good morning this hearing of the committee on the judiciary subcommittee on commercial administrative law will now come to order that objection the chair be authorized for a recess of the hearing and all that recognize myself for a brief this morning th agreements in criminal cases involving criminal corporate defendants with the growth in the use of corporate deferred and non prosecution agreements in the last decade it became evident over time that there was no meaningful standards governing when the government could or should enter into such agreements or what the scope of such agreement should be even more troubling was the complete lack of guidance with respect to the selection and use of and the compensation for corporate monitors to implement such agreements the standards governing how corporate monitors were to be selected and what the scope of their authority led to disturbing suspicions of abuse caesar's wife came into our committee once again issues concerning the propriety of appointment of certain individuals and the multimillion dollars that they received one notorious example which we explore in our previous hearings was that when caesar's wife was very disturbed s attorney then now governor to be christopher christie selected former attorney general john ashcroft to serve as a corporate monitor for which mr ashcroft collected a fee of cesar's the circumstances surrounding his appointment and service as a monitor were not made public at the time of his selection and no provision was ever made for oversight or accountable concerning his performance as monitor this lack of transparency was troubling to our subcommittee and to the corporate world and to the public as articulated in several articles and media reports that was caesar sell us these concerns prompted the subcommittee to hold hearings on this issue and request the government accountability office to investigate the matter their report be released to the next few weeks and i look forward to learning what the government accountability office discovered the department of justice is also provided some guidance with respect to the selection of corporate monitors  the steps they've taken they are not etched in stone or statute more and therefore is needed there must be a fundamental change in the monitoring process so that your greater transparency and integrity and safeguard against the abuses or appearance of abuse in the past the perception of unfairness and cronyism undermines governmental authority and integrity in the judicial justice process and the selection and use of corporate monitors to oversee pretrial agreements must be fair and it must be perceived as fair public trust and confidence are essential elements of an effective justice system sometimes the appearance of justice is just as important as justice itself the reality there of congress has a critical role to play in this area and i believe the guidance governing the which will protect against actual and perceived conflicts of interest with respect to federal prosecutors who leave the u s attorney's office to work as corporate monitors i believe this bill will fill an important gap in providing accountability and transparency and avoiding abuse with respect to the selection and use of corporate monitors there are revolving doors in most areas of government and most states as well as federal systems and are involved door is not a bad thing if you move with it you don't get hit on the rear chairman thank all of you for being here mr chairman deferred prosecution agreements are an invaluable tool in the justice department's arsenal for combating corporate crime these agreements allow the department to achieve all of the benefits of a criminal prosecution without subjecting the companies their employers their employees and shareholders to the collateral consequences of a prosecution and conviction in contrast to the far more rigid criminal sentencing process deferred prosecution agreements permit the justice department corporate defendants to work together in a more flexible environment to remedy past violations and prevent future illegal conduct they serve to rehabilitate the company root out illegal and unethical conduct disciplined culpable employees and promote good citizen corporate citizenship going forward and they allow prosecutors to achieve more than they could through the court imposed fin and restrictions alone the benefits of deferred prosecution agreements have been recognized by bush one clinton bush two and obama justice department in some cases part of an effective deferred prosecution agreement is the use of a corporate manager to oversee the implementation of in compliance with the agreements provisions corporate monitors help ensure that companies institute meaningful changes and develop the best compliance programs possible additionally corporate monitors can verify that companies are fulfilling the obligations of the deferred prosecution agreement to a much greater extent than the department could accomplish on its own not just the benefits of corporate monitors their use has engendered criticism in recent years in the press and from some members on the other side of the aisle much of this criticism was levity and in my opinion to an intent to derail the gubernatorial campaign of former new jersey u s attorney chris  christie as hearings before the subcommittee demonstrates however the criticism of governor elect christie's use of corporate monitors was unjustified yet we are here today to consider whether legislation is needed to avoid conflicts of interest in the appointment of compliance monitors  and honestly i do believe the case has been made the congressional legislation is needed i think