When The Chickenshit Club was published last year, it received generally positive reviews from the sorts of places that give positive reviews to generally liberal books. Its author, Jesse Eisinger, was interviewed on a flurry of radio shows, giving hosts a chance to play coy (“I can’t say the full title of the book,” breathed Terry Gross into her microphone). Slate called it “admirably lucid, nuanced”; the New York Times praised its “broad historical scope.”
But the book is anything but lucid, and its historical scope isn’t broad so much as it is jittery. It’s disjointed, confused and inartfully edited.
It also raises the spectre, always disappointing, never surprising, of the liberal demand for a more diverse, harsher penal system, with a corresponding failure to even ask, much less answer, what we hope to achieve by it.
The Chickenshit Club’s failings as a book invite us to rethink the crabbed liberalism it relies on and to broaden our vision of justice.
The Chickenshit Club sets out to explain why federal prosecutors stopped sending white collar criminals to jail, even in the years following the 2008 recession and in the face of solid evidence of wrongdoing by bankers. Eisinger notes that while there never was a golden age of federal white collar prosecutions, there was what he calls “a silver age,” when prosecutors and regulators piled on the pain and industries policed themselves.
Now, banks crash the world economy and get a light slap from one arm of the government and a low-interest loan from another. This dynamic resulted from a toxic mix of prosecutorial overreach, jurisprudential overcorrection and human greed. Prosecutors got sloppy; appeals courts overturned decisions; prosecutors got gun shy and increasingly declined to bring criminal charges against bankers; their prosecutorial muscles atrophied; the vicious cycle churned on.
White collar law firms began paying larger and larger salaries, particularly for lawyers who had worked for the government, and prosecutors began thinking of their jobs as a way to audition for their next career at white collar defense firms. A “symbiotic relationship” between prosecution and defense formed: Prosecutors pressured companies to establish internal investigations and ongoing compliance departments, which would be overseen by and would generate fees for law firms. As one attorney sums it up, “This is good business for law firms, this is good business for accounting firms, it’s good business for consulting firms, the media – and Justice Department lawyers who create the marketplace and then get [themselves] a job.”
The industries the government was supposed to oversee, in the meantime, consolidated to the point that prosecuting any one company might destroy a significant chunk of its industry. And Democrats refused to support a strategy of criminally prosecuting white collar criminals, emphasizing regulation over enforcement and legislation over litigation.
The book’s greatest contribution to the literature might be to show how personal foibles interact with larger structural trends. A hard-nosed prosecutor’s origin story includes an FBI placement exam taken almost by accident; an SEC lawyer endangers an investigation by writing an email critical of a colleague and then accidentally sending it to him. Exhaustion, antipathy and pique all play their outsized roles in the drama.
Such biographical sketches are also the book’s greatest curse, giving the book a confused quality: part trade reporting, part pop non-fiction, it never settles on a mood. It also underlines how little attention the book gives to the victims of financial crimes. We learn, in exhaustive detail, about the transcendent ugliness of an SEC regulator’s couch, but nothing about how foreclosures affect homeowners. Eisinger spends more words giving us the names of restaurants at which a certain judge eats than he does on what it’s like to lose retirement savings.
It’s a bizarre reversal of the litigation strategy Eisinger critiques, in which corporations are prosecuted but not the people who control them. Businesses come alive through the biographies of their corporate officers, while the people who lost homes, retirements and jobs are rolled up into an undifferentiated mass labeled “shareholders.”
A brief note about the book’s style: It’s bad. At one point, coming across the unfamiliar term “Wells notice,” I backtracked 12 pages in order to find its first reference, which didn’t define it either. (The Securities and Exchange Commission sends the notices to companies that it intends to file enforcement actions against.) At another point, a passage about the integrity of one lawyer concludes with a quote about the integrity of other lawyers. Clauses repel each other, and sentences drift without purpose through paragraphs that have little to do with their neighbors.
This sentence is typical: “As a newly returned Covington partner, Holder, who in 1999 reportedly pulled in $2.5 million, including deferred compensation, when he left the firm to head up Justice, would make many times that.” Dependent clauses within dependent clauses within clauses dependent on qualified subjects in order to make a very simple point: A metaphor for the book as a whole.
