NACDL's 5th Annual Defending the White Collar Case Seminar - "Keynote Address: Lanny A. Breuer, Assistant Attorney General, Criminal Division, U.S. Department of Justice," Thursday, October 1, 2009

Guest Blogger:  Ivan J. Dominguez, Assistant Director of Public Affairs & Communications, National Association of Criminal Defense Lawyers

Keynote Address:  Lanny A. Breuer, Assistant Attorney General, Criminal Division, U.S. Department of Justice*

Assistant Attorney General of the Criminal Division Lanny A. Breuer traveled from Washington, D.C., to deliver a lunchtime address to NACDL’s 5th Annual White Collar Seminar at Fordham Law School in New York City.

Breuer, who was confirmed almost six months ago, repeatedly emphasized his admiration for the professionalism and commitment of career prosecutors. He shared his perspective that, as a general proposition, career law enforcement officials have an “abiding commitment to the highest standards of ethical conduct.” He also told of how he recently returned from Mexico City where he met with a U.S. resident legal adviser and said that it is his goal to meet all resident legal adviserss around the world. 

The focus of his talk was an overview of some of the DOJ’s, and specifically the Criminal Division’s, law enforcement priorities, stating that “the risks we face from white collar criminals have never been greater.” This is so, he said, because of the ever-growing sophistication of white collar criminals combined with a financial intervention by the government “on a massive scale…unparalleled in our history.”  “We’ve already seen egregious instances of fraud and abuse on the road to [economic] recovery,” he said.

Breuer specifically identified the “unprecedented amounts” that Congress has made available to facilitate recovery as giving rise to the government’s focus here. Indeed, he further explained that Congress has expressed its concern that government be vigilant as it guards against those who would take advantage of the $787 billion American Recovery and Reinvestment Act. In order to accomplish its goals in the face of these challenges, Breuer explained that his mantra is that the Department be “smart, nimble and focused” in fighting white collar crime. Specifically, throughout his speech he emphasized (i) the importance of interagency cooperation and collaboration and (ii) the value of using vast storehouses of data to drive the Department’s work.

Breuer also individually explored the following “white collar crime priorities”: health care fraud, financial fraud (including mortgage fraud) and public corruption.

On the topic of health care fraud, which he called “particularly severe,” Breuer said that much of the $800 billion dollars per annum that the government spends on Medicare and Medicaid is lost to “waste, fraud and abuse,” which he estimated at a minimum of 3% of those expenditures. In this context, interagency efforts are being pursued in what he characterized as an “innovative, data driven approach.” For example, pointing to multiple recent indictments in Detroit, Mich., he said that government investigation is driven by data such as information about which geographic areas have higher Medicare billing. He promised that such enforcement action will be spreading to new cities, explaining that government data shows that Medicare billings go down after the strike force goes into cities.

“Nowhere do you see [interagency] collaboration as much as in [financial fraud] arena,” Breuer said. In the area of mortgage fraud, he said that the Department is focused on those exploiting the most vulnerable homeowners among us.” He pointed to the National Mortgage Fraud team’s access to a “warehouse” of FBI data to aid in their work, explaining that the team at the FBI has developed sophisticated techniques with the data and that law enforcement is using this intelligence to combat mortgage fraud in “a very targeted” way.

On the specific subject of the $787 billion American Recovery and Reinvestment Act, Breuer pointed out that more than 20 federal agencies are slated to receive these funds. Early detection “is absolutely critical,” he said, explaining that the Inspector General is monitoring where the recovery money is going. He also spoke of how future public access to the data concerning where these funds are going will enable the government to enlist the aid of private citizens, journalists and others in monitoring whether the money is going where intended.

As a general proposition, Breuer emphasized that all Criminal Division prosecutors must discuss the possibility of forfeiture in every case because “history has taught us time and again that forfeiture is a powerful tool.”

The final specific area of enforcement focus that Breuer discussed was public corruption. He explained that the Department will continue to pursue violations of the Foreign Corrupt Practices Act (FCPA) and to know that the Department does not simply react to disclosures. “As in many other areas, the Department is being proactive and aggressive,” he said, adding that it is using all available law enforcement tools on this front. Breuer “fully expects” that FCPA prosecutions will continue to rise, as well as the level of cooperation with foreign officials. He also said that there will be a future focus on international organized crime, in which the Federal Trade Commission will also play a role. He emphasized that the Department strives to be “careful and deliberate,” but will bring cases whenever they are “deserved,” with a “consistent, non-partisan and absolute highest degree of professionalism and ethics.”

Upon concluding his presentation, Breuer made himself available to answer questions from the audience. Those questions ranged from topics such as private contractor corruption in foreign wars to renditions and torture. One questioner asked about whether the enforcement focus is disproportionately on smaller cases, “minnows” as she referred to them. Breuer said that is not the case, leaving all categories of potential wrongdoers on notice, adding, though, that “We are not going to charge you criminally if we have doubts about it.”

No subject, however, generated as many questions as that of prosecutorial violations of Brady disclosure obligations. While he acknowledged that “sometimes there are mistakes....They are not meant with intent,“ adding, “I don’t accept that there is a massive abuse of Brady" afoot. He said that the Attorney General is currently considering an internal memo on the broad subject of federal discovery obligations.

Finally, there was the question about rendition- and torture-related allegations concerning Alberto Gonzales and other former administration officials. Breuer said that those matters are “clearly the province of the Independent Counsel” and that the Criminal Division is not dealing with those issues.

During the question and answer period, Breuer explained that the Department is committed to indigent defense, re-entry programs and alternatives to incarceration. In addition, he re-emphasized the Attorney General Holder’s recognition of the terrible effect of the crack/cocaine disparity on minority communities. He also said that he welcomes an “open dialogue” with the criminal defense bar.

*Biography: Lanny A. Breuer was confirmed as the Criminal Division’s Assistant Attorney General on April 20, 2009. Mr. Breuer began his career in 1985 as an Assistant District Attorney in Manhattan, where he prosecuted various criminal cases, including murder, gang violence, armed robbery, child abuse, burglary, white collar crime and larceny. In 1989, he joined Covington & Burling LLP, where he became a Partner in 1995 and served as co-chair of the White Collar Defense and Investigations practice group. At Covington, Mr. Breuer specialized in white collar criminal and complex civil litigation, internal corporate investigations, congressional investigations, antitrust cartel proceedings, and other matters involving high-profile legal, political, and public relations risks. From 1997 to 1999, Mr. Breuer left Covington to serve as Special Counsel to President William J. Clinton. He has been recognized by numerous publications as a leading litigator, and he is a fellow of the American College of Trial Lawyers. Mr. Breuer received his B.A. from Columbia University in 1980 and his J.D. from Columbia Law School in 1985. (Source: U.S. Department of Justice Web site).

(ijd)