that it is not needed in this area i don't see the case is not to say that i believe that the appointment of corporate monitor should be ungoverned i just don't think there's credible reason to believe that justice department has or has not or cannot develop sufficient internal regulatory guidance on the appointment of corporate monitors it seems to be an area where we're majoring on a minor and maybe taking the risk of having two minor on majors over the past ten years since the initial holder memo on the prosecution agreements the department continually fine tunes its rules for these agreements and at this point i think the nation's corporate law enforcement goals would be best served by continuing to leave it to the department to ensure transparency and integrity in corporate monitoring we do not need to unnecessarily tie the departments hands  legislation at this point in my opinion so in closing let me just say that i find it disappointing that the committee is once again revisiting the subject of the appointment of corporate monitors when we've yet to take a look at the obama administration's appointment  ours certainly these ours who are not subject to senate confirmed confirmation we'll far greater power than any corporate manager and i hope that in the future the chairman will direct this committee's oversight efforts to these prostitution turns yellow and then after one more minute it turns red and at that time you should try to conclude your remarks after each witness has presented his or her testimony be permitted to ask questions and at the same limitation although it won't be strictly enforced our thank you chairman comment and chairman cohen ranking member frank and chairman conyers and members of the subcommittee thank you for inviting me to testify before you today it is an honor to appear before you did i'd like to discuss briefly why i think the proposed legislation is beneficial and offer three suggestions for possible improvement the proposed legislation would take steps to fill a gap in the current law that governs the post in point employment activity of former federal prosecutor current law prohibits former employees from litigating the same matters in which they personally and substantially participated while in government service however current law does not expressly prohibit a former prosecutor from serving as a monitor for a company that he himself investigated and prosecuted nor does it clearly prohibit a former or from serving in a monitor ship that arose out of a deferred prosecution or non prosecution agreement that she herself negotiated the proposed legislation remedy this proposed legislation is important for several reasons first it would target the problem of the revolving door monitoring employment and the perception of self dealing by prosecutors actual self dealing of course is corrupt and criminal but public confidence in government is undermined even by the mere appearance of self dealing if it looks like there is a revolving door between government service as a prosecutor and a monitor ship for a private company there is a real danger that it will foster public cynicism about government by feeding the public to believe that government actors are not always looking out for the public's interest but rather their own even if government actors are not in fact corrupt the perception of corruption in government activities has a dispiriting and corroding effect under current law there is a risk that prosecutors who have worked on a d p a or will later serve as monitors because of d o j power to select those monitors and the fact that monitors are often after searching public documents i'm unaware of any monitors who have been appointed who previously worked on the same matter that they later monitored nonetheless the proposed legislation would impose prophylactic measures that would eliminate the possibility of such a point second the proposed legislation would be appropriately tailored to address this danger if an apparent scrivener's error that i will mention in a moment corrected would be corrected the proposed legislation would bar former prosecutors from acting as well working from a monitor only on the same matters in which they worked while in government former prosecutors could still serve as monitors as long as they had no involvement with the investigation or prosecution of the company subject to the d p a or n third the proposed legislation appropriately would apply not only to u s attorneys but also to a given that the proposals primary benefit would be to actual self dealing and to avoid any appearance of impropriety no substantive distinction should be made between political appointees and those who serve under that report of an award of a lucrative monitor ship in a no bid contract would have an equally deleterious effect on public confidence whether it identified the contract recipient as the us attorney oversaw the prosecution that created the employment opportunity as it would if the contract recipient were the usa who handled the prosecution from day to day forth the proposed legislation would find analogues in other areas which i discussed further in my written  testimony the proposed legislation would have significant call it would not reduce the actual quality of monitor the supply of available monitors would still include the former prosecutors who had not previously worked on the particular case as well as people with experience in corporate america independent private sector inspector general or others who in many situations might in fact be better monitored than former prosecutors i have three brief suggestions for the subcommittee consideration first the subcommittee may want to consider