IN 1919 A DEMOCRATIC POLITICAL operator and an intellectual Republican came together to create the archetype for the revolving-door law firm: Covington & Burling. J. Harry Covington had been a Democratic Maryland congressman for three terms, from 1909 to 1914. He sponsored the bill that helped create the Federal Trade Commission. President Woodrow Wilson later made him a judge on what became the US District Court in Washington, DC. Edward Burling was a Bull Moose Republican, a short-lived progressive splinter of the Republican Party. Combining his reserved brilliance and Covington’s contacts made for a formidable operation.
Soon enough, the firm’s partners were moving from the firm into government and back again. Dean Acheson, who joined Covington in 1921, served Franklin Delano Roosevelt at the 1944 Bretton Woods Conference that molded the post–World War II global financial order, creating the International Monetary Fund. In 1949 Acheson became President Harry Truman’s secretary of state. Covington partners have held top posts at the Treasury Department, the IRS, and the Defense Department’s Office of General Counsel. In 1971 a young star partner switched from representing food companies that were resisting a US Food and Drug Administration regulation to become the general counsel of the agency. While at the FDA, he continued to refer to Covington as “we.” When he left four years later, another Covington partner replaced him.1 And, of course, Covington lawyers populated the Department of Justice.
By the 1970s, Covington & Burling had become Washington, DC’s, leading firm, with a client roster that included most of the top corporations in the United States, nearly all the major countries in the world, and almost every major trade association. It represented 20 percent of the Fortune 200, including IBM, DuPont, Exxon, and Procter & Gamble, specializing in tax advice and antitrust work. C&B lawyers were instrumental in securing passage of the Telecommunications Act of 1996, a sprawling deregulatory effort. Covington advised Exxon in its merger with Mobil in 1999. More recent clients have ranked among the top financial firms in the world: Goldman Sachs, JPMorgan Chase, Citigroup, Bank of America, Wells Fargo, and Deutsche Bank.2
Today Covington is a fixture in the unelected permanent governing class, though it doesn’t carry the same special prestige as it once did. Nor is it uniquely powerful. In 1985 Covington had $49 million in revenue, making it the thirty-seventh-biggest firm in the country, and generated $215,000 in profits per equity partner, according to American Lawyer’s tally. Ten years of rapid growth later, in 1995, C&B brought in $135 million in revenue and generated $490,000 in profits per partner. Despite growth, it was then just the forty-fourth-largest firm.
Many other law firms and consulting operations have since joined its ranks. The DC rival WilmerHale is larger and more profitable. Consultancies and lobbying firms have won their fair share of business and new recruits. Washington became a big tent, capacious enough for all kinds of professionals to prosper. These firms lobby on behalf of clients; help write the laws that govern their clients; represent their clients in legal disputes and regulatory mishaps; consult with them; and help write their economic analyses to defend their merger proposals or fend off the government. Few people even know the names of these firms. The media hardly cover them, but reporters count many of their partners as sources. Legislators and regulators scrutinize them rarely because, generally, they are expecting to join them one day or receive campaign contributions from them.
Covington retained a particularly platinum reputation for tenacity and brilliance, tempered by understatement and modesty. Once, when a well-known partner began an argument by saying, “I don’t mean to burden this court,” the judge interrupted to say, “It’s never a burden to listen to you speak.”3 The firm conferred standing on its lawyers, not the other way around. “Lawyers there are important not so much for their personal skills, which may be substantial, but precisely because they are at Covington & Burling,” Mark Green, the future New York politician, put it in his 1978 book The Other Government, about the secret power of Washington law firms. Covington “exemplified the art of lawcraft as it is practiced in the City of Results.”4
For decades, Covington & Burling, staid and steeped in reverence for its own culture, held a weekly firm luncheon at Washington’s Metropolitan Club. In 1966, when founder Edward Burling Sr. was eulogized at the club, which did not admit women—and wouldn’t for another twenty-two years—an interoffice memo stated that the women lawyers at C&B, and the wives of male partners, were forbidden to attend. The club accepted its first black member in 1972, in part because of the prodding of Edward Burling Jr., the son of the founder who was also a Covington partner. One firm partner remarked that the only way for a Jew to become a member of the Metropolitan Club was to be a senior partner at Covington.
