Washington, DC
~
Wednesday, October 25, 2017
Remarks as prepared for
delivery
Thank you, Lisa, for that gracious introduction. Good
morning. I am honored to be here with so many respected business leaders,
attorneys, public officials, and scholars.
At a conference that will feature many complaints about laws
and litigation, I am glad to be an early speaker. As the day proceeds, the
chances increase that you will reach the same conclusion as Dick the Butcher in
Shakespeare’s play, Henry VI. The Butcher famously proclaims, “The first
thing we do, let’s kill all the lawyers.”
I think Shakespeare intended for that remark to be ironic.
Dick the butcher is not a businessman upset about overregulation. He is a
villain scheming to take over the government.
Shakespeare’s point is that without lawyers, nobody would
need to follow the law.
That would be good for criminals like Dick. But it would be
bad for business!
The rule of law is essential to commerce. It allows
businesses to enter contracts, make investments and project revenue with some
assurance about the future. It establishes a mechanism to resolve disputes, and
it provides some degree of protection from arbitrary government action.
The rule of law is not just about words on paper. It depends
upon the character of the people who enforce the law. If they uphold it
faithfully, the result will be a high degree of consistency and predictability.
Those features build public confidence, and allow our nation to thrive.
The rule of law is not just a feature of America. The rule
of law is the foundation of America.
One of the finest defenses of the rule of law appears in Robert
Bolt’s brilliant play about Sir Thomas More, A Man for All Seasons. In Bolt’s
version, More defends the rule of law in an argument with his son-in-law,
William Roper. Roper is angry that More would give the benefit of the rule of
law even to the Devil himself.
Using trees as a metaphor for laws, Roper insists that he
would cut down every tree if it were necessary, in order to destroy the Devil.
More replies, “Oh? And when the last law was down, and the
Devil turned round on you – where would you hide, Roper, the laws all being
flat?
The point is that if we permit the rule of law to erode when
it does not directly harm our personal interests, the erosion may eventually
consume us as well. The rule of law is not self-executing. If it collapses – if
the people lose faith in the rule of law – then everyone will suffer.
President Trump honors that principle by nominating judges
who “administer justice without respect to persons,” and by appointing
Department of Justice officials who defend the rule of law.
The rule of law is essential for liberty. And it is good for
business.
In 1925, President Calvin Coolidge famously declared that
“the chief business of the American people is business.” The remark
fairly may be criticized as incomplete, but it encapsulates Coolidge’s view
that the government is responsible for promoting prosperity. A stable
environment allows investors, innovators, and manufacturers to provide the
goods and services that sustain us and improve our lives.
Americans of the founding era understood that good
government and private enterprise should be mutually reinforcing. The
American Revolution in 1776 was not just a political revolution. It was also an
economic revolution. The movement included mercantilists, farmers, shopkeepers,
and other ordinary men and women who banded together to accomplish something
extraordinary, provoked in large part by excessive regulation.
The colonists were angry about burdensome tax laws.
They were upset about restrictions on their ability to settle and develop the
western frontier. They were concerned about unfair trade policies.
With help from the Boston Chamber of Commerce, they engaged
in a major public protest in December 1773. That protest became known as
the Boston Tea Party. It was a critical moment in our nation’s path from
monarchy to freedom.
President Trump is mindful about the importance of promoting
entrepreneurialism and avoiding unnecessary interference in law-abiding
enterprises. Under Attorney General Jeff Sessions, the Department of
Justice is doing its part to promote an environment in which businesses can
thrive.
Our Department, along with other cabinet-level Departments
and government agencies, is implementing a series of regulatory reform efforts
to reduce regulations and to control costs. Through Executive Orders
issued earlier this year, the President directed us to create a Regulatory
Reform Task Force.
Regulation always seems to increase over time. It has been a
one-way ratchet. President Trump developed a simple and innovative way to
reverse the tide. He issued an Executive Order providing that for every new
regulation we propose, we should identify two regulations for repeal.
That process is underway.
We know that there are many regulations that provide little
or no benefit, particularly when weighed against the confusion and disruption
they introduce.
The President ordered us to identify regulations that
inhibit job creation; that are outdated, unnecessary, or ineffective; or that
impose costs that exceed benefits.
The President’s directives also have an impact on new
regulations. Some regulations may be timely and appropriate. In
developing them, however, federal agencies are being encouraged to simplify
rather than complicate the regulatory landscape.
My current position makes me more sensitive than ever to the
challenges this landscape creates for organizations. The Department of
Justice is not a business, and its mission differs in key respects. But
many of the issues we confront are familiar to anyone who works in or around a
large corporation.
The Deputy Attorney General is similar to a chief
operating officer, and our Attorney General serves as the chief executive
officer of the Department of Justice.
We manage an organization of 115,000 employees.
