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Friday, 25 January 2013 09:21

The Covington & Burling Trio Overseeing the Department of Justice Criminal Division: An Injustice

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Let's start here, with a question from the website Wall Street Parade:

The public, and Congress, have a pressing need to question how a law firm that was cited by a U.S. District Court, an Appellate Court and the U.S. Supreme Court as playing a central role in coordinating the illegal activity of Big Tobacco – activity that callously harmed the health and welfare of both children and adults, ended up sending three of its lawyers to the top slots at the Nation’s highest law enforcement office.

Both Eric Holder, the U.S. Attorney General, and Lanny Breuer, the Assistant Attorney General for the Criminal Division were Covington & Burling partners before they joined the Justice Department.  Dan Suleiman, who also worked at Covington and Burling, became the new deputy chief of staff and counselor to Lanny Breuer on July 16 of this year.  Since 2008, employees of Covington & Burling have contributed $347,951 to President Obama’s campaigns.

In the past, Covington & Burling's clients have included Monsanto, Union Pacific, Merck, Warner-Lambert, Eli Lilly, Turner Broadcasting, IBM, General Motors, BankBoston Corporation, Morgan Stanley, Bank of America, Blackwater (Xe), Chiquita Bananas (in which Eric Holder defended the company against a lawsuit brought by families of individuals slain by Colombian paramilitary groups receiving money from Chiquita), the Southern Peru Copper Company (accused of human rights violations and pollution) among a bevy of other mega-financial and corporate entities.

Among this list, it is important to remember that Covington & Burling received a lacerating critique from a federal judge in 2006 for its long-term representation of the Tobacco Institute and Philip Morris. Judge Gladys Kessler of the U.S. District Court for the District of Columbia reprimanded attorneys for not just representing Big Tobacco, but for taking part in a conspiracy to deceive the public and regulators:

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified ‘friendly’ scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.

Wall Street on Parade discusses Judge Kessler's ruling:

The Court stated in footnote that “Despite the apparent conflict of interest, a few law firms, particularly Covington & Burling and Shook, Hardy & Bacon, represented the shared interests of all the Defendants and coordinated a significant part of the Enterprise’s activities.”

The Court further noted in a footnote that wrongdoing on the part of lawyers for the tobacco industry appeared to be continuing into the present. The Court made the following findings specific to Covington & Burling, the law firm that has three top posts in today’s U.S. Justice Department.

On Covington & Burling's website, it describes its fields of expertise on a page called "firm overview," some of the fields are excerpted below:

At the trial level, Covington litigators in recent years have prevailed in jury trials involving claims as diverse as employment discrimination, complex insurance disputes, antitrust and international commercial disputes.

In the corporate, tax and benefits area, we take a multi-disciplinary approach, resulting in an ability to deliver innovative and creative solutions.  Clients benefit from the collaboration of teams of lawyers having expertise in mergers and acquisitions, securities, finance, corporate governance, tax and benefits, bankruptcy and real estate.

Our regulatory lawyers are recognized as experts in their fields and regularly combine their talents on behalf of the world’s top financial institutions, pharmaceutical and life sciences companies, telecommunications and technology companies, utilities, railroads, sports leagues and consumer goods companies, among others.

Breuer is soon to leave the Department of Justice, as reported in the BuzzFlash at Truthout's commentary yesterday.

Admittedly, the revolving door between ultra-rich white collar defense attorneys and prosecutors is quite common in government.  But the Covington & Burling triple play at the Department of Justice should have set off a special alarm Of course, in Washington DC, the mainstream media just regards the elite -- whether on the government or corporate/financial side -- as the enviable insiders who the journalists would rarely think of upsetting due to their own career and social status goals.

Covington & Burling is the modern day adjunct to global corporations; the global law firm to service those global corporations, with offices around the world including Beijing, London, Seoul, Silicon Valley, Washington, New York, Shanghai and Brussels among other locations.

To be an attorney, and particularly a partner (which both Holder and Breuer were – and possibly will be again in the future), at Covington & Burling, you have to be among the legal elite with the sharpest strategies for protecting the interests of clients and have the keenest of legal minds.  When you are hired by Covington & Burling, you enter the corporate legal pantheon – and  are compensated accordingly.

That is why the excuses that the Covington & Burlington three who are ultimately responsible for criminal prosecution ring hollow when it comes to why they did not prosecute Wall Street executives.

If they couldn't make a case against the guys who brought the US economy to its knees by allowing fraudulent mortgage selling schemes, sketchy hedge funding, false reporting to the government and stockholders, and overselling junk mortgages, then why were they senior attorneys at Covington & Burling?

If they couldn't indict and convict Wall Street CEOs or higher ups of violating at least the Sarbanes-Oxley Act, then one has to ask why any corporation or financial firm would hire them?  Because cases under Sarbanes-Oxley (which provides civil and criminal punishment for fraud and violations of transparency to stockholders, the government, etc.) -- given what happened on Wall Street -- appear pretty much to have been a slam dunk were they pursued.

The Covington & Burling trio (including Holder) at the DOJ didn't lack the skill set to prosecute Wall Street executives; they chose not to.

That choice was a dereliction of duty to the American people.

(Photo: mafleen)