Up through the 1970s, secrecy enshrouded the business of law. Covington partners turned down media interviews, citing the twin “canons”: attorney-client privilege and the prohibition on soliciting employment through advertising. (The total ban on legal advertising was lifted after a 1977 Supreme Court ruling, Bates v. State Bar of Arizona.) H. Thomas Austern, a senior partner, explained C&B’s reticence. “Our public work is in court or agency records,” he said. “The rest of our practice is no one’s business but ours, and we won’t talk about it.”5
By the late 1990s, the partners began to worry. The firm remained powerful. But it was insular, sleepy, and—unsurprisingly, given its history—predominantly white, male, and Protestant. To its credit, Covington remained less mercenary than the biggest firms, with an old-fashioned belief in pro bono work and professionalism. Big law firms, by contrast, were becoming much more commercial, merging with one another to become all-service shops. Covington, which preferred to cultivate its own talent, was falling behind. The firm’s leadership realized it could no longer resist the changes in the business. Covington spent much of 1999 looking around for a merger partner before hitting on Howard, Smith & Levin. The upstart Manhattan firm, founded only in 1983, specialized in mergers-and-acquisitions (M&A) work. With the purchase of the practice, Covington kept its venerable name and added sixty lawyers. It became, in the words of a former partner, “twice as Jewish.” Though it wasn’t the sole aim, Covington now expanded its white-collar criminal practice and installed a Howard, Smith & Levin partner as its head. In 1999 the firm had $152 million in revenue, good for seventieth place in the country, and it made $485,000 in profits per partner. Just two years later, it had leapt to fifty-seventh place with $237 million in revenue and generated $655,000 per partner.6
By 2015, with both Obama’s former attorney general, Eric Holder, and former criminal division head Lanny Breuer having returned to Covington, the firm ended the year with $709 million in revenue, jumping to forty-third-largest. Partners earned more than $1.3 million, on average. Marquee partners who had served at the highest levels of the government made much more. Breuer was set to make $4 million a year in his first year back at Covington.7 When he was attorney general, Eric Holder made $199,700 a year. As a newly returned Covington partner, Holder, who in 1999 reportedly pulled in $2.5 million, including deferred compensation, when he left the firm to head up Justice, would make many times that.8
Covington’s March 2013 press release announcing Breuer’s return listed eighteen colleagues with law enforcement experience in this country and abroad, including two heads of the Justice Department’s antitrust division and Michael Chertoff, who had been the assistant attorney general of the criminal division before heading the Department of Homeland Security. That didn’t include all the former top regulators at the firm. After John Dugan left his position in 2010 as the head of the US Treasury’s Office of the Comptroller of the Currency, a major banking regulator, he also rejoined Covington. And on and on.
The revolving door was not just a way for government employees to cash in. Both sides were changing the other—ultimately to the benefit of corporations. No one conceded, at least publicly, that the revolving door influenced the lawyers’ work in government. “What people dismissively talk about as the revolving door allows people to be better public servants and private litigants,” Breuer told the New York Times. “I believe I was a better assistant attorney general because of my deep experience in the private sector.”9
Prosecutors such as the Southern District’s Peter Fleming, Rusty Wing, and Jed Rakoff began migrating to top law firms in the sixties and seventies. By the nineties, the trend had momentum. Almost every major firm in the country built or bought a substantial white-collar criminal defense practice. In 1986 the white-collar criminal defense bar tried to host its first annual meeting at the Boca Raton Resort and Club in Florida, but the resort rejected the group because it didn’t want to be associated with “discussions of criminal activity.”10 Shifting to a new locale, seventy-five lawyers showed up. In the 1990s, Rakoff and his team moved to the New York law firm Fried, Frank, Harris, Shriver & Jacobson. Davis Polk had Bob Fiske but started building up its practice. Debevoise & Plimpton remained aloof, still outsourcing its criminal work to boutiques. Debevoise capitulated to the trend in earnest when it recruited Mary Jo White after she’d left her US attorney job.
White-collar criminal work was not just becoming plentiful, but also it provided healthy profit margins, with companies paying up for legal advice that could preserve their reputations. White-collar criminal lawyers began to be paid better, compared with specialists in antitrust, M&A, intellectual property, bankruptcy, and corporate securities. White-collar departments had higher ratios of partners to associates than other departments. And they, more than partners from other areas, shared a common trait: most white-collar criminal law partners were former government officials, especially federal prosecutors.11 In 2016 the American Bar Association’s National White Collar Crime Institute’s thirtieth annual meeting hosted 1,034 attendees, an almost fourteen-fold increase from the original meeting. Today the government lawyers who cash in enter a business that has undergone a complete transformation in a few decades.