whether the time period of the proposed bar should be lengthened the most analogous current provision to the legislative proposal is the prohibition on advocacy and representation in the same matter in which the former government employee participated that prohibition is permanent similarly the justifications for the proposed legislation do not seem to diminish with the passage of time second the subcommittee may want to consider whether the scope of the persons covered under the proposed legislation should be expanded as it is currently being considered it would apply only to former prosecutors of u s attorneys offices but not to former political appointees or other lawyers in main justice who may also work as monitors there's no apparent reason to exempt criminal division which is responsible ongoing justice practices and using the prosecution agreement rather than prosecution to address some corporate crime my testimony today will focus more specifically on the department's use of independent monitors to ensure company compliance with decision company and justice officials said they typically use personal knowledge and colleague recommendations to identify monitors and are usually looking for expertise including former justice experience or certain legal or industry knowledge as well as  assurance that the monitors free of any conflict of interest in march two thousand and eight w tourney general morford issued guidelines calling for the department companies to collaborate on selecting monitors and to ensure they are qualified and did not have conflicts among other things each litigating unit is to use an internal committee to select monitors and attain the deputy attorney general's approval on this decision justices elected or monitor since the memo and complied with these guidelines in each case however justice is not always document d compliance and in june testimony to you we recommended that justice do so to ensure accountability in response since august justice now requires that the office of the deputy attorney general use a checklist showing compliance with the guidelines so what experience did the monsters provide companies of hired forty two individual monsters so far and more than half had previously worked at justice although only a few were selected within three years of leaving the department eight worked in the same justice unit that issue the d p a or n p a the remaining monitors had experience in state or local government the private sector and other federal entities and agencies among other areas eight of thirteen company representatives we contacted most of them had monitors who worked at just the values and did not have concerns about the monitors just this experience but five representatives including several whose monitors worked at just said this experience could appear to compromise independen although they did not have this concern with their individual monitor the criminal division requires monitors and others to certify they are free of conflict which could be one way to address concerns about favorite finally we looked at how companies resolve concerns about  seven of thirteen raised concerns about the performance of their monitors three about the monitors total compensation and three about the monitors which range from about three hundred to nine hundred dollars an hour companies but some companies were not certain how they could resolve these concerns were all just a play in this justice officials said the department could help in some instances but would be limited once a company in a monitor signed a contract monitors contract and include a provision to terminate the contract if the monitor didn't perform but only one of thirteen companies we surveyed had such a provision and it is not certain what leverage companies may have to include one given but just general direct getting component and u s attorney offices to do this depending on the facts and circumstances of each case mr chairman that concludes my statement and i would be happy to answer any question thank you very much those annoying chairman come ranking member franks and chairman conyers thank you very much for the opportunity to testified today about an issue of great importance to prosecutors corporations and the public alike as you mentioned i served last year as associate deputy attorney general and in that capacity i played a role in formulating the department's corporate monitor principles we had one overarching goal in mind with respect to the selection of moderators and that was to formulate a selection process designed to produce both a high quality and conflict free corporate monitor i believe the department's corporate monitor principles goal the very first principle goes to the matter before this committee today simply put principle number one is designed to ensure integrity and monitors election it lays out several key requirements toward that end first government lawyers involved in the selection process must comply with all the existing conflicts of laws guidelines conflict of interest guidelines so i can the government must establish a committee to review monitor candidates and serve the deputy attorney general's office must approve the selection of the monitor principal one also directs that monitors be selected where possible from a pool of at least three qualified candidates that these requirements have teeth that is particularly true with respect to concerns over perceived cronyism by a prosecutor's office requiring that monitors be vetted by a committee diminishes the influence of any one person over the selection process be that a u s attorney or assistant attorney general or even a line prosecutor likewise requiring that monitors be