Department personnel and facilities are located in every state and territory,
and in many foreign countries. In addition, we work with tens of
thousands of contractors.
The Department encompasses many divisions and agencies,
which resemble business units and corporate functions. We strategize with
each of these components about how to better serve the American people.
We worry about how to improve organizational efficiency, and how best to manage
our budget.
I appeared before two congressional committees a few months
ago to testify in support of the Department’s $27.7 billion budget
request.
My teenage daughter was fascinated when she heard the news
about the appropriations hearing.
She asked me, “Dad, did you ask Congress for $28 billion?”
“Yes, I did,” I replied.
“Well,” she said, “when do you find out whether they will
give you the money?”
The answer is: Not right away. It can take some
time. This uncertainty adds a layer of complexity in implementing the
Department’s policies and programs.
The challenge is somewhat similar to questions facing
corporate executives and small business owners all around the country.
They must make decisions about product sourcing, inventory, personnel, and
every other daily business problem without assurances that economic projections
will prove accurate.
Another thing that we have in common with corporate America
is our duty to protect our brand – to safeguard the integrity and defend the
reputation of the Department of Justice. That can be difficult in government.
People are free to write stories and appear on television shows and blatantly
lie about us.
One of the unique challenges in the Department of Justice is
that our duty to safeguard the integrity of the institution obliges us to play
by the rules, even when our critics do not obey any rules.
We take an oath of office that requires us to follow the
rules.
An oath is a serious matter. It used to be a matter of life
and death. In the year 1535, Sir Thomas More was executed for refusing to swear
an oath to King Henry VIII. In Robert Bolt’s play, A Man for All Seasons, More
explains, “When a man takes an oath, … he’s holding his own self in his hands.
Like water. And if he opens his fingers then, he needn’t hope to find himself
again.”
Our oath of office is an obligation. Robert Jackson was one
of our nation’s most respected Attorneys General. In 1940, Jackson said that a
prosecutor must remain “dispassionate, reasonable and just,” and should refrain
from participating in “the machinery of practical politics.” That is very sound
advice for prosecutors.
The Chamber of Commerce does need to worry about practical
politics. I empathize with the frustration your members feel about the many
federal regulations and policies that govern their activities. Some are
longer than they need to be; some are internally inconsistent; and others are
needlessly bad for the marketplace.
In the Department of Justice, our employees need to
understand and abide by regulations, guidelines and policies. Clear
policies promote consistency across the Department’s many offices and tens of
thousands of decision-making employees. Consistency promotes fairness and
enhances respect for the rule of law.
But the Department’s own internal policies are spread among
various sources. That diverts precious time and resources away from fighting
crime. It also makes it more difficult to achieve consistency.
We have manuals, memoranda, speeches, and articles restating
and interpreting the policies. And every time a Department official speaks, it
generates speculation and commentary about how the remarks affect the policies.
Another challenge is that there are many outdated policy
memos floating around. Their status as guiding policy is not always clear,
particularly to people outside the Department.
And too often, Department policy statements use three
sentences to say what could be said in one. To paraphrase an observation
attributed to many a great author: It often takes more time to write a shorter
memo.
A man once asked Woodrow Wilson, “How long does it take you
to prepare a ten-minute speech?”
He replied, “Two weeks.”
“What about a one-hour speech?” the man queried.
Wilson said, “One week.”
The man then asked, “How long would it take you to prepare a two-hour speech?”
Wilson answered, “I’m ready now!”
I prefer to give short speeches, and write brief memos.
In order to promote efficiency and consistency in the
Department of Justice, my office is working on a project to collect outstanding
policy memoranda and incorporate them, where appropriate, into our operating
manual. And we will keep it concise.
Let me turn from the topic of writing rules and speak about
our mission of enforcing rules.
Our client agencies, investigators and lawyers may not
always agree with you about the wisdom of particular burdens on private
industry, but we are committed to enforcing the law fairly and reasonably.
I have no breaking news for you today about the Department’s
corporate fraud policies, but I do want to share with you my view about how to
implement them.
Corporate enforcement and settlement demands must always
have a sound basis in the evidence and the law.
We should never use the threat of federal enforcement
unfairly to extract settlements.
We should reward prompt reporting of wrongdoing.
And we should ensure that our policies and practices focus
on deterrence, which is the primary goal of law enforcement.
I reviewed the agenda for today’s program. The unifying
theme appears to be the impact of emerging technologies, and the novel legal
questions they generate.
Those issues are a major focus of attention within the Department
and other federal agencies, and in our dealings with state and local law
enforcement partners. They are also fertile areas for better
public-private cooperation.
Unmanned aircraft technology is one issue receiving a lot of
our attention. Drones have the potential to revolutionize commerce.
