White-Collar Crime

The Two Paths Forward For The Trump DOJ

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Department of Justice DOJ USDOJ sealSo, 24 hours after we all woke up to the news that, yes, Donald Trump will be our next president, where do things stand for the white-collar world as it contemplates a Trump presidency?

I think it’s almost impossible to tell.

There have long been two schools of thought about what a Trump Justice Department would look like. One school of thought — the one I’m clinging to like Kate Winslet at the end of Titanic — is that Trump will actually appoint reasonable people to the Justice Department.

This line of thinking is familiar: Trump himself has no idea who would be good at any of the top jobs at Justice, so he will naturally defer to the Establishment Republicans who know these things. People who have served before and know what it takes to run the Department.

Those people, the thinking goes, will put the right people in the right positions and make sure he doesn’t do anything too crazy. I actually have a close friend with a significant amount of government experience who’s been involved in the transition, so I want to believe this is true.

But the second line of thinking suggests that people like my friend actually won’t matter much. Trump got here in spite of the Establishment Republicans, not because of them. He owes those people nothing, so it’s hard to imagine that he would even seek their advice, much less reward them, as he considers his appointments.

In addition to who he might pick for Attorney General itself, there are also the “down-ballot” positions to consider — the Deputy Attorney General, the Assistant Attorneys General, and the people immediately below them. Who will Trump appoint to carry out the day-to-day operations of the Department? Will these people have any significant government experience?

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Finally, there are the policy judgments that his appointees are going to have to make. Take the Yates Memo, for example. People who do what I do — mainly represent individuals, not companies, in white-collar cases — hate the Yates Memo, because it’s essentially a blank check for companies to throw our clients overboard in order to curry favor with the government.

How the Yates Memo will play in a Trump DOJ is interesting to think about.

On the one hand, Trump is a businessman and has many friends who work in business. So he could double down on the Yates Memo as a way of protecting large companies: as long as you throw the right people overboard, your company has nothing to worry about from Trump’s DOJ.

On the other hand, Trump campaigned as, and was elected as, a populist. He’s positioned himself as the champion of the little guy. Perhaps a Trump DOJ would dial back the Yates Memo as a way of demonstrating that big business can’t get away with bad acts by throwing hard-working people under the bus.

And then there’s “lock her up.”

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Will a Trump DOJ actually pursue an indictment of Hillary Clinton, as he said he would during the campaign? That is possibly the most significant criminal justice decision he will make in his first year, and the repercussions of moving forward against her will be staggering. No sitting president has ever sought the prosecution of his opponent in the election.

I can think of few issues that would unite the white-collar bar more than this, no matter what someone’s politics are. Criminal defense attorneys tend to be deeply suspicious of government power, and that goes double when they smell a political motivation for its use.

In the end, I have no idea what we’re in for. If you think you do, then you haven’t been paying attention.

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 [email protected].

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