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On Tuesday, PBS aired a Frontline report, “The Untouchables,” examining the reasons federal prosecutors had not charged Wall Street executives over the 2008 financial crisis. The program featured Lanny Breuer, who heads up the U.S. Department of Justice’s criminal division, and on Wednesday, the Washington Post was reporting that he was leaving his job. The Post described Breuer’s tenure at the DOJ as “filled with controversy and high-profile prosecutions”—citing both the disastrous “Fast and Furious” gun-trafficking operation and the agency’s multimillion-dollar settlements with financial institutions in money-laundering cases. The report also weighed Breuer’s reliance on deferred-prosecution agreements for companies, citing criticism that “the use of such tactics amounts to a slap on the wrists of companies that have engaged in egregious behavior. Breuer, however, has argued that the agreements result in greater accountability for corporate wrongdoing.” The DOJ brought in $9 billion in corporate settlements during 2012 through deferred- and non-prosecution agreements. The Frontline documentary puts the Justice Department and Breuer’s division in an often-harsh light, citing a drop in prosecutions for finance-related crimes during Barack Obama’s presidency and the development of a “Too Big to Jail” approach to Wall Street executives. During an interview with Breuer for the program, he defended his approach, saying:

“. . . the reality is, if a Wall Street executive was involved in a transaction, and on the other side of that transaction was another Wall Street executive, and they both had sophisticated lawyers and they both had sophisticated disclosure documents, as much as the conduct is reprehensible . . . there was a level of greed, a level of excessive risk taking in this situation that I find abominable and I find very upsetting. But that is not what makes a criminal case. What makes a criminal case is that I can prove beyond a reasonable doubt every element of a crime. And if you can show that you disclosed in some document that your lawyers created that the risks that were created that you felt were disclosed in some form, then I cannot prevail in a criminal case. And I have a constitutional obligation not to bring the case.”

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