ABA White Collar Conference: Political Commentary vs. Best Practices

By: James Trusty

This year’s ABA White Collar conference in San Diego displayed a good number of the usual suspects in these week-long educational echo chambers: smug moments of schadenfreude when panelists smirk at Trump administration missteps, not-so-subtle calls to arms by former prosecutors who hoist the “Rule of Law” banner, and former Southern District of New York (SDNY) prosecutors touting the superiority of their old office, even while acknowledging the frequent need for “corrective action” (aka reversal) by the courts. Dig deep enough, however, and you can find a couple of practical nuggets amidst the unhelpful politicking.

New DOJ Policy on Corporate Disclosures

The conference began with a nearly contemporaneous development that Deputy Attorney General Blanche had just issued an official policy statement regarding corporate disclosure that shuts down other incarnations of those policies held by Criminal Division sections and the recently promulgated version in SDNY. While no speaker had a real opportunity to incorporate the memo into their comments, there was one interesting suggestion that arose from a speaker’s prior engagements with the Office of Foreign Assets Control (OFAC). Rather than make an early disclosure that risks misstatement because of the inability to internally investigate at light speed, consider letting the prosecuting office know that you think there may be an issue and that you will return with details after completing an internal investigation. The obvious benefit is the ability to claim early reporting, which is clearly valued by an administration dangling the possibility of a declination. The mollifying approach also eliminates the possibility of being accused of a false statement, because the substance of the investigation waits for another day. Obtaining occasional tactical tips like this from experienced panelists was the most productive part of this yearly pilgrimage.

DOJ’s New Fraud Division

The other interesting aspect of these presentations is when a truly new policy is rolled out by DOJ and seasoned practitioners weigh in with early, admittedly speculative, analysis. The post-Minnesota fraud creation of a new Fraud Section that apparently answers to the Vice President spawned plenty of questions. Will it be like an Enron Task Force – with nationwide authority to bring its cases wherever it sees fit, or will it be a group of subject matter experts who have to partner with U.S. Attorney’s Offices? Will they truly change the tradition of very limited connectivity between DOJ and the White House, or will the White House literally run criminal investigations?

The Rise of the “No True Bill” Declination by Grand Juries

Another emerging topic that drew some commentary was the newly rediscovered veto power of the grand jury. Specifically, the No True Bill decisions by grand juries in DC and the Eastern District of Virginia (EDVA). The DC no bills put to rest the old maxim that a prosecutor can get a grand jury to indict a sandwich, as a politicized DOJ employee who threw a subway sandwich at a police officer escaped a felony charge (and indeed, was later acquitted on the misdemeanor) and the politicians who encouraged military members to reject unlawful orders similarly won non-prosecution.

In EDVA, the grand jury rejected the procedurally puzzling re-indictment of former FBI Director James Comey and a turnabout-is-fair-play prosecution of New York AG Letitia James for loan application fraud. While most of the presenters seemed determined to enjoy the political fruits of the chaos, one panelist offered a more insightful comment about revisiting the concept of having a client testify before the grand jury. Federal prosecutors cannot force a target before the grand jury, but they are encouraged to allow a target to present sworn testimony if that target wants the opportunity. With grand jury nullification, yesterday’s malpractice might be tomorrow’s brilliant strategy.

A Missed Opportunity

One particularly disappointing component of the conference this year was the presentation about clemency. The speaker has demonstrated success in pushing for state and federal commutations of harsh sentences in drug cases, but she lacked any sort of guidance about negotiating the entirely new terrain of Trump Administration II. Worse, the “fireside chat” questioning was heavy on selling her book and light on explaining how to actually obtain a pardon or commutation. In describing her apparently limited contact with the current administration, the speaker never even mentioned the existence of – much less the role of—Pardon Czar Alice Johnson. Blame the conference organizers, not the guest speaker, but by suggesting the presentation would help practitioners navigate the new process of pursuing federal clemency, it proved a particularly unhelpful 90 minutes.

The High Price of Bias

The conference is apparently poised to return to Miami next year, with rumors of it permanently locating in that excellent venue. Meanwhile DOJ and the Trump Administration boycott this politically lopsided event, and apparently the panel including former Trump attorney John Lauro was loaded with emotion and disrespect when he had the temerity to criticize Biden-era weaponization of DOJ. At best, the recent history of the ABA Conference includes just a few nuggets of useful analysis and recommendations. At its worst, it is filled with hysterical or snarky anti-Trump panels with moderators stifling dissent. Look for an increasing number of long-time participants to sit out the imbalanced production or to show up for the sponsored happy hours without shelling out a couple of thousand dollars for the privilege of sitting in an echo chamber.