They also can help us evaluate crime scenes and disaster
areas. The devastating hurricanes in Texas, Florida, and Puerto Rico, and
in monitoring the wildfires in California, are examples of situations where
drones may be of particular value.
But drones create new threats to public safety. They
can be used maliciously to drop contraband into prisons, and to attack soldiers
on the battlefield. They can be used to invade the privacy of
citizens.
Balancing the promises of drone technology with the perils
of its misuse will test law enforcement and our legal system. The
Department seeks to collaborate with Congress and with the Federal Aviation
Administration to identify legislative and regulatory paths forward.
Cybercrime is another hot topic. Our investigators and
prosecutors work tirelessly to prevent and detect transactions that take place
on illicit marketplaces known as the “dark web.” Those platforms allow
for illegal commercial exchanges involving narcotics, weapons, child
pornography, and activities like human smuggling.
To law-abiding businesses whose products and services are
not concentrated in the technology industry, the so-called dark web may seem
far removed.
The dark web is populated by computer hackers and
transnational criminal organizations, among others. The dark web is the
place these criminals go to sell their illicit wares and to remain hidden from
authorities.
New technologies help dangerous individuals conceal
themselves in other ways, too. Instant message applications that use
end-to-end encryption by default have become a commonplace tool of criminals
and terrorists.
The Department is doing its part to fight these threats, and
we will keep fighting them.
Earlier this year, we worked with law enforcement
counterparts in Europe, Canada, and Thailand to coordinate a takedown of the
largest dark market on the internet.
In March, we indicted two officers of the Russian state
security services. They were charged with stealing information from at
least 500 million email accounts and conducting economic espionage, among other
crimes.
We need companies to commit to working with us to address
these perils.
Despite the Department’s investigatory tools and our efforts
to build relationships with private enterprise, some companies are reluctant to
report misconduct to law enforcement.
We recognize that managers must consider many factors in
deciding whether to voluntarily disclose a problem to law enforcement.
There are legal, financial, and other concerns.
Companies should be fully informed about the benefits that
federal authorities can provide to companies that disclose cybercrimes and
hacking.
The Department can move forward not only to punish
wrongdoers, but also to identify and implement policies that deter future
crimes.
The federal government also is uniquely situated to
coordinate with other agencies and authorities in pursuing international
diplomacy, economic sanctions, and intelligence operations. Those
strategies can target the source of the problem, rather than merely the
symptoms.
In some instances, cybercrime is perpetrated or supported by
foreign nation-states. To successfully fight those threats, corporate
America needs the federal government on its side.
Proactive and constructive interactions between business and
government also contribute to a company’s good will and reputation.
Attorney General Robert Jackson described reputation as “the shadow cast by
one’s daily life.” A company’s compliance efforts and the tone set by its
leadership, counsel, and other representatives reflect corporate values and
carry collateral consequences.
A company’s willingness to self-report and remediate
problems also informs the Department’s evaluation of the company when its
conduct is at issue.
Compliance measures and cooperation might be steps that go
beyond the minimum requirements of law. But like our Department, you
should be thinking about the long-term.
You need to protect your brand.
The Department notices and evaluates carefully whether a
corporate compliance program is applied faithfully.
If a company delays in disclosing a data breach or other
potential cyber incident, that delay may prevent other innocent parties from
taking steps to protect themselves.
It is important to make note of the progress of the business
community in developing and augmenting corporate compliance programs. The
sophistication of compliance measures and tools continues to improve.
But no measures will be successful in deterring all
criminals.
This is why the Department will not flag in its commitment
to investigating and pursuing corporate fraud, whether American companies are victims,
or perpetrators.
Prosecutors in our Foreign Corrupt Practices Act unit have
obtained convictions in three criminal trials since May. On the civil
side, our attorneys recovered more than $3.6 billion over the past year under
the False Claims Act, and more than $5 billion in settlements related to
securities fraud.
Major investigations underway within the Antitrust Division,
the Tax Division, and other components will help ensure that businesses that
compete unfairly do not gain an advantage over those that follow the
rules.
All those efforts are complemented by important policymaking
initiatives.
We are establishing a Working Group on Corporate Enforcement
and Accountability, which will offer recommendations on promoting individual
accountability and corporate cooperation. We are also reviewing the
mandate of the Financial Fraud Enforcement Task Force to evaluate whether it
continues to meet current needs.
The Department is evaluating how to reward companies that
demonstrate true commitment to upholding the rule of law.
I want to conclude with an observation made by George
Washington. In a letter sent in 1784, Washington wrote that “[a] people [
], who are possessed of the spirit of commerce, who see, and who will pursue
their advantages, may achieve almost anything.”
The American people certainly are possessed of the spirit of
commerce. With your support, the Trump Administration will be a strong partner
in allowing that spirit to flourish.
Thank
you for your attention.
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