selected if possible from a pool of candidates makes it even less likely that monitors will be cherry picked by government officials seeking to reward friends or for college even more significant requiring the approval of the office of the deputy attorney general provides an extraordinary check and balance against the selection of monitors for inappropriate reasons to use the word extraordinary without exaggeration there are a few matters at the department that require consultation with the deputy attorney general's office there are even fewer that require the approval of the deputy attorney general's office and there are fewer still that require approval on individual criminal case i've seen the proposed legislation that would restrict the ability of former prosecutors to serve as monitors on cases in which they were involved while employed by the government a limitation of this sort would certainly mitigate the perception that government lawyers might choose to work on a given case with the intent of angling for a monitor ship after their government service expires it would also reduce the appearance of favoritism in the selection of monitor these are worthy goals and in fact they would complement the precautions that are already set forth in the department's monitor principle but even assuming that such restrictions are appropriate the question remains who should impose them and when legislation is many virtues including the force of law the  matur of this body and a permanent unlike any guidance that the executive branch can issue but it also poses a risk where the practices in question are evolving and where a sufficient record of experience has not yet developed on which to fashion and mutable policy in such matters care must be taken to avoid imposing an inflexible set of rules that may fit one type of case but that restrict the ability of prosecutors and corporations alike to handle other cases maximum effectiveness now there are clearly sound arguments in favor of imposing a cooling off period on government lawyers before they become eligible to serve as monitors it is not inconceivable that an unusual case would warrant the involvement of a former prosecutor with experience in the same matter all parties would arguably benefit from having a monitor with knowledge of the matter at hand and from the efficiencies that such a monitor would bring to the engagement alternatively even if the monitor herself did not work on the same matter previously she might wish to partner with a former prosecutor who did for the purpose of accelerating her own learning curve and tapping into the expertise of her partner now it may well be that any benefits of this sort are simply simply are outweighed by the problems created by engaging former prosecutors as monitors on the same matters they handled while in government service but that issue has not arisen in any monitor engagements today over time as more cases involving monitors develop principal one may require adjustment to ensure that its purposes are satisfied at that point the department and the exercise of its law enforcement authority and with its ability to fine tune any changes that may be appropriate for existing policy would be well suited to make any necessary modifications at present however the department's corporate monitor principles appear to have worked i thank you again for the opportunity and i look forward to any questions that may be thank you mr safir although i believe we probably could get professor karats testimony and i get to vote on time counsel has suggested that probably we should go ahead and amble up there and say professor when we come back we should be given thirty minutes this is an attempt to like  you and make it difficult to kick the old we're not calling a time out for that reason we're just calling a recess so we can amble up there we will recess and come back thank you as the guidelines recognize simply creating a compliance program is not enough if no one is rigorously auditing is effective absent such ongoing assessments we can't be confident that a compliance program is not a paper program and this is not a hypothetical problem last year we out because it's the right even when it might be interpreted incorrectly the three hundred pound elephant in the room and the little bitty elephant was a three thousand pound elephant that what it is three thousand pound elephant and i guess i'll start with mr barker just down the line do you think that there should be a limitation on an assistant u s attorney going to work for a law firm that represented a  thought deeply about that my initial reaction to that is i think that first of all there is in current law prohibition on a person while and government employment and including  working on a matter while negotiating employment with a particular company or with a law firm that has an interest or a financial interest in a matter that they're working on wall or federal prosecutor would be working in government they wouldn't be able to work on a case that the ultimate future employer was involved in when the former prosecutor ultimately lands in a law firm that is actually working on matters before their former office i think the wall procedures whereby those former process could be kept from working on a particular matter first blush i would think that those are probably the but this is an engine initial reaction without having selfridge what your thighs a former prosecutor u s attorney and i guess it could extend a criminal case if you had made a deal made an offer but i don't you know there be some kind of line there some six months me begin by saying i second mr barco and i and i come to it from the perspective of a partner at