Dear Lanny (or, as I like to call you, Mr. Assistant Attorney General, sir) & Chuck,

Like any member of the public, I’ve been discouraged and disappointed by recent headlines in the press about FCPA prosecutions.  When I read things like “‘Foolish and Unprofessional’ Behavior Infected FCPA Prosecutions” in today’s FCPA Blog, or read about prosecutorial misconduct causing dismissals (even after guilty verdicts), or read about a massively publicized sting case reaching an ignominious end, or read about the Department bringing a case based on “gossip” where the main witness “knew almost nothing,” I feel bad, as a member of the public.

But I’m not just a member of the public.  I’m a former prosecutor, at the state and federal level.  I’m also an experienced FCPA practitioner.  And, for better or worse, I’m part of what I call the FCPA Commentariat.  I like to think this makes me particularly well-informed about FCPA enforcement.  This means, to my mind, that I have a special responsibility: I have to look at the facts of every case—and I’m constantly amazed at how many people are willing to criticize you without even trying to gather all the facts—make my own determination, and speak out, about both the good and the bad.

And, despite the thoughts of some, I’ve done both.  At the FCPA Business Roundtable, I echoed others in requesting that you make public your declination decisions.  I can’t understand why you don’t.  Obviously, the information needs to be de-identified.  But you already do that in your Opinion Releases.  Making more transparent your evaluation of compliance programs will only bring you benefits: from blunting the effort to create a legislated compliance defense to calming the business community who still maintain—rightly or wrongly—that they just want more guidance.

I’ve been critical of your failure to seek, in any case of which I’m aware, debarment from US government contracts as a penalty.  Why you’d leave that significant enforcement tool completely unused is beyond me.  Similarly, your history of structuring settlements for the apparent sole purpose of avoiding that penalty is unseemly at best.

I’ve also criticized particular settlements, most notably the Alcatel settlement.  I won’t write more because (a) I’ve already said everything I want to say on that and (b) I don’t want to aggravate myself and start ranting.  Because once I start, I would definitely start ranting again.  That settlement was so bad I can’t even think about it without getting angry.  How do you expect companies to stop bribing if you make bribery as profitable as it was for them….  Sorry.  See?

All that said, the commentary over the last two months has been over-the-top, wrong, mean-spirited, and, in some cases, just plain asinine.  I hope that you don’t forget that you’re doing G-d’s work.  I don’t harbor illusions that you’re going to stop bribery, but your work makes a positive difference.

Bribery is a blight on our moral universe.  It makes us cynical.  It does the most harm to the segment of the population able to handle it the least.  People dealing with crushing poverty should not have to pay money to get phone service, or police protection, or to avoid arrest on trumped-up charges.  Mothers should not have to grease the nurse to get their babies.  I’ve said it before, say what you will about FCPA enforcement priorities, but can we all get together on the idea that having to “grease the nurse” is bad, and should be stopped?  Roads are bad, bridges fall down, and there’s a general malaise that settles in, stinking of unfairness.

Plus, from a business perspective, it horribly distorts the markets.  It makes investment in people, products, and customer service unnecessary or irrelevant.  This directly harms consumers.

I hope you remember also that your failures get huge play in the press and via the Commentariat, but there have been many more successes than failures.  For every Lindsey case, there’re five Bonny Island cases.  For every Africa Sting case, there are Daimler, Panalpina, Bridgestone, Innospec and the individual Siemens indictments.  And yes, the ABB case too.  Nicola did an amazing job with that, all the way around.  Companies actively enhance their compliance programs because of what you do.

Your successes far outweigh your failures.  They’re not even in the same time zone.

And I take comfort that you take your failures to heart.  I don’t really know you at all, Lanny, but I’ve had the opportunity to hear Chuck speak many times, and have usually cornered him after each speaking engagement to speak with him myself.  He has always struck me, Lanny, as a guy who always wants to be a better prosecutor.  I can’t imagine the level of frustration he has to deal with when he hears criticism that is bereft of actual facts, and knows that he can’t respond.

So don’t get down, fellas.  My recommendation—not that you asked for it, but giving unsolicited advice is the province, even the duty, certainly the pleasure, of the commentariat—is to change the story.  Bring some solid, middle of the road cases.  We’re only 7 weeks into 2012, as strange as it seems.  At the end of the year, this will all be seen as a hiccup.

That said, you should also do some remedial work on file management and case preparation.  It’ll be a pain for the line prosecutors, but a little extra supervision for the next 6 months is the price you pay for making stupid mistakes that end up in a 2+2=7 equation.  You can’t help other people’s inability to add.  You can avoid giving them ammunition in the future.

And don’t forget to stay creative.  There’s a perfectly understandable impulse to only bring safe cases.  Once bitten, twice shy, as they say.  But resist that urge.  Even I recognize there won’t be another sting case for a long time, but wiretaps are still good evidence.  Bring another Travel Act case; that’ll scare the crap out of people.

And if you still feel down, just look at what’s going on in the SFO (today’s headline: Unshakable Fatalism at the SFO).  Misery loves company, and no one is saying the DOJ shouldn’t exist.  There’s always someone worse off than you.

Best Regards,

Howard