The following is adapted from a speech delivered on July 19, 2015, aboard the Crystal Serenity, during a Hillsdale College cruise from Lisbon to London.
If you think about it, it makes sense that in America—the only nation in the world to define itself not by blood or land, but by a law, the Constitution—the government agency charged with enforcing that law, and enforcing the laws passed under it, would be called the Department of Justice. As such, the work of the Justice Department is highly important. It plays a fundamental role in our nation’s life, because its work has to do in one way or another with how honest, how fair, and how safe our country is.
That being said, I’m regretful to have to add that in a country where honesty, fairness, and safety are so strongly influenced by one department of government, over the past six years—largely because of that department’s work—our country has grown less honest, less fair, and less safe than it ought to be. Let me give you some examples.
Recently we hear a great deal about the prosecution of “evildoing” corporations, but not so much about the prosecution of individuals who are the alleged evildoers. Why is that? To be specific, a lot of what we hear with respect to corporations is not about prosecutions at all—it’s about “deferred-prosecution agreements” or “non-prosecution agreements,” agreements that extract enormous financial penalties. Indeed, the current Justice Department takes pride in setting record after record in terms of collecting these penalties.
Other attorneys general, myself included, made such agreements. But the penalties that have been extracted over the past six years are unprecedented. They involve numbers in the billions, and are of a scale that makes it appear that the Justice Department is acting as a profit center for the government.
Justice Department investigations begin by looking into claims, for example, of unlawful payments to foreign officials or of unsafe motor vehicles. Corporations often face disastrous collateral consequences simply from having charges brought against them, which is why they are often willing to admit to conduct that the government cannot prove, to pay enormous fines, and to accept the oversight of monitors. In return, the government agrees that no charges will be filed so long as the corporations remain on good behavior for some specified period of time. Charges are rarely brought against individuals, on the other hand, because individuals can be put in jail. When faced with this, people usually fight back—and when they fight back, they frequently win.
This process generates cynicism about the American justice system, as individuals go uncharged, billion-dollar penalties are assessed, and the ones who pay are not wrongdoers, but corporate shareholders and employees.