a firm who hires people out of government and who was just rehired himself some nine months ago any time a new matter comes into the firm that touches on any work involving the department of justice i am asked did you have anything to do with this matter and the answer is yes a very solid and very high walls build so  that i don't touch it i don't go near it i'm not consulted in no way do i play any role in it i think first that's the standard approach i think and i do believe it's been effective just judging from my own experience of trying to recall and i should  one step and then we're going to yield to mr lester the york times report at least thirty to forty one monitors appointed deferred prosecution agreements ninety four government officials and twenty three were former federal prosecutors would you find that strange skilled when their former prosecutor well i will say that one of the key thought behind our problem geishas of these guidelines when i was in the department was precisely that it will not always be the case that a former prosecutor is the right choice to begin with and i think there are some large number of monitors who in fact did not have prior ties with the department but the second observation is former prosecutors do have a skill which i think is very useful in monitoring and that is particularly after frankly they enter private practice and then get into the business of internal investigations they become expert at conducting internal investigations and they become experts at ferreting out wrongdoing identifying wrongdoing devising ways to correct wrongdoing and so they do bring that skill to an engagement if it is a complex or esoteric industry or some subject matter which is not within their can then it doesn't make sense for them and they often do partner up with experts much as corporate lawyers often do or criminal lawyers often do when they in younger pricewaterhouse or other forensic accounts just to cite one example to assist them with the difficult subject matter so they do bring a skill it may not be a skill that encompasses all that's required for that reason they may partner with other thank you   what are the impediments that would be created if we legislate in this direction well i see one i see two problems essentially the first is conceptual the second is is a more practical one the conceptual problem is that i think it involves an encroachment on turf and that's constitutionally the department that's constitutionally the executive branch is because fundamentally the selection and use of a monitor  involves making decisions about prosecution and whether there should be prosecution and how to resolve the case short of prosecution which is at its core and executive that's that's a conceptual problem more practically i believe there would be situations where you would say you would very much want as a monitor as a corporation as a as a government to engage someone who had previously served in government service i think for just the reasons that i was just articulating to the chairman and finally i would just the where the law of unintended consequences and here's an example one of the considerations that we tossed about in thinking about these guidelines was whether there should be a bar against monitors who had a prior relationship with a corporation now at first blush you might conclude well of course someone who had a prior relationship with a corporation ought not serve as a monitor because that suggests a conflict but we wanted to allow for the possibility that the corporation may have engaged a lawyer or an outsider a monitor prior previously who came to know the compliance program who perhaps launched the compliance program and therefore made to continue using it as a monitor and i see from the g a o report that there is at least one such case just like that where the corporation and the government agreed to engage in monitoring who had a prior relationship with the corporation the point being you don't know what you're going to get when you pass a very broad and far reaching piece of legislation bar you may rule out circumstances that you don't want to  so do you believe that at a minimum at least that we should allow more time for the department to gain experience under the under the morford memo and inform us about the results of their experience in that regard before we proceed to consider legislation i do what i want to make clear it may be that the suggestions that are built in this legislation are very sound policy you know there's no question they could be but let's find out let's not look for a solution in search of a problem  is it your perspective that the department's efforts to formulate guidance designed to ensure the integrity and transparency in the selection of corporate monitors you think that those efforts have been successful will i do  and i think that's borne out by the g a o report which finds since the publication of those guidelines the department has abided by and complied with those principles thank you sir i appreciate your testimony and miss lawrence  i guess i would sort of take off the same general idea there based on your work studying the selection for compliance monitor you have any reason to believe that the justice department will not follow its own guidance and rather small for an elephant that there was no other andre in involved ok thank you mr franks and now to mr johnson the chairman of the subcommittee on constitutional law that get deferred prosecution agreements generally financial services i don't i don't think so because they have fallen in several areas including health care foreign corrupt practices and other areas that frankly one of my panelist probably can