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Here is a simple question: if a heroin dealer sells a product that oftentimes leads to death, should the Justice Department try to put them in jail?
Here, it seems, is the Trump administration’s answer: Not if they are a large enough corporation.
ProPublica published a walloping investigation last month showing how Trump appointees at the Department of Justice repeatedly brushed off evidence indicating Walmart’s liability for overprescription of opioids. Prosecutors had dozens of examples of Walmart pharmacists across the country begging their managers to let them refuse to fill out opioid prescriptions from known “pill mill” doctors. In response, corporate compliance officials “repeatedly admonished pharmacists that they could not cut off any doctor entirely,” according to ProPublica.
Amongst themselves, the Walmart executives were at least honest about what they were up to: “An opioid compliance manager told an executive in an email, gathered during the inquiry and viewed by ProPublica, that Walmart’s focus should be on ‘driving sales.’”
Career DOJ prosecutors were prepared to indict Walmart, a Fortune 500 company and the largest retailer in the world, for criminal violation of the Controlled Substances Act, according to ProPublica’s reporting. But when the team sought the go-ahead from Deputy Attorney General Rod Rosenstein — a hero in some Democratic Party circles for his tolerance of Special Counsel Robert Mueller’s investigation — they were waved away. According to ProPublica, when the prosecutors tried to convey that a simple fine would mean nothing to a company with more cash than anyone can imagine, Rosenstein replied, “Not that there’s anything wrong with that. We’re all capitalists here.”
Any news story that’s not about the coronavirus will inevitably be lost in the shuffle right now. But if and when we (likely inevitably) learn that bailed-out companies and multi-trillion dollar slush funds misuse the public disaster relief dollars doled out by the Trump administration in the wake of the pandemic, we should turn back to this Walmart story for further evidence of why big corporations are rarely held accountable.
Walmart overprescribed opioids as the country was gripped by a public health crisis. Pharmacists, in real time, screamed about it to deaf ears from Walmart executives. And not only did Walmart escape consideration of a criminal case, it even wriggled out of civil court scrutiny thanks to some white-shoe lawyering by white-collar defense firm Jones Day.
One of the defining themes of our time is that the powerful and profitable never seem to face accountability for their wrongdoings, and in fact are often coddled and rewarded by the government in response. Progressives recently lost a desperate fight for some smidgeon of oversight on a multi-trillion dollar slush fund that Treasury Secretary Steven Mnuchin (who is just a pillar of ethical capitalism) gets to dole out to whomever he pleases. That was an important fight, but to achieve broader accountability among private sector wrongdoers, we need to look at the people responsible for enforcing the (often muscular!) white collar criminal statutes on the books.
If you want to reform corporate America, you have to start with the Department of Justice. Their prosecutors and attorneys general enforce the nation’s criminal laws, including white-collar criminal laws. In recent years, prosecutions — much less convictions — of white collar crime have hit an all-time low. We are living through, as Michael Hobbes wrote in Highline, “the golden age of white collar crime.”
Under current Department of Justice organizational guidelines, the Associate Attorney General — the Department’s third-in-command — oversees offices focused on civil rights, tax law, environmental law, antitrust, and community-oriented policing. That puts a wide swath of progressives’ policy priorities under the consideration of just one appointee. That job in turn reports to the Deputy AG, the position recently occupied by Rosenstein. And don’t overlook the Office of Legal Policy, which “develops and implements” organizational priorities for the entire department. If that sounds boring and logistical, imagine a memo from the Legal Policy office which explicitly calls on prosecutors to prioritize white-collar criminal prosecutions, with the goal of scaring corporate America straight.
That’s a reform which even moderate conservatives have sought at DOJ for years: James Comey, of all people, coined the term “the Chickenshit Club” to describe prosecutors too scared of losing cases to even pursue the corporate criminals they know do wrong. Reporters are long overdue to ask the Biden campaign how he would treat Walmart and other corporate bad actors. If a new administration simply slots courageous and smart people into a few crucial jobs, they could bring accountability to board rooms across the country.
But Trump’s appointees are worse than the Chickenshit Club: they aren’t afraid of losing to big companies, they simply think that big companies can do no wrong, even if those companies ignored outcry and maintained policies that led to countless deaths. And so the DOJ closes its eyes toward any investigation into an entity large enough and profitable enough to be a DOJ official’s future employer. After all, no matter what Adam Smith might say, we’re all capitalists here.
Correction: An earlier version of this essay overstated the number of opioid-related deaths in the U.S., and tied them to Walmart. The number of opioid-related deaths among Walmart customers is not officially known. TPM regrets this error.
Max Moran is a research assistant at the Revolving Door Project.