Lanny Breuer and Mary Jo White. Or Is It, Lanny Breuer versus Mary Jo White? Or is it neither?*

Beverly Mann | January 25, 2013 11:17 am

Law

BREUER: “If you look at what we and the U.S. attorney community did, I think you have to take a step back. Over the last couple of years, we have convicted Raj Rajaratnam, one of the largest hedge fund leaders. Now, you’ll say that’s an insider trading case, but it’s clearly going after Wall Street.”*

Oh, we get it.  It’s a semantics game.  Anyone connected with the finance industry will do as a prosecution target, as long as he wasn’t a top executive at a mega bank, a mega investment bank, or a mega mortgage company.  He works on Wall Street!  We went after Wall Street!

What’s next? A claim that they prosecuted the head of the asphalt company that repaved Wall Street, for tax evasion or something?

BREUER: “First of all, I think that the financial crisis is multifaceted. But even within that, all we can do is look hard at this multifaceted, multipronged problem. And what we’ve had is a multipronged, multifaceted response.”*

Actually, there seems to be a major facet missing in their approach.  Which was the point of the expose.

All that said, I just think there’s something more that was going on there than just Lanny Breuer’s and Eric Holder’s desire to return to Covington & Burling after their Justice Dept. stints.  For one thing, most top white collar crime defense attorneys began their careers as federal prosecutors and made their names in high-profile cases.  They know how to defend in white collar criminal cases, precisely because they successfully prosecuted some complicated ones.  So prosecuting big-name Wall Street execs would not have hampered their option to return to big-law criminal defense work.  

For this reason, I think the criticism of Obama’s selection of Mary Jo White as SEC head is off-base; she was known as an extremely aggressive head of the Manhattan U.S. Attorney’s Office, and do think Obama’s decision to nominate her is intended to indicate a toughness toward the finance industry.  Yes, she’s been representing finance industry companies and execs in criminal-law matters, but because of that, she now knows all the more how the inside game is played.  And the better she is at the SEC job, the more desirable, not the less desirable, she’ll be to the big Wall Street law firms.  It’s counterintuitive, and of course exactly the opposite of people who work in regulatory agencies such as the EPA leaving to become lobbyists.  But what matters in this situation, less, ideology than actual knowledge

This is not to minimize the potential and maybe real conflicts of interest that result from the passage back through the revolving door to high-level law enforcement and regulatory positions after time spent on the other side of that door.  But I think that’s because of friendships–personal relations–rather than a surely-unrealistic fear of having trouble returning to Big Law, for really big bucks, when the time comes to pass back through the revolving door once again. 
Ultimately, I just don’t think Holder and Breuer were the ones deciding to not even investigate the big boys.  I think that was more likely a policy decision made elsewhere in the administration.  I don’t think Geithner picked up the phone and called Holder or Breuer. Nor, if he did play a role in these decisions, do I think he even thought he was doing anything other than protecting the economy. Same for Obama, if my hunch is right that Geithner had some influence on these decisions, via Obama.
But I guess there’s no way for us to know the inside story. At this point, anyway. And I do agree with the New York Times today in an article by Ben Protess and Benjamin Weiser that Obama seems to be trying to signal a new day.

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* From The New York Times would rather cover a Breuer chair than cover Lanny Breuer, by lambert, at Corrente. H/T, reader rjs.

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*POSTSCRIPT:  The New York Times article notes specifically that White “defended some of Wall Street’s biggest names, including Kenneth D. Lewis, a former chief of Bank of America,” and that “[a]s the head of litigation at Debevoise & Plimpton, she also represented JPMorgan Chase and the board of Morgan Stanley.”  So she’ll have to recuse herself from matters that touch upon issues related to the cases she worked on for those execs and banks or that rely in any respect on information she gained through those representations.

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