is transparency as to deferred prosecution agreements which by definition at some point involve the filing of charges and in almost every instance the filing or publication of the document that represents the agreement with respect to some number of non prosecution agreements it may be that there is not a disclosure of those agreements to the public at large and i must confess to being at something of a disadvantage i'm no longer in the department so i can't track this information but i believe  monitor that were selected in forty six of the forty eight cases and we were able to look at the background publicly available information about the backgrounds of those monitors and so we could see their employment histories of that type a more transparent and check and balance type system of selecting the monitors and the other is the question of the revolving door  and so you know mr safir you said these are executives and it's and it's a system of balances and checks of government but as mr barker mentioned most of the prohibitions on the revolving doors are statutory and there are other statutory limitations on executive power and if you don't have some type in the executive it's an interesting situation here we've got a member here on the on the republican side who is more or less defending and saying we don't want to restrict the obama administration from all these situations and yet we've got democrats that think will be a good idea to have general restrictions because it's  and you know i just don't you think that there has to be the legislative has to find ways because whether it's obama or whether it's bush the executive has a tendency to take care of their own that's just politics and human nature and there should be some way that the there's a check and balance on that natural tendency to try to take care of either friends or prosecutors or friends who contributed or whatever you don't see that as a as a as a necessary part of the system well you know i do as a general matter see that as an important part of the system but i think here we're dealing with a very unusual circumstance almost sui generis and that  confidentiality of the criminal process and it is also perhaps more than any other function a core function of the executive branch so i would argue that it's slightly different scenarios than the norm and that there has to be a greater sensitivity to imposing requirements on a process that is fundamentally prosecuted but i probation executive can decide to give probation but nevertheless the probation system and the option is created by the congress that's true of course there are many features of the probation system which are also not for public view including reports provided by the probation officer of the court that even the public cannot see so again as a conceptual matter i don't disagree with you mr chairman but when it comes to the selection of a monitor himself or herself because it's so much fundamentally a part of the prosecutor's decision just think great care has to be taken what about the idea of a judge been involved in it i mean that's again the judge is a judicial officials don't get in the prosecutor's executive but the judge has got ultimate discretion over the case when it comes into that type of situation the judge says you know don't you see that may be good for the judge to on as a check and balance here too i'd be very cautious because the first as a practical matter to involve judges in proceedings that have not yet ripened into a court matter and after all some of what we're talking about here are negotiations between the government and a defendant or a target that may never reach the point of a plea agreement of criminal charges being filed and and so your ready involve and judges stepping beyond the normal bounds as a practical matter to that may impose serious delays and judges are very good at what they do but they're very overloaded and to present more matters to them which would involve and would have to involve they're going to do the job right a careful look at who the monitors are what the facts of the case are what's the need what are the needs of the case the qualifications of each moderators could impose a serious delay professor care what about what about the executive have and total autonomy chairman i think that it's important to keep in mind that prosecutors in the criminal justice system particularly the federal system have a great deal of what would ordinarily be viewed as regulatory power ninety five percent or more of defendants in criminal cases plea pleas are largely driven by profit charging decision because of the penalties that apply and the incentives that are provided to defendants to plead guilty rather than go to trial and it's no different in the corporate arena in fact it may even be a more extreme example of in some more detail my written testimony and so prosecutors have tremendous power to put the case in a court of corporate defendant or potential corporate defendant in a situation where they really acting rationally need to accept one of these deferred prosecution or non prosecution agreements and they need to feed to the appointment of a monitor and i think that that really can or classic regulatory activity and when we look at regulatory activity we are concerned about the appearance of dealing we are concerned about the revolving door and so i think that congressional oversight over the activities of executive branch officials who are involved in regulatory activity is very branch that's something we try not to talk about too much the constitution in the judiciary committee is just kind of been a hands off subject most of the time but isn't there a separation of powers issue