It is no secret that top Department of Justice officials in Washington may occasionally be at odds with local prosecutors over charging or investigatory decisions made in U.S. Attorney offices around the country. Indeed, DOJ Criminal Chief Leslie Caldwell was in the news last week for remarks she made during a Federalist Society luncheon in Washington, D.C. Speaking as part of a panel discussion on criminal overreach, Caldwell relayed stories of Main Justice intervening to squelch overly aggressive would-be prosecutions, and suggested that a lack of experience and oversight might be to blame. Caldwell’s remarks were widely reported, but her candor was not universally appreciated. In fact, Caldwell has since apologized to her “Friends and Colleagues” throughout the Department for “overreact[ing] to criticisms” raised by other panel members, “rather than defending the reputation of the entire Department.” Her mea culpa notwithstanding, Caldwell’s remarks confirm the existence of a safety net. Faced with an overly aggressive prosecution, targeted companies and individuals just may find an ally at Main Justice.
Of course, it’s important not to put too much stock in an appeal to the top brass. While feasible, an intervention and declination from Washington remains the far-and-away exception. But with that said, companies and individuals currently under investigation may have reason for some slightly renewed optimism. The transition from an Obama administration to a Trump one is certain to bring with it significant changes to DOJ—from the top on down. This means not only new people, but new enforcement priorities as well. Certain cases may find a more friendly audience—be it in the form of fresh leadership, or even just a new U.S. Attorney.
Precisely which cases those might be in a new administration, however, is difficult to predict. President-elect Trump’s nominee for Attorney General—Alabama Senator Jeff Sessions—is nearly two decades removed from his own career as a state and federal prosecutor, and his record in Washington is mixed. Several commentators have warned against reading too much into his reputation as pro-business. And there has been little indication, moreover, as to who might be tapped to fill out DOJ leadership. Suffice it to say this is an issue worth monitoring, and a strategy that may merit renewed consideration.