Rakoff, romantic about the past state of the business, worried about changes in the business of law. He’d grown up in the era of the lawyer-statesman and he had created a canyon of heroes to them in his chambers. Leon Silverman held a position of particular prominence. Silverman, who had been the head of Fried, Frank, where Rakoff practiced, was much more than a corporate lawyer. He’d served as president of the Supreme Court Historical Society and the Legal Aid Society, which provided lawyers for the poor.
Silverman and his other legal heroes, Rakoff believed, were the best exemplars of a generation of attorneys more interested in the law than in the business of law. Robert Gordon of Stanford Law School defined the lawyer-statesman as “the independent citizen, the uncorrupted just man of learning combined with practical wisdom.” Rakoff saw lawyers as the natural guardians of the law and of society’s morality. “They were a group of people whose view of the lawyer’s role in society was much, much broader than anything that most lawyers have today. They vanished,” the judge says. The statesmen had become endangered, done in by crude economics. They were luxuries firms could no longer afford.
Over time, competition in the legal business became fierce, and the old model fell away. Under the older oligopolistic model, partners did not live in constant fear of losing their long-standing corporate clients. Companies were more loyal. They had been clients for decades and expected to stay for decades to come. Law firms, secure in their clients, could give honest counsel. They could explain what was legal, what wasn’t, and what was legal but not ethical. Lawyers could advise their clients on matters of judgment, ethics, and psychology, and not on narrow matters of the fine print, worried about losing a client to another firm. Today law firms are bigger and more profitable but more frenzied for business. If the client hears something it doesn’t like, it seeks another opinion. That threat can prevent partners from being too strict with their clients. The new imperatives of this cutthroat world destroyed the old societal bond.
That, at least, was the story older lawyers told about their business. It was probably not an entirely accurate picture, but more true than not. The business had become much more commercial and more mercenary. Litigators had dominated the top ranks of firms in previous decades. Corporate transactional lawyers took over. They did deals, and they tracked the numbers and the bottom line. By the 2000s, law firms had imported the jargon and attitudes of business school.
Though the notion had been building for a while, by the 2010s, lawyers widely considered their profession in crisis. The growth in size of firms, their revenue, and their profits per partner had been strong. Yet uncertainty infused the model. The authors of a Harvard Law School essay about the ethical responsibilities of lawyers wrote: “There is widespread agreement that the legal profession is in a period of stress and transition; its economic models are under duress; the concepts of its professional uniqueness are narrow and outdated; and, as a result, its ethical imperatives are weakened and their sources ill-defined.”12 Firms obsessed over profits per partner even as overall demand for legal services overall was falling, a drop that accelerated after the 2008 recession. “Short-term economic goals seem to have overwhelmed the ethical imperatives and duties, resulting in widespread public mistrust of lawyers as a profession,” they continued.
A symbiotic relationship developed between Big Law and the Department of Justice. The way government prosecuted corporate crime helped transform how private firms conducted their practice and their business. Big law firms in turn began to change how the government approached corporate investigations and prosecutions. The Department of Justice became a way station, a post-(law) doctorate course of study, a résumé builder for future partners of prestigious law firms. During the Obama years, the trend became only more pronounced. The transformation began when the government began to push to change corporate culture, not simply to punish individuals. The SEC’s Stanley Sporkin had first pioneered the cooperation regime in the 1970s, but by the 2000s, regulators across the government—not just the Justice Department and the SEC—offered the cooperation-for-leniency bargain. Corporations hired law firms to conduct internal probes. One-off representations of individual criminal executives were not going to be an ongoing moneymaker. Internal audits, on the other hand, were. They employed many more lawyers and associates. And a large corporation might discover the need for another internal probe in the future.
Covington & Burling did its share of internal investigations. Adelphia, the cable company embroiled in post-Nasdaq-bubble-era accounting fraud, and the nonprofit United Way of New York City, which had been rocked by several instances of executives stealing from the charity, both retained Covington to conduct reviews.13 In 2009 the mortgage giant Freddie Mac hired the firm to conduct a probe into whether its own lobbying campaign had helped quash new regulations on the company in the lead-up to the financial crisis.14 When Hewlett-Packard needed to look into allegations that its CEO, Mark Hurd, had sexually harassed a former company contractor in 2010, the board hired Covington.15 But the firm did not come close to dominating the business. Other major firms also had lucrative practices.