with the with involving judges in the process i mean can you expand that on tell tell us why there is tonight and i begin by i began by observing a separation of powers issue even with this branch but there certainly is with involving judges again judges are entrusted  with the job of adjudicating disputes they do that they do it well and only they can do it prosecutors are entrusted with the job of law enforcement which includes within it the decision about who to prosecute how to prosecute whether to prosecute and so the key question simply becomes in my view what are we talking about here is the selection of a monitor more akin to an adjudication of a dispute between two rival parties or is it more akin to a question of how to resolve a criminal case and how best to do it and what mechanism to do it and i submit that it is the latter rather than the former and because it is the latter it is at its core an executive function and not a judicial one you may have probably figured out that i agree with you but you know whenever we bring in a judge in you know usually in the regular judicial process if it were a judicial matter there would be some type of you know oversight of another judge i mean what w ould be the review in this setting if the legislation passed as written if a judge say made a decision on a monitor that some of the participants disagreed with would there be the standard you disha review process or w the legislation lock it in if if this legislation passed now it would have the force of laws i don't know what review process there would be it would be what i'm talking about the judges action under the legislation if the judge made which shows a monitor that someone didn't like to just go ahead and read and review that i mean would we be able appeal that judge's decision and it's hard to know frankly because there's no process that's laid out for about the issue i think that that was really my point out but from your perspective how well the deferred non prosecution agreements how well they worked over the years given the track record of the of the criminal justice system in general how do you think the stick out like a sore thumb blunt to prosecute a corporation is a choice between declining and prosecuting and the facts say you really need to prosecute because there were some wrongdoing here and that's your only choice as a prosecutor and you prosecute potentially bring down a corporation and you harm shareholders and pensioners and the public employees that's not a result anyone should want deferred prosecution agreements non prosecution agreements really do hit the middle ground which is critical because both observes law enforcement needs and the need another tool in the hands of law enforcement in a way that i believe can serve the overall cause of justice pretty significantly especially in these complex corporate involvements and i guess if it's our admission let me just ask you one question and i'll yield back mr chairman main problem you identified in your written testimony seems to be with regard to the lack of clarity in the justice department's role in resolving disputes between the company and the monitor how would you suggest it  debate as to say drug users where they get caught using drugs and a lot of times those on the democrat side of the aisle say that well we need to have the ability to to put them in treatment with the threat of prosecution later and i actually think there is a place for that i really do but you know it seems like we're kind of switching roles here a little bit there's a tremendous place for these different prosecution agreements they offer a new tool and i think to push them more in the direction of a litigious to try to press it into little into litigation is it's not a good move and unless there is some major problem with where we are right now and i just don't see this i've already expressed that back thank you mr franks and i don't i'm not against a per prosecution agreement or drug users who whether they're on the radio or not having an opportunity to clean up their act but i do think there needs to be some controlling of the system to make sure that people are selected for the right reasons to be the monitors and i don't think that having a judge involved or some other way to make sure that there are not cronyism involved is an important thing to make this system work mr brock miss lawrence indicated only four monitors have been selected after the guidelines of the more memorandum  the the g a o report written report there were two and now i guess there are four and so i don't know that we have sufficient data to really determine exactly how the morford memo is working but as i pointed out the morford memo itself may not have been intended to but it doesn't actually target exactly what this proposed legislation might target mr self or the fifth requirement of the first principle in the more for memorandum is a corporation should agree not to employ or become affiliated with the monitor for at least a year after the the the impetus behind that restriction or suggestion is that you don't want the possibility that the monitor while working with as a monitor was a long angle for employment by th court and understood and that's that there's no question that animates the same concern that we've been discussing today which is don't we worry that it will likewise be so motivated the short answer is it may well be sound policy and i want to come back to that point i'm not disagreeing that there is validity to these concerns and that it may be appropriate to impose that restriction my point is simply that it hasn't reached the level now where it's clear that it is a problem or that it would be a  problem