Benczkowski confirmed as criminal division leader as Trump's DOJ FCPA enforcement hits stride

13 July 2018 2:51pm

11 July 2018. By Robert Thomason.

Brian Benczkowski, a controversial nominee, was confirmed 51-48 along party lines by the US Senate to be the Justice Department's assistant attorney general for the criminal division, as President Donald Trump's DOJ faces a Foreign Corrupt Practices Act caseload that has returned to typical levels after a slow start.

As head of the criminal division, Benczkowski's duties will include overseeing FCPA prosecutions and resolutions. Democrats, citing his lack of prosecutorial experience, have questioned sharply his ability to supervise DOJ's cadre of more than 600 US trial attorneys in any litigation.

Filling the criminal division's chief slot was slow for the Trump administration. Benczkowski was nominated on June 6, 2017, though Attorney General Jeff Sessions had asked him in April of that year if he was interested in the position.

Benczkowski's nomination drew criticism from Democratic senators not only for lack of courtroom experience, but also because, as a Kirkland & Ellis lawyer, he represented Russian Alfa Bank on two matters. The first was the bank's internal investigation of unusual Internet traffic with a server at Trump Tower during the 2016 presidential campaign. The second was a review for the Russian company of the Steele dossier, a report about some of Trump's relations with Russia, for information about Alfa Bank.

Benczkowski began representing Alfa Bank the month before Sessions asked if he would be interested in running the criminal division and continued to do so until the day of his nomination. During his confirmation hearing, Democrats questioned whether he should have dropped Alfa Bank as a client as soon as he knew he was under consideration for a post that might involve investigating them. Other Democrats wrote to Trump urging him to withdraw the nomination.

Democratic senators, such as Dick Durbin of Illinois and Ben Cardin of Maryland, also said on the Senate floor that Benczkowski was poorly qualified, in part because he has no experience prosecuting federal cases.

Democratic Senator Diane Feinstein said in a statement that Benczkowski has refused to recuse himself from investigations into the Trump campaign. “Benczkowki is simply not qualified to lead the Criminal Division and could potentially undermine the Mueller investigation," she said. The criminal division is the unit of the DOJ that must give approval to certain actions of prosecutors, including the special counsel.

However, Republican Senator Mitch McConnell said that Benczkowski has served in five positions of authority at the DOJ under three attorneys general, including chief of staff to former Attorney General Mike Mukaskey. He was Republican staff director of the Senate Judiciary Committee when Sessions was the Republican ranking member.

— DOJ FCPA cases —

As the head of DOJ's criminal division, Benzckowski will oversee enforcement of FCPA cases while serving a president who has criticized the law.

Trump in 2012 called the FCPA a "horrible law" during a television call-in discussion, giving rise to concerns about how his administration would enforce it.

But after getting off to a slow start, the number and pace of FCPA cases filed by Trump’s DOJ has reached levels comparable to those during most of the Obama administration, according to an MLex analysis of the DOJ web site's list of distinct FCPA cases filed in federal courts by the agency. (This analysis counts only the initial filing of court cases, and not the one to four non-prosecution agreements DOJ has reached each year that never require a court appearance.)

From Trump's Inauguration until June 30, 2017, the DOJ filed only two FCPA cases. That was typical of the early stages of prior presidencies except for Obama's, when DOJ filed 14 FCPA cases.

But in the second half of 2017, Trump's DOJ's web site listed the filing of new 22 cases. In the first half of this year, it has filed 10.

This compares to an average of 21 FCPA cases filed each year by the Obama Justice Department. If the number of new cases filed continues at the present rate, the DOJ criminal division under Benczkowski is on track to come close to or match that average as well.

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