Book Review: The Chickenshit Club

The banks and brokerage houses nearly brought America down in the crash of 2008, and yet the United States Department of Justice couldn’t manage to find anyone to prosecute. Like almost anyone paying a little bit of attention to criminal law, finance or who breathed, Pulitzer Prize-winning ProPublica writer, Jesse Eisinger, was pissed. So he sought to find out how this grave injustice could have happened. And that may be the mistake, even if it’s unavoidable.

Eisinger’s new book, The Chickenshit Club, Why the Justice Department Failed to Prosecute Executives, from Simon & Schuster,* dives into the huge question with one thing certain: that the failure to prosecute anyone was a failure of justice. Eisinger doesn’t hide his politics, and that bankers and businessmen are presumed guilty permeates the book. It’s not that it’s an unfair assumption, given what happened, but that his search never seriously considers that maybe the DoJ was not merely a bunch of cowards, but could just be wrong about who’s a criminal.

If you’re interested in the feel, the smell, the sense of what inside baseball is like in federal criminal law, to some extent, and the Justice Department in general, Eisinger does a spectacular job of providing a rich and deep background. It might seem overly banal to the casual reader, but that’s only because it is in real life. Take away the gloss of the cameras and the feigned heroics pumped out by the media, and you see regular people doing their jobs. Eisinger paints a rich tapesty of the world inside Justice. For this alone, the book is one of the most insightful I’ve read. This is the real deal, no shade to clean up the nasty people for their close-up.

But I kept having to remind myself, this was not a book about whether there were crimes committed by bankers, accountants and businessmen, but about how Justice went from the over-reaching cowboys of Enron days to the lily-livered corporate apologists of Lanny Breuer’s “Breu Crew.” I kept waiting for Eisinger to question whether there might be some potential that assumptions, leaps of faith really, that a vague email didn’t conclusively prove guilt.

The title of the book, coming from a speech given by Jim Comey when he took over as United States Attorney in the Southern District, is hilarious and foreboding. Comey’s message was that the only prosecutor who never loses is the one who has no guts. If you believe a crime has been committed, investigate it. If there is evidence to back you up, prosecute it. If it’s not overwhelming, then maybe you’ll lose, and that’s okay. Otherwise, you’re a member of the chickenshit club. Who doesn’t love brave prosecutors, right?

And this theme guides Eisinger’s view of Justice over the next decade and a half, as it fell from this lofty perch of risk and virtuous strength to Preet Bharara shooting fish in a barrel so he could bask in the glory of magazine covers. There is little doubt as you read the book whom Eisinger admires and whom he doesn’t. Judge Jed Rakoff (starting with AUSA Jed Rakoff)? He would be St. Jed if Eisinger was Pope. And he may well deserve it, but Eisinger makes clear that the players he respects are beatified and the ones he disdains are excommunicated. As it happens, I don’t necessarily disagree with his choices, but then, even the good guys aren’t perfect and the bad guys not invariably wrong.

Eisinger’s research into the prosecutor view of the world is exhaustive. He runs through case by case, player by player, leading up to the collapse of morality under Eric Holder’s Justice Department. And it can bog down at times. There is no shortage of beef in his burger, and it sometimes seems as if he’s determined to use every iota of inside info, even if it tells the same story. If you can’t get enough of prosecutor war stories, then you’ll love this. If you got the point and are ready to move on, then you don’t need to go into every individual potential case in excruciating detail.

While it’s offered to provide color to the background of federal prosecutorial decision-making, Einsinger provides some great insight into the nature of the biglaw white collar defense bar. He sees the pipeline from prosecutor to fat paycheck and a corner office. He tells of the game played by old officemates making the pitch for their corporate client over tea, the usual dance and the usual result. If it stinks of being formulaic, that’s because it is. And Eisinger spells it out, noting that when an actual defense was needed for Enron, they turned to a real lawyer, Rusty Hardin, rather than the effete ex-Justice crowd.

Of course, the goal of the book is to make sense of things, and Eisinger’s timeline was meant to achieve that end. But even in his summation, the answers are unclear. DoJ went from overreaching cowboys to tepid wonks as the culture within and without (meaning, courts that were too kind to bankers and executives, while hating other defendants, as usual. What happened to the guts? Was “too big to fail” the mantra? Were they too afraid of losing a case? Were they avoiding the smackdowns from judges who were too kind to bankers?

