The U.S. Department of Justice has long incentivized companies in white collar cases to help prosecute their own executives—a marriage of the government’s power to bring corporate criminal charges with policies that reward self-disclosure and cooperation. In a series of recent announcements and corporate resolutions, DOJ has doubled down on these policies, detailing its expectations for how companies should cooperate.
But as executives prosecuted with their employers’ cooperation seek new ways to fight back, the resulting court decisions may offer a cautionary tale for companies, the government, and their counsel. Individual defendants in three recent district court cases have sought to turn the policies against the government—and against cooperating companies and their lawyers—arguing that DOJ’s reliance on the fruits of corporate internal investigations violates their rights against self-incrimination, to exculpatory evidence, and to conflict-free counsel.
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