Push Back

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As in most cautionary tales, the retribution that concluded the Arthur Andersen saga was swift and violent. Six years later the effects still echo through the justice system as prosecutors try to calibrate penalties that appropriately punish corporate misdeeds without putting companies out of business. It's a work in progress.

"Individuals are much more likely to get prosecuted than companies these days," says Todd Harrison, a partner at Patton Boggs and a former federal prosecutor. "There's much more awareness about the consequences of prosecuting companies, but individuals are seen as fair game. They're the ones who engaged in wrongdoing."

The Thompson Memo, with its inducements to waive privilege, was engineered to facilitate this strategy. But the zeal with which prosecutors applied it was troubling.

In other words, it's the rare civil liberties case for that strange creature, the corporate person. Eight years ago, at the height of an economic boom, everyone assumed the Bush administration would be among the most business-friendly in history. That corporate prosecution has swung so far in the opposite direction on its watch speaks to the sheer magnitude of Enron and the other scandals. But as the administration winds down, a rare convergence offers a chance to balance the scales.

"That this is coming so late in an administration indicates to me that Mukasey and the administration really do want to get something done," Harrison says. "It makes sense on all sides."

Contributing Author

Steven Andersen

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