Even if one doesn’t bristle a bit at Eisinger’s politics,** he doesn’t seem to take seriously that maybe, just maybe, the government had gone over-the-top back in the Enron days. Maybe this wasn’t about heroic chances, but about abuse of power. Similarly, when we reach the cowardice stage, maybe they weren’t too scared to prosecute the guilty but more circumspect about abusing their incredible power. None of these ideas are explored, or even considered, in the book. When you start with the assumption of pervasive guilt, there’s no place to go.

As a book capturing the flavor of financial crimes, and doing a particularly good job of explaining them, and distinguishing the petty insider trading stuff that gave Preet his “Sheriff of Wall Street” title, while ignoring crimes of many magnitudes of harm greater, The Chickenshit Club does an excellent job. If you want an answer to the perplexing question of how the Department of Justice could have failed so massively, it’s not really there. Eisinger may be right, but his view is myopic and, despite the overwhelming detail, less than persuasive.

*I was given a free copy of the book for review.

**The book apparently went to print sometime between Sally Yate’s firing and Preet Bharara’s firing. I couldn’t help but wonder whether Eisinger’s disdain for Preet would have turn around as a result of Trump’s firing Preet, who subsequently became one of the oddest progressive heroes imaginable.

14 thoughts on “Book Review: The Chickenshit Club

  1. Michael B.

    I can’t square the quote from Jim Comey with his later, more famous opinion that no reasonable prosecutor would bring a case against Hillary.

    “Comey’s message was that the only prosecutor who never loses is the one who has no guts. If you believe a crime has been committed, investigate it. If there is evidence to back you up, prosecute it. If it’s not overwhelming, then maybe you’ll lose, and that’s okay. Otherwise, you’re a member of the chickenshit club.”

    1. SHG Post author

      Inconsistency sucks. I can’t explain it either. Eisinger at the end tries to square up Comey (whom he likes) with his actions at the end of the campaign with regard to Hillary. He doesn’t quite give Comey a pass, but then, he also doesn’t call out the inconsistency.

  2. Pedantic Grammar Police

    “White color” is surprisingly appropriate but I think YMTS “white collar.”

  3. B. McLeod

    I think the Department of Justice simply didn’t have anyone smart enough to sort through the debris and spot the wrongdoing before statutes of limitation expired.

  4. Alex Bunin

    Another reason, espoused by Marcia Coyle in the National Law Journal, “How the Supreme Court has Reined in Federal Prosecutors” (July 14, 2017), is that the definitions used to prosecute white collar cases have been recently narrowed. McDonnell v. U.S. (official act), Bond v. U.S. (tangible object), Skilling v. U.S. (honest services), Arthur Anderson v. U.S. (knowingly…corruptly). Reducing the analysis to corporation culture has merit, but it may not be the whole story.

    1. SHG Post author

      Eisinger addresses the decisions (particularly the earlier ones) as reflecting the Supremes becoming pro-executive on crim issues, while notably hating defendants otherwise. This goes to his politics and perhaps the one-sidedness of only focusing on the prosecutor’s perspective, that it was not because prosecutors overreached, stretched law beyond its breaking point, or were just plain wrong. It was because the Supremes were pro-business and these decisions proved it. He never considered that the Supreme were right and his prosecutors were wrong.

  5. David

    There may be some truth to the notion that the DOJ under Obama tailored its approach to white collar crime so that it fit S.Ct. precedent. An AUSA I once spoke with said that their office wouldn’t bring a certain type of prosecution because the judges in the district didn’t want their courts “cluttered” up with such cases. But this misses the point: federal prosecutors don’t work for the judges before whom they appear. Just because a judge (or justice) doesn’t like a particular kind of case is no reason not to bring it. So in this sense, yes, they are chickenshits.

    1. SHG Post author

      Have you ever tried to get an AUSA to take a case when it doesn’t come from above? They want nothing to do with it. It’s almost as if they don’t actually give a shit and they’re just doing a job.

      1. David

        Yes, I have (tried to get them to take a case–cases, actually–when it didn’t come from above). Your observation about how they react is spot-on.

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