After 18 years at the Justice Department, and leading the criminal division during 2013 and 2014, Mythili Raman joined Covington & Burling’s white-collar crime and litigation practice in April.
She spoke to Julie DiMauro about aggressive enforcement, facilitation payments, deferred prosecution agreements, and her move to private practice.
JD: At the DOJ, you continued a crackdown on big banks and other companies engaged in bribery, fraud, money laundering, LIBOR manipulation, etc., that Lanny Breuer had started at the DOJ. Can we expect this trend to continue — with possibly even more high-ranking corporate criminals to be prosecuted?
MR: Yes, I think we can expect continued criminal enforcement in all of these areas. In the last several years, the Justice Department, and the Criminal Division in particular, made it a priority to step up financial fraud enforcement in a number of areas, including money laundering and overseeing very significant — sometimes global — investigations of market manipulation and Bank Secrecy Act violations.
I fully anticipate that those priorities will continue to receive significant attention in the years to come, and that the Department will continue to devote resources to those areas of enforcement.
JD: How do you counter the criticism that federal prosecutors who later defend clients for similar criminal acts are blurring the line between defense and prosecution? The DOJ has been criticized for not bringing any criminal charges against any Wall Street chief executive in the wake of the financial crisis. Is the DOJ-to-law-firm career trajectory a factor here?
MR: I was a prosecutor for nearly 18 years, and during my time at the Justice Department, I personally saw that both career prosecutors and the politically appointed leaders of the Department had a singular goal. That goal is to pursue criminal wrongdoing aggressively, without regard to how prominent the defendant might be or whether prosecutorial decisions could be second-guessed in certain quarters inside or outside the government.
And, in making those decisions, the Department was guided by two things — the law and the facts. When there is proof beyond a reasonable doubt that a crime was committed, those cases are brought. When there is no such proof, those cases are not — and should not be — brought.
That is the only responsible, effective and ethical approach to law enforcement.
JD: The FCPA is a model for the world as other countries implement their own anti-bribery legislation. Some countries even outlaw the facilitation payments that the FCPA allows, like the UK and Brazil. Do you think the facilitation payment allowance is confusing for companies, and how would you counsel a client regarding this aspect of the FCPA?
MR: I do not think the concept of a facilitation payment under U.S. law is confusing. But I agree that effective compliance in this area requires careful consideration of the varying legal regimes that could be applicable. With a carefully conceived approach, companies can effectively manage this issue to take into account differences in the law from one country to the next.
JD: Is there any chance the DOJ could make its FCPA-related declinations more transparent? Several members of Congress have tried to the the Department to provide more details about why enforcement actions never materialized. Do you think this would be helpful to companies?
MR: Over the last several years, the DOJ has made a significant effort to be even more transparent about its decision-making in foreign corruption cases. This has included issuing the FCPA Resource Guide, doing more to describe the reasons for its declination or enforcement decisions in pleadings and press releases, and posting its criminal resolutions — including deferred prosecution agreements — online.
But there is always more that could be done. I anticipate that the DOJ will strive to be as transparent as possible, consistent with the law, and taking into consideration the sensitivities that might exist for either law enforcement or the company in any particular case.
JD: Deferred and non-prosecution agreements might be efficient and help bring about more corproate cooperation, but the public has voiced some exasperation with the amount of them. Are they more useful than we think — and why?
MR: The Justice Department can and does use a number of different approaches to resolve criminal cases. Sometimes it brings charges against an entity and/or its employees, obtains guilty pleas from an entity and/or its employees, secures a DPA or NPA from an entity while requiring its continued cooperation and remediation, or declines to proceed altogether when the evidence does not support bringing charges.
The important point is that the criminal resolution in every case is targeted, effective and proportional.
Different facts and circumstances warrant different approaches and, in some instances, DPAs and NPAs can be entirely appropriate and can be an important way to secure continued cooperation, ensure continued remediation, and obtain an admission of wrongdoing, while at the same time minimizing harm to innocent third parties.
JD: Covington & Burling brings you and Lanny Breuer together, along with other ex-DOJ top officials, like Daniel Suleiman, Steven Fagell and James M. Garland. How will your experience inform your client representation, and what other factors drew you to the firm?
MR: Covington enjoys an excellent reputation for its exemplary and ethical lawyering, its diverse and vibrant practice, its commitment to pro bono work, and the collegiality among its lawyers and staff.
All of those factors drew me to the firm. And, of course, I was excited to work again with so many former colleagues whose lawyering I admire and whose friendship I value.
Julie DiMauro is the executive editor of FCPA Blog and can be reached here.