The book describes a complicated problem – a confluence of individual foibles, political pressures, cultural shifts, organizational confusion and a legal ecosystem devoted to the protection of capital. For Eisinger, the solution is to hire more diverse prosecutors.
Diversity, in this case, means diversity in alma maters and previous litigation experience, which Eisinger believes will provide the skills and dedication that the pursuit of white collar criminals demands. The solution fails on two levels.
First, the class solidarity between prosecution and defense teams is only part of the problem, and even if it were the whole problem, it’s not clear that any amount of diversification among deputy attorneys general will solve it. It’s like using several shades of the same color and calling it a rainbow. At the end of the day, they’re all attorneys, engaged in the pursuit of justifying conclusions by resorting to the same jurisprudence.
But it’s also a solution to the wrong problem. Eisinger’s book disappoints not because it is technical, poorly edited and anticlimactic (which it is). Rather, it doesn’t confront what it means by “justice,” a term frequently invoked but never defined. What is it we hope to achieve by locking away white collar criminals?
There’s some light flirtation with the (dubious) proposition that heavy prison sentences will deter future fraud. The book also gestures toward the criminal trial as a strategy to expose corruption, with one judge calling it “nearly the only place where the entire criminal justice system is put to the test of truth: Do you have the proof of guilt, or don’t you?”
But the spirit of the book is best summed up by George W. Bush’s deputy attorney general: “Our strategy is really straightforward. We aim to put the bad guys in prison and take away their money.”
Emotionally satisfying, no doubt, but as a guiding ethos, less than complete. If the book has any heroes, they are almost all conservatives dedicated to a retributive theory of justice. Stanley Sporkin, he of the ugly couch, viewed “tough enforcement as a conservative, capitalist value.” Of Thompson, Bush’s deputy attorney general, Eisinger writes, “A sense that no one was above the law fired him.”
Robert Morgenthau, U.S. attorney for the Southern District of Manhattan in the 1960s, asks, “How do you justify prosecuting a nineteen-year-old who sells drugs on a street corner when you say it’s too complicated to go after the people who move the money?” Treating white collar crime leniently throws the whole operation into ill repute and is for that reason unsupportable.
But we shouldn’t aim simply to shore up faith in the carceral state by locking more people in cages. The disparities between the treatment of low-level drug users and C-level thieves are gross, in both senses of the term. But by noting them, do we hope to build a penal system that treats fraudsters with the same level of contempt for human dignity that street criminals face? Is our greatest ambition to inflict on white collar criminals the same pain we inflict on others? And do we recognize that in order to do so, we would need to devote resources to agencies, like the FBI, that regularly violate civil liberties?
Eisinger asks us to imagine a world in which executives who destroy the economy are swiftly punished. I say we imagine a world where they don’t exist. This project starts with a systematic investigation of past wrongdoing. But we need to question whether criminal courts are where we can achieve that. Even Eisinger admits that they aren’t: “Trials are not about arriving at larger truths or depicting the whole story”; they focus on the narrow question of guilt or non-guilt of specific crimes. Individualized trials are demanded by due process, but they in turn demand de-contextualizing crimes. And the law doesn’t provide a language for the community to express its moral outrage, particularly in the case of white collar crime, which is often highly technical.
Hearings in front of legislatures are helpful, especially when they elicit testimony from malefactor and victim. But the typical congressional hearing results in little more than brief YouTube stardom and the issuance of strongly worded press releases, with nothing done to address the underlying structural problems.
So we need to also commit to a substantive project. This project starts with breaking up near-monopolies, including large banks. We need to think through our tax code, which rewards capital, greed and recklessness, and our wages, which punish productivity. And we need to consider democratically controlled options (banks? credit ratings agencies?) in industries that have become captured by conflicts of interest and risky behavior.
What we don’t need is a project that relies on ex-post punishment, incarceration and retribution. Locking someone up in a cage will neither address past wrongs nor prevent future catastrophes. It will only reinforce a system that no leftist should be cheering for.