Recently several events from our nation’s capital regarding the Foreign Corrupt Practices Act caught my attention. The first was a series of questions posed to attorney general nominee Loretta Lynch by the junior senator from Texas, Ted Cruz. The second was the announcement that Andrew Weissmann rejoined the Department of Justice as chief of the Criminal Division’s Fraud Section.

Weissmann most recently worked at New York University School of Law. From 2002-2005, Weissmann was the deputy and then the director of the Enron Task Force, where he supervised the prosecution of more than 30 individuals. From 2011 to 2013, he served as general counsel for the Federal Bureau of Investigation. After the announcement of his move back to “Main Justice,” I found it fascinating that he was excoriated in both the right-wing and left-wing press. From the right, his involvement in the prosecution of former Enron executives was used as an example of the criminalization of everyday normal business conduct. From the left, he was chastised as a water-boy for the U.S. Chamber of Commerce.

The water-boy accusations stem from his stint in private practice in the late 2000s, and specifically to a 2010 paper Weissmann co-authored, and which was commissioned by the U.S. Chamber of Commerce. The title: “Restoring Balance Proposed Amendments to the Foreign Corrupt Practices Act,” where he argued for five changes to the FCPA. His proposed changes were:

Adding a compliance defense;

Limiting a company’s liability for the prior actions of a company it has acquired;

Adding a “willfulness” requirement for corporate criminal liability;

Limiting a company’s liability for acts of a subsidiary; and

Defining a “foreign official” under the statute.

Some have argued Weissmann now has a conflict of interest heading the unit overseeing FCPA prosecutions. Others claim he had lost the right or even ability to prosecute the FCPA because he had the temerity to offer proposed changes to the law. Both positions seem to me to fail to understand the role of lawyers in American jurisprudence and even legal training. Further, the changes that Weissmann articulated have essentially come to pass since the publication of his white paper. In reality they are largely a moot point or are simply antithetical to having any type of robust anticorruption laws on the books.

First, law school training and the role of lawyers. From the first day in law school, law students are told to “think like a lawyer.” One principle was to be ready to argue both sides of any position. That happened when you recited in class, in moot court competition, or mock trial competitions. In the real world of working lawyers, that is what lawyers do each and every day. For Weissmann to argue one position five years ago and now support another position is precisely what his legal training was designed to facilitate.

For any civilian who finds that offensive, people do it every day in our nation’s legal system. In every jury I questioned, I would always ask the panel: If the judge instructed them the law was one way, yet their personal beliefs went another way, could they follow the law? In 20 years of trying cases, I can only think of one jury panel member who said he could not follow the law because of his personal beliefs.

Rigorous debate on how to further the goals of the FCPA is always welcome. Inane questions without any basis in reality, however, are a waste of everyone’s time. Perhaps Cruz wants to be known as the Anti-FCPA Senator.

If people wonder about Weissmann’s ability to follow the law as it currently stands, I would simply ask the attorney general to ask him this question: “Mr. Weissmann, can you attest that you will follow the laws of the United States in your job with the DoJ?” If the answer is yes, that is the same as a jury member who may believe one thing but swears to follow the law as instructed by the judge.

Another school of thought says that Weissmann lacks enough moral standing to prosecute anticorruption laws such as the FCPA. These critics point to his authorship of the U.S. Chamber’s paper, claiming that one must be a true believer, never straying from the straight and narrow of espousing one position. This line of argument goes so far as to say the Chinese government is not moral enough to crack down on corruption in its own country.

This line of thinking is even faultier. First, if one could never change, one could never grow; once you stake out a position on an issue, even at an early age, you are stuck with it. More importantly, it would prevent development and evolution not only of personal opinions, but also enforcement and judicial interpretation. Such thinking would prevent beneficial change more generally. It would lock in rigid beliefs, when flexibility is always critical and the ability to analyze the other side is important to critical thinking.

As to the substance of Weissmann’s proposed changes to the FCPA: A federal appeals court defined instrumentalities in the Esquenazi decision last year, and that largely cleared up questions about who is a government official under the FCPA. Successor liability questions have been addressed in the Justice Department’s 2012 FPCA Guidance, Opinion Release 14-02, and several enforcement actions, most notably the Alstom enforcement action announced in December 2014. As the FCPA currently requires intent for a criminal prosecution, adding a “willingness” requirement would simply be superfluous to the current language of the statute.

That leaves amnesty for having a compliance defense and parent amnesty for a subsidiary’s action. Granting amnesty for those who simply put a paper compliance program in place is not something the U.S. government has condoned in any other context, and it has been demonstrated to be a non-starter as an amendment to the FCPA. As to the limiting a company’s liability for acts of a subsidiary; corporate parents are always liable for the acts of their subsidiaries.

Finally, about a proposal that makes zero legal sense: If a parent company accepts the benefits of income from a subsidiary and rolls its finances into a consolidated financial statement, breaking the income back out for FCPA liability purposes creates a completely new opportunity for corporate malfeasance.

All of which brings us to the junior senator from Texas, the Honorable Ted Cruz—whose most relevant role here is shill for corporate interests, as evidenced by in his inane written questions to Loretta Lynch.

Among other gems, Cruz asked the nominee if she supported continued Justice Department funding from FCPA settlements; if she supported a carve-out safe harbor for corporations “trying to do the right thing;” and, finally (and fully demonstrating that he did not even read the questions written up for him), whether FCPA enforcement actions should only involve countries that do not have anticorruption laws on the books.

Let’s start with the last one. No country in the world has a law that says it is legal to bribe government officials. As for the safe harbor provision, trying to do compliance is not what matters, rather than succeeding at implementing a compliance program. Moreover, given the number of declinations and non-prosecution agreements from the Justice Department, it is simply wrong to say that the Justice Department does not take into account a well-constructed, thought­fully implemented, and consistently enforced compliance and ethics program.

All of which brings us to the most astounding question of all. Cruz tried to imply that the Justice Department somehow uses FCPA fines to fund itself. As shown by nominee Lynch’s response, which I quote directly:

“Fines for FCPA violations are not ‘kept’ or ‘used’ by the department, and no such use incentivizes application of the FCPA … A company convicted of an FCPA violation pays any accompanying fine not to the department but to the relevant U.S. district court clerk’s office. Those funds are then directed to the Crime Victim Fund, which is a U.S. Treasury fund created pursuant to Title 42, United States Code, Section 10601. Funds paid into the U.S. Treasury are not available for use by the department except through the appropriations process or by statute.”

Rigorous debate on how to further the goals of the FCPA is always welcome. Inane questions without any basis in reality, however, are a waste of everyone’s time. Perhaps Cruz wants to be known as the Anti-FCPA Senator.

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