have proven to be someone who could succeed enough to get into Harvard Law. Such an accomplishment required prodigious amounts of work from an early age, a goal-oriented youth, and a drive to succeed. You grasped what society demanded of you—your parents, your teachers, the institutions you belonged to and the institutions you aspire to. In other words, you’ve figured out how to please the powerful and influential.

Pleasers can become good — even great — lawyers at big, snazzy firms. They are welcomed as partners and colleagues. They are diligent and conscientious. They are great on the law and wily negotiators. Clients, unsurprisingly, love such tireless servants.

They don’t make good prosecutors. A good prosecutor must relish doling out displeasure.

Reading this now, you probably think this is all wrong. A top-notch student like you will gladly go after drug dealers, organized criminals and terrorists.

But of course, you want prestige as well. You went to Harvard, after all.

And so, your aim is the Southern District of New York. And there, catching drug lords and mafia bosses will not be enough. Prosecutors in the SDNY want do the really prestigious stuff: white-collar criminal work, particularly securities fraud. You’ll want to work your way up into the Securities and Commodities Fraud Task Force.

Then someday, you will want to have a family and some kids. I don’t have to tell a bright young thing like you that it’s expensive to live in New York City (or Washington D.C.). You’ll need to shoulder nanny costs, a personal trainer, and Christmas tips. The occasional anniversary dinner at Marea or Per Se. Tuition for two at Ethical Culture or Horace Mann. A modest four-bedroom summer cottage in the Hamptons.

How do you ensure the proper career for that kind of future?

Because you’ll have to leave the DOJ to afford that future, there are two things you want to avoid as a young prosecutor while you’re there: working a case that comes up blank and—much, much worse in the eyes of your superiors — losing a trial.

You will ache to go to trial. But how many trials are you going to do, anyway? Back in the old days, Assistant U.S. Attorneys might have four or five high profile white collar trials a year. Now you will be lucky to have that many in your entire career at the Justice Department, so pick wisely.

Your superiors will say they don’t mind if you lose, if the case was righteous to begin with. But superiors say a lot of things, as do hiring committees at Paul Weiss, Covington, Cleary and Debevoise. They aren’t, however, looking for losers, and you know it.

What this means is that your incentives are to take cases that are high-profile one-offs. Find the discrete cases. Let’s say you have to choose between investigating possible manipulation of derivatives contracts at all major investment banks and an insider trading case against the manager of a big hedge fund. Your chief will say: Both are vital! But the former will ensnare you in a years-long investigation. You don’t know if there was a crime committed. And even if there was, the evidence will be dry and old. Explaining it to a jury will be impossible.

The insider trading case, by contrast, is easy to understand. You might have damning records made by the perps. You can probably get a jury to see things your way. You’ll garner kudos from your boss. The Wall Street Journal will do one of those stipple-dot drawings of you. Business Insider will put you on one of those lists of the most important people in American business.

To summarize: Don’t toil away like an obsessive hermit on some infernally complex obsession and come up empty. Don’t lose at trial. Secure your future.

As much as you will try to avoid it, there will come a time when you will be tasked with investigating white-collar crime at the most respected institutions in the country, perhaps Goldman Sachs, JPMorgan, General Motors, Pfizer or Wal-Mart. Criminally investigating top executives or partners at Fortune 500 corporations and their enablers at the most prestigious law firms, accounting firms and consultancies means something different than going after al-Qaida or Raj Rajaratnum.

For investigating corporations means you will have to investigate your peers, your classmates, and their parents. Their defense attorneys will be your idols and your mentors, seasoned lawyers from the best law firms who were legends in the government office where you’ll be working. You will have heard stories about these lawyers in the hallways. Now you will get to sit across the table from them in a negotiation.

In these discussions, you will hear their reasonable explanations. Nobody will seem corrupt or sleazy to you. They will tell you that the company is cooperating fully. You may have heard of the new “Yates Memo,” named after Deputy Attorney General Sally Yates, which explains that prosecutors should prioritize going after individual wrongdoers first and foremost in white-collar corporate cases. You may figure it’s a new era at the Department of Justice. But when the white-shoe law firm gives you the fruits of its investigation, it will have been conducted with man-hours and resources you could only dream of. Even with the new DOJ policies, you won’t be exactly coordinating teams of FBI agents. There will be no forensic investigators poring over documents, no 5 a.m. witness interviews, no grand jury showdowns with chief executive officers.

As you flip through the internal investigation’s findings, defense attorneys will ruefully explain to you that no one executive — especially one at the very top of the organization with thousands under his or her purview — knew the full picture of the wrongdoing. They will remind you that it will be quite difficult to prove in court, beyond a reasonable doubt, that any individual knowingly and intentionally broke the law. And they will assure you that the company is sorry. Very sorry. So sorry that it is willing to offer lots and lots of money as an apology.

Unfortunately, you won’t be able to help it; you will want to please these formidable personages. Again, it’s not your genes. Blame your environment. You’ll want to dazzle the defense lawyers on the other side of the table with your knowledge of legal precedent and mastery of details. You’ll need them to come to see you as a worthy adversary. But you will also want them to imagine you as a future partner. You cannot have them thinking you are unreasonable. You will need to prove yourself a person of proportion.

To overcome all of this and become a prosecutor who has the skills and will to prosecute chief executives of the biggest corporations in America is probably too much to ask of anyone, much less a Harvard Law graduate.

So what can you do to become a good prosecutor? Here’s some advice: After your Article III clerkship or two, go to the firm now. Make the money. Work your way up the firm’s hierarchy so that you no longer feel the great need to impress. Earn the feeling of accomplishment, confidence and career satisfaction (or, more likely, utter boredom). After many years, after you have had your fill of big corporate law, only then put in your application to the Department of Justice.

And then maybe, just maybe, you’ll be ready to become a halfway decent prosecutor.

Jesse Eisinger is a senior reporter at ProPublica and columnist for The New York Times. He won a Pulitzer Prize in 2011 for his reporting on the financial crisis.