“The law treats the corporation as both criminal and cop, and uses the corporation as a vehicle for detecting, proving and punishing business crime,” writes Samuel Buell, the onetime Enron and Arthur Andersen prosecutor who is now a Duke University School of Law professor, in his book Capital Offenses: Business Crime and Punishment in America’s Corporate Age.16 The self-policing system has arisen in an ad hoc fashion, unplanned and little questioned, with far-reaching consequences for the ability to bring top executives to justice.
Before long, there began to be something of a chicken-and-egg question. A symbiotic relationship between the law firms and the DOJ and SEC arose. It became no longer clear whether the Department of Justice pushed investigations that turned out to be lucrative for the white-shoe big law firms or whether big law firms nudged prosecutors into conducting the types of investigation that required lucrative internal probes. The evolution could be seen in Foreign Corrupt Practices Act cases. Sporkin, who’d helped get the FCPA passed in 1977, had launched a revolutionary expansion of what a regulator could do. He wanted to police American corporations’ moral behavior. His actions, coupled with his solid working relationship with the Southern District, succeeded.
After Sporkin, through the 1980s and 1990s, prosecutors put foreign bribery cases aside. Initially, they retained a bad smell from the Sporkin criticism. Three decades on, the Department of Justice set about reviving FCPA actions, starting around 2005. The department scored some necessary and important successes. In December 2008—predating the Obama administration—Siemens, the German industrial conglomerate, entered into the largest-ever FCPA settlement, at $800 million.17
In his first year as the head of Main Justice’s criminal division, Lanny Breuer seized on foreign bribery cases. In 2009 Breuer and company appeared to worry that they didn’t have any financial crisis prosecutions to parade in front of the public. Staffers started noticing that Breuer began to emphasize FCPA cases. He gave a muscular speech in November 2009, emphasizing how serious the Justice Department was about foreign bribery crackdowns.18 He revisited the topic on multiple occasions. The Justice Department scored at least one success prosecuting a high-level individual from a top company. Albert “Jack” Stanley, who ran the American engineering and construction company Kellogg, Brown & Root (KBR), which until recently had been part of Halliburton, pleaded guilty to bribing Nigerian government officials. In February 2012 he was sentenced to two and a half years, making him the highest-ranking executive to go to prison in an FCPA case.19
After Siemens, the following nine largest-ever settlements were reached in the Obama era, between 2009 and 2016. All but three companies—KBR/Halliburton, Och-Ziff, and Alcoa—were foreign,20 leading critics to wonder if the Department of Justice took a harder line on overseas entities or went relatively easy when investigations hit hometown companies. As one lawyer remarked, “It’s fucked up that one of our priorities is crime in other countries. It’s an area no rational person would put precious resources.”
The Justice Department had embarrassments as well. In February 2012 a US District Court judge in Washington, DC, threw out a foreign bribery case involving African officials that had been built on a sting. Later that year, the Department of Justice dropped its appeal in its foreign bribery case against Lindsey Manufacturing Co., a maker of electrical transmission equipment. The previous December, a US district court judge had thrown out the convictions of the company—the first under the FCPA law—as well as its president and CFO. In a stinging rebuke, the judge condemned the prosecutors for their misconduct, finding that they had allowed false testimony to the grand jury, withheld important evidence from the defense, and put false information into search warrants, among other violations.21
More significantly, the FCPA may have served as a distraction from the bigger, more important investigations of the financial crisis. And FCPA cases became a cottage industry among Washington law firms—even something of a racket. Joseph Covington (not a partner at Covington & Burling), who had headed the Justice Department’s FCPA efforts in the 1980s and then went into private practice advising corporations on foreign bribery, told Forbes magazine, “This is good business for law firms, this is good business for accounting firms, it’s good business for consulting firms, the media—and Justice Department lawyers who create the marketplace and then get [themselves] a job.”22 A new boom for the defense bar meant a new door to revolve. Mark Mendelsohn, who had revived the FCPA enforcement effort at the Justice Department, left in 2010, driven out by Breuer’s micromanaging. He began an FCPA practice at Paul, Weiss, the powerful firm, with an annual salary reported to be $2.5 million.23
The rise of the internal investigation had an unappreciated consequence. Setting up an enforcement regime based on cooperation and compliance hurt the government’s ability to conduct investigations on its own. Prosecutors look upon sprawling multinationals in despair. They believe they cannot take on giant corporations without their compliance and cooperation. The law firms do the investigating. Prosecutorial skills erode. The government has outsourced and privatized work—to the misbehaving corporations themselves.
