Did A Jeff Sessions Riff Signal The Beginning Of The End For The Yates Memo?

The best stuff is always when they go off script.

sessions-rfFiguring out what a new administration’s enforcement priorities are can be like reading tea leaves, if tea leaves could put you in prison. It’s a matter of listening to what members of the administration say, thinking about what they didn’t say, and then watching their actions to see if they match the words.

I thought about this recently when I read a Washington Post article about Attorney General Jeff Sessions’s April 24th speech to the annual conference of the Ethics and Compliance Initiative.

(Side note: ECI’s conference website contains, in large blue text, one of the most hilarious examples of legal-marketing-speak I have seen in a long time: “The time has come to advance the dialogue in regard to High Quality Programs.” That is so true. And can we advance the dialogue on Bizarre Capitalization Practices while we’re at It?)

Sessions’s speech was touted as his first major address on the Trump administration’s white-collar enforcement priorities. As anyone who’s read a newspaper looked at a blog post in the past 100 days can tell you, DOJ’s main concern hasn’t exactly been focused on white-collar crime (unless, I suppose, it was being committed by lawful permanent residents, in which case I assume it was on).

So this speech was the first chance for members of the white-collar bar, and the people they defend, to hear how DOJ might view their area in the coming years.

The prepared remarks were interesting enough. After first noting that DOJ is committed to fighting corporate crime, he went on to praise the people who do compliance work and try to prevent that crime in the first place:

But each case we bring may be a sign that something has already gone wrong. That is what your work seeks to prevent, by building strong cultures of compliance within your companies to deter illegal and unethical conduct. We applaud those efforts. Our department would much rather have people and companies obey the law and do the right thing, so we don’t have to see them in court.

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He then went on to deliver his second main point:

The second message I want to make clear today is that under my leadership, the Department of Justice remains committed to enforcing all the laws. That includes laws regarding corporate misconduct, fraud, foreign corruption and other types of white-collar crime.

After some additional discussion of why that matters, he then got to the juicy bit and addressed, even if obliquely, what’s been on the mind of everyone who does white-collar since Trump won the election:

What about the Yates Memo?

As regular readers will recall, the Yates Memo was issued by former Deputy Attorney General Sally Yates in 2015. It can be summed up thusly: “Hey companies! The faster you throw your employees under the bus when DOJ comes knocking, the more cooperation credit you’ll get. So get to it, people!”

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People like me, who primarily defend individuals in white-collar cases, hate the Yates Memo. It gives companies even more reason to screw our clients in order to save themselves. It also has the whiff of class warfare about it: give us those fat cats, or else! The problem is, the fat cats aren’t the ones who go under the bus. The company uses the strays for that.

So what did Sessions say in his prepared remarks? He didn’t refer to the Yates Memo directly, but he did say this:

The Department of Justice will continue to emphasize the importance of holding individuals accountable for corporate misconduct. It is not merely companies, but specific individuals, who break the law. We will work closely with our law enforcement partners, both here and abroad, to bring these persons to justice.

At first glance, that seems to echo the Yates Memo. But that’s where things get interesting—because those were only the prepared remarks. As the Washington Post reported, Sessions decided to riff a little. And it’s the riffs that are interesting.

Here’s what the Post piece said; I’ve bolded the parts that weren’t in the prepared remarks.

Companies that obey the law and do the right thing should not be at a disadvantage simply because their competitors choose to break the law,” Sessions said. He said, though, that the department would try to differentiate between an “honest mistake” and “willful misconduct.

Sessions said the department also would continue “to emphasize the importance” of holding individuals, rather than just companies, accountable for misconduct. But he also said doing so was “not always possible” and that lawyers would take into account companies’ cooperation and self-disclosure when making charging decisions.

He said he also felt businesses should not be held responsible for isolated mistakes by employees.

Well, isn’t that interesting?

Distinguishing between an “honest mistake” and “willful misconduct” is what defense attorneys do every day — and what the best prosecutors do, too. Smart prosecutors know that it’s “not always possible” to find one particular person to blame things on. And lawyers who mainly defend companies know that “isolated mistakes by employees” sometimes happen — and it makes little sense to go after an entire company when they do.

I won’t rebut the obvious class-warfare comments here: “He’s just trying to give fat cats a free pass!” I don’t think that’s it. These comments are the definition of nuance — something that I’ve heard very few people give Jeff Sessions credit for. But maybe that’s unfair. Maybe the Sessions DOJ will be more even-handed than people think.

Maybe, just maybe, the canary just skipped a note in the coalmine that is the Yates Memo.


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.