Justice Dept. Talks Tough on White-Collar Crime — Ends “Too Big to Jail”

In a memorandum issued on September 15, 2015, Deputy Attorney General Sally Quillian Yates declared an end to the U.S. Justice Department’s historical leniency on white-collar crime, repudiating the so-called Holder Doctrine — also known as “Too Big to Jail.”

The Holder Doctrine grew out of a June 1999 memorandum written by Eric H. Holder Jr., who at the time served as Deputy Attorney General in the Clinton Administration. Holder later became U.S. Attorney General under President Obama.

Although Holder never recommended leniency for corporate wrongdoers, he instructed prosecutors to consider the “collateral consequences” that could result from pursuing criminal charges against large corporations — and, by extension, the bigwigs who run them. The instability caused by such prosecutions could end up harming “innocent third parties” such as shareholders and employees, he warned; over time, this fear extended to possible damage to the U.S. economy, especially in the case of financial institutions.

The Holder Doctrine was followed in the George W. Bush era and through much of the Obama Administration, often resulting in large financial payments by corporate wrongdoers — but generally no criminal convictions or prison time.

Under the new Yates approach, by contrast, corporations and their executives will no longer be shielded from criminal liability.  In her memorandum, Yates noted that “one of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing.”

She added, “Such accountability is important for several reasons: It deters future illegal activity, it incentivizes changes in corporate behavior, it ensures the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.”

Since the financial crisis of 2008, Justice has prosecuted few executives and corporate wrongdoers.  Under Yates, change is likely.  Pursuant to her memo, “Any [ ] release of criminal or civil liability due to extraordinary circumstances must be personally approved in writing by the relevant Assistant Attorney General or United States Attorney.”

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