As they conduct their probes of their clients, corporate lawyers are often studiously incurious. Big Law’s examinations lack rigor lest they risk putting their clients out of business by revealing the totality of the corruption. The investigations usually do not reach into the boardroom. The next time a corporate board is looking to hire a law firm, it will be reluctant to hire the one that just took out a chairman.
The law firms can’t help but know that the client has certain desires. A person or a business line needs protecting. The reports tend to reflect that agenda. With internal investigations, “the play is called beforehand,” says one partner for a major firm. In an internal investigation, there are dozens of judgment calls, not only about what to look at but how to interpret memos, emails, and decisions, and what to emphasize to the government with what phrases. The law firm understands the necessity of the appearance of an objective, unbiased, and thorough investigation. If there’s a fraud at a foreign subsidiary, the reports condemn the subsidiary in fiery terms to demonstrate that the company has not held back. In casting as much firepower onto the subsidiary as possible, the firm shields headquarters as much as is feasible.
Because sprawling corporation investigations are so complex and difficult, and because the defense is so robust and well funded, prosecutors fell in love with settlements. The prosecutorial saying “Big cases, big problems” has an addendum: “Little cases, little problems, and no cases, no problems.”24 The department embraced deferred prosecution agreements with a fever. The fines rose, but the consequences remained the same. Companies could break the law over and over and still avoid serious penalties such as getting barred from government programs or losing operating licenses. Often the settlements lacked any detail. The government did not spell out what the company had done wrong. The Department of Justice frequently didn’t appoint a monitor to oversee the agreements.
The Justice Department argued that the large fines signaled just how tough it had been. But since these settlements lacked transparency, the public didn’t receive basic information about why the agreement had been reached, how the fine had been determined, what the scale of the wrongdoing was, and which cases prosecutors never took up. How could the public know how tough they were, really?
Moreover, one of the benefits of writing a gigantic check was that the company’s lawyers could negotiate the findings to avoid calamitous civil collateral consequences. The Justice Department would furnish a draft agreement. The bank and its lawyers would request changes and negotiate, stripping out words that plaintiffs’ lawyers would seize upon. The deferred prosecutions became stage-managed, rather than punitive.
As a matter of course, corporations pledged cooperation to the government as it conducted follow-on investigations into individuals after signing the agreements. But prosecutors almost never went on to prosecute individuals. Through the 2000s—with the Enron reversals, the Arthur Andersen backlash, the Thompson memo rollback, the KPMG case, the Bear Stearns trial losses—prosecutors began to focus less on investigations of individual executives. All the changes moved in one direction: to help big corporations and their top officials.
Investigations of companies are different from investigations of individuals. They run on separate tracks, at different speeds, for different lengths. If prosecutors are thinking from the outset (even subconsciously) that they are going to reach some kind of settlement with the corporation, they focus less on top executives. Investigations of top executives are more time consuming. They require better evidence, since the executives are much more likely to go all the way to trial rather than plead guilty. An executive can go to jail. A company cannot.
Prosecutors have a choice: they can work for years on a prosecution of individuals, who are going to fight through the trial because they have nothing to lose. Or the government attorneys can negotiate with a corporation, which must come to the table. When defense attorneys come to that table, they ruefully attempt to convince the government that no one executive—especially one at the top of the organization, with thousands under his or her purview—knew the full picture of the wrongdoing. They remind the government that in court it will be difficult to prove beyond a reasonable doubt that any individual knowingly and intentionally broke the law.
Of course, not all lifetime public servants were tough and not all candidates for the revolving door were weak, as defenders of the status quo pointed out. The common argument, echoed by every prosecutor, is that prosecutors have every incentive to show how tough they are. The bigger the takedown, the plumier the white-collar defense job that awaits. A corollary argument is that big law firms seek prosecutors for their trial experience, so prosecutors have every motivation to get some. But those arguments neglect how deferred prosecution agreements come into being and distort the incentive structure.
With deferred prosecutions and corporate settlements on the rise, new motivations have arisen. Big law firms may have once hired prosecutors because of their trial experience, but that is less and less true. These days, almost every defendant opts for a plea bargain rather than a trial. In federal criminal cases in 2015 (the vast majority of which were street crime), more than 97 percent of defendants pleaded guilty. The number of trials is dropping from even a few years ago. There were about 2,200 federal criminal trials in 2015, down almost 30 percent from just five years earlier.25 Again, only a fraction of those were white-collar cases, and most of those covered small-time white-collar crime, not crime at large corporations.
As there have been more settlements and fewer trials, trial skill has become less valuable. What Big Law seeks now is an ability to negotiate the mega-settlements and the inside knowledge of the institution and the government hive mind, to glean what constitutes cooperation for the Justice Department and what settlement it would deem a win.