and so if it does reach that point then let the department do exactly what it's done in these principles which is to formulate a suggestion and to put it out as guidance there's no reason why it can't do the same if the issue arises in this other contest let me ask you this we start our point issued march of two thousand and eight so we relied on the on the clinton administration and the bush administration to monitor themselves and yet they didn't do it till two thousand and eight the legislative branch might have been  slumbering and not coming up with something or maybe they proposed something that made this all the sudden become of front burner issue for the justice department but at the justice department has come up with the more for a memorandum let's assume they hadn't because they hadn't done it in the previous years should the legislative even if they think and you think the more from right is a good thing to do well what up to the legislature not say we want to pass such a law we should just wait on the us attorney to do it and  attorney general of the attorney general doesn't do it well that's their business they're not doing it we think it's a good government we think it's a grand thing but they're not doing it so we're not going to do it that's not that makes sense does it i think you put in those terms no it doesn't make sense instance what i worry about is it's an example of bad facts making about bad laws lawyers like to say the more memo although frankly not spurred entirely by the incident in the last rose around the same time you tr look beyond just of the moment and try to take into account of all relevant principles and try to consider all possible permutations down the road what i worry about is that if we take that same incident and we were moved by the moment to pass legislation which is fundamentally immutable it takes an act of congress to undo an act of congress then we're going to regret what we've done and if there's no pressing need to do it because the monitors are in effect and because or rather the principles are are in effect and because at least granted it's not a great body of evidence thus far but on what we know it's worked or where the department is abided by it then i don't think we take the next step in making immutable one more question i didn't see mr johnson come in before i started asking questions and apologize for that but he brought up the issue about the fees that have been paid some of the monitors and the ashcroft is the eight hundred pound gorilla and fifty two million dollars have any i looked at that or had the opportunity maybe mr larson look at exactly what charge and you said three hundred  nine hundred dollars an hour is that typical somebody monitor the dollar amounts i mean the corporations are kind of afraid this this person's got them in their grip and they can't question the charges should there be kind of an arm's bud's person will let me just offer a plug then for miss lawrence's report which included at least the earlier report actually the most recent recommendation that the department make clear its  role in the deferred prosecution agreements and make clear its role in serving as an ombudsman between the corporation on the monitor and in seeking to resolve disputes is an excellent recommendation as one i believe the department likely to follow in you're all going to be saved a few minutes by the buzzer but what do you do you have any want to follow up on that at all and we did a number of monitors and of the thirteen that we surveyed they reported that the fees range from three hundred to nine hundred dollars an hour we  avenue right mr stop or don't you think there needs to be somebody out there to be the good of the good girl well if now we're talking about engaging for example a judge for the purpose of fly specking agreements  for the legitimacy of the fees that are being charged and to moderate disputes in real time as it goes forward i think we really are driving too much what we're demanding too much of judges and i think we are encroaching too much in the executive function i think we are imposing delays and so i come back to ms lawrence's suggestion in their report that let there be a fully collaborative process including the department of justice if there are genuine disputes among these or other issues but it i mean i know some people don't care about corporations but some people do oh i represent them and i care deeply about them but i don't think that their interests are ill served or under served by the by the current structure i think my experience has been they are not shy about expressing their concerns and and the scenario that we're now describing obviously predated the more memo and it certainly is predated the directive recommendation rather than the department consider inserting itself more aggressively so i think it may be a different picture going forward this it actually preceded the subcommittee hearing so as i recall the sequence of events sometime in the early to mid perhaps two thousand and seven seven the department began its work considering whether my monitor princip would be appropriate in november i think it was of two thousand and eight now governor governor elect chris christie situation came into full view and then it was in march of two thousand and seven two thousand and seven i'm sorry march of two thousand  eight at the principals were promulgated and then you there after there was the first hearing on this matter i thank each of you for coming and giving your testimony i think we've got a great panel we've all learned a lot and we'll try to be if you have any other thoughts you'd like to submit we'd appreciate in helping us to come through