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.