During settlement negotiations, the prosecutors want to appear tough to the defense lawyers on the other side of the table. They want to dazzle them with their knowledge of legal precedent, mastery of details, and bargaining skills. But young prosecutors also want their adversaries to imagine them as future partners. They want to be seen as formidable but not unreasonable. They want to demonstrate that they are people of proportion.
Even the rare prosecutions of individuals have become gamed by the defense bar. White-collar investigations of individuals have a ritualized gentility. Prosecutors call it the “dance.” If they want to question a top corporate officer, they will typically first approach the executive’s defense lawyer. These executives hire defense attorneys who are the prosecutors’ idols and mentors; seasoned lawyers from the best law firms who are legends in the office where the prosecutors now work.
The defense lawyer will ask the prosecutor, who is usually significantly younger and less experienced, whether his client is a witness, subject, or target of the probe. There is an unwritten honor code among the defense and prosecution bars: they expect that the other won’t mislead them (and are ethically barred from deceit). Then the lawyer will ask what the prosecutor wants to question the client about, and the prosecutor will tell him or her. The prosecutor may show the defense evidence that they have accumulated that the executive might know about. After this show-and-tell, the defense lawyer will request to come in alone, without his client, to discuss the case. The meeting is called a “lawyer proffer.” The prosecutors will discuss the investigation, the issue at stake, and the evidence. Prosecutors almost never interview targets directly. For subjects and witnesses, only after all this waltzing will the defense lawyer bring them in for voluntary interviews. They are not under oath.
Prosecutors who push too aggressively court social discomfort, and few young assistant US attorneys are willing to do so. Young Justice Department hires are typically products of elite American educational institutions. They tend to be among the most ambitious students, their youths given over to endless hours slaving to achieve the highest grades, to please mentors and tutors, to get into the best middle schools, high schools, colleges, and law schools. Educators have begun to worry about this generation of students, which has been asked to learn more at an earlier age in an era of economic insecurity and heightened competition. They have “little intellectual curiosity and a stunted sense of purpose,” as William Deresiewicz, the author of Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life, put it. The students may be high achievers, but they lack imagination and an appetite for risk. A legal career has become the reliable route to an upper-middle-class life, analogous to working at IBM in middle management in the 1950s.
The top law students’ hard work and sacrifices land them prestigious jobs at the Department of Justice. At that point, then, their formula for success has altered. They are not trying to please the powerful. If they do their job, they will displease them. To prosecute those sitting in corporate boardrooms, the young government litigators must become class traitors, investigating and indicting people very much like their mentors, peers, and friends. 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 Qaeda or a crooked politician. A corrupt politician excites in upstanding prosecutors a sense of outrage. By contrast, a well-mannered and highly educated executive seems like someone who wouldn’t knowingly do something wrong.
“It’s relatively easy to get corporate pleas and very hard to get convictions of individuals—and the combination is toxic,” says David Ogden, who served as the deputy attorney general under Obama. “The department has tremendous leverage and power over corporate entities. It is able to get company pleas without fully developing a case or taking a risk of a loss in court—just by threatening them. That’s bad. That rewards laziness. The department gets publicity, stats, and big money. But the enormous settlements may or may not reflect that they could actually prove the case.”
Meanwhile, the incentive structure was changing outside the Justice Department as well. In the mid-1990s a prosecutor made about $100,000 and could live (though not lavishly) in New York or Washington. A top assistant prosecutor at the Southern District of New York or Main Justice today makes around $150,000 a year. In 2016 the government scale topped out at $160,300.26 A top partner at a good firm can easily make $3 million to $4 million a year. In the meantime, the cost of living in the nation’s most coveted and powerful cities has skyrocketed. A prosecutor’s salary has become more difficult to live on, while in private practice a partner’s income has dramatically outpaced inflation.
The Department of Justice needs diversity, but not just in the way the term is commonly understood in American society. The department needs geographic diversity: to hire from top law schools all over the nation and to break the hold that coastal elites from only the top institutions have on open positions. The department needs age diversity, so that a prosecutorial job is no longer a résumé booster for a future white-collar defense partnership but instead is a place that a retiring partner from a prestigious law firm can go to perform public service. They need to seek a diversity of experience, from class action and trial lawyers, from consumer protection lawyers and public interest lawyers. All these changes could help break the dominance that the defense bar holds over the pocketbooks and the imaginations of Department of Justice employees.