Media Reviews
cybersecurity measures, and technical data to assist law firms in their quest to protect their data. In addition to the practitioner looking to stay ahead of cybersecurity pitfalls, Law Firm Cybersecurity serves as a great resource for IT professionals servicing law firms. Oftentimes the cybersecurity needs of law firms require addressing certain issues that are not relevant to the average customer. This book provides technical and detailed information that provides IT professionals the tools necessary to keep their law firm clients safe and secure. Raymond L. Panneton is a board member of The Houston Lawyer and practices corporate litigation with Hendershot, Cannon, Martin & Hisey, PC. He can be reached at rpanneton@hcmhlaw.com
The Chickensh** Club: Why the Justice Department Fails to Prosecute Executives By Jesse Eisinger Simon & Schuster, 2017 Reviewed by David V. Wilson II
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esse Eisinger, a Pulitzer Prize-winning journalist, put his reporting skills to work after the 2008 financial crisis to determine why the United States Justice Department prosecuted relatively few individual executives involved in that crisis. The book derives
its title from James Comey who, while serving as a U.S. Attorney, told a 2002 gathering of prosecutors that those in their ranks who had never lost a jury trial were members of the eponymous club. Comey’s point was that the Justice Department should take on hard cases and large injustices, not simply the easiest targets. Eisinger believes it no longer does so in the case of white collar crime. After recounting the story of Comey’s speech, Eisinger goes through the arc of the post2000 crisis prosecutions by the U.S. Government, including the Enron, Arthur Andersen, and WorldCom prosecutions. The Enron episode is well-chronicled, albeit with little attempt to be objective. The author clearly sees the Enron prosecutors as justified in their legal tactics, and writes disapprovingly about the appellate court decisions blunting or reversing many of the Enron Task Force’s trial court successes. The book then takes a roughly chronological view of white collar crime enforcement history from the “New Deal” era to today. This prosecutorial history will be interesting to legal historians. Parallel to this discussion is a history of Securities and Exchange Commission regulatory efforts. The anecdotal evidence Eisinger compiles with this parallel discussion supports a conclusion that the U.S. Government as a whole had elected—by the end of the second Bush administration—to regulate the financial system with large settlements with corporate defendants rather than individual defendants, in both civil and criminal enforcement arenas. In a rare use of statistics, Eisinger cites Justice Department data indicating a drop in indictments of corporations and an increase in the use of settlements over the period from 1992 through 2015. The thrust of Eisinger’s conclusion, which is otherwise based upon anecdotal evidence and individual interviews, is that the Justice Department gradually changed from aggressive enforcement through criminal sanctions against individuals and corporations, to more passively negotiating monetary settlements with corporate actors alone. Eisinger equates this
with impunity. The cause of this change is attributed by Eisinger to multiple factors. Specifically, Eisinger blames the “revolving door” between the white collar defense bar and the Justice Department, growing corporate lobbying influence in Congress, and a pro-business federal appellate bench, all culminating in an erosion of prosecutorial skills that has led to a fear of being aggressive. Three Justice Department officials whose names were highlighted in the early days of the Trump administration, due to their firings, appear in the book: Comey, Preet Bhrarara, and Sally Yates. While the latter two received praise during their Justice Department tenures for being tough on white collar crime, Eisinger disagrees. Bhrarara, once praised by Time Magazine, is criticized as focusing almost exclusively on easy to prove “insider trading” cases. Yates, whose controversial “Yates memo” alarmed many in the white collar defense bar, is dismissed as not going far enough in making white collar prosecution more aggressive. Extensive criminology literature questions an approach of episodic intervention focused on deterrence, as opposed to a multi-faceted regulatory approach to changing corporate behavior.1 But Eisinger takes a different view. He assumes—though without supporting data or evidence—that prosecuting individual actors (with subsequent incarceration) and criminally prosecuting corporations will better serve to deter and prevent industry misconduct, and his prose therefore praises prosecutors with an “aggressive cowboy culture” over cautious bureaucrats. David V. Wilson II is a partner in the Houston office of MehaffyWeber. He practices in both Texas and Nevada, and is a former Editor in Chief of The Houston Lawyer Endnote 1. See, e.g., John Braithwaite, In Search of Donald Campbell, CRIMINOLOGY & PUBLIC POLICY 15(2), p. 417 at 431 (American Society of Criminology 2016).
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