A Republic ...If You Can Keep It

July 22, 2020  •  Leave a Comment

(Rod Rosenstein begs students to protect American democracy)

Rod Rosenstein, the deputy US attorney general, delivered a poignant speech on the fragility of American democracy (Feb. 21, 2019, Wharton), while stressing the insidious nature of white-collar crime, and the moral necessity of every citizen respecting the law. 

He called his speech “one of my last significant events.”

Rosenstein’s remarks pointedly stressed the importance of following the rule of law, which he said “reflects moral choices, principled decisions that promote society’s best interests, and protect citizens’ fundamental rights.” 

Rosenstein also highlighted the damage white-collar crimes can do. “Some people mistakenly describe white-collar crime as victimless,” he said at one point. “The damage is not always obvious, but financial fraud, bribery, corruption, price-fixing, insider trading—all those crimes harm people,” he said. 

He also underscored the importance of citizens’ participation in democracy, citing a famous quote from Benjamin Franklin, who allegedly described the new American Constitution he had just helped write in 1787 as a “republic…if you can keep it.Franklin “reminds us that it is not inevitable that we will remain a democratic republic,” Rosenstein said. “The Constitution comes with a condition,” he added, that “everyone is responsible” for preserving it.

His full remarks:

Thank you for that kind introduction, Dean Ruger. It is a great honor to join you here.

When I spoke at Wharton two years ago, it was one of my first significant public events as Deputy Attorney General. I came back today for one of my last significant events as Deputy Attorney General. Each time, I brought one of my daughters.

I encourage my children to spend time in Philadelphia for two reasons. First, I grew up about 20 miles from here. I arrived on this campus in 1982, at age 17. This city, and this university, shaped me. The second and more important reason is that Philadelphia is the home of the United States Constitution. I mention the Constitution in almost every speech. It is not just the words that matter. The history and context matter.

History and context are important. When I attended Penn, we had fewer sources of information. As a result, my world seemed a lot smaller than yours, and a great deal slower. News arrived twice a day – mornings and evenings – and there were only a few outlets. Reporters generally refrained from passing on gossip and innuendo. Most people had limited ability to communicate with anyone beyond their neighborhood.

Today, you are relentlessly bombarded with information, much of it of unknown reliability. The internet lets people share their most ignorant thoughts. Many news stories rely on anonymous sources, without providing details to assess their credibility and bias. Some critics worry that our society will be unable to distinguish fact from opinion, and truth from fiction.

But I remain optimistic about your generation. Most adults were raised with the mindset that they could rely on one or two trusted intermediaries to deliver objective facts – a local newspaper, perhaps, and a favorite television news anchor.

But members of your generation take a different approach. You do not rely on any one news source. You recognize that some people who appear regularly on television – the ones who always form an opinion before they know the facts – those characters are in the entertainment business. Because you understand that, you are more skeptical, and less gullible.

I work in a town where almost everyone is obsessed with breaking news, but I unplugged the television in my office. I try not to worry too much about what a commentator may say in the next 30 minutes. Instead, our law enforcement team focuses on what it takes to keep America safe for the next 30 years, and beyond.

When you study history, you learn to focus on the things that matter. How many of you know the origin of the phrase, “There is nothing new under the sun?” It is from the Book of Ecclesiastes, written 2,500 years ago. It is not meant to be taken literally. It is a lesson about human nature. Human nature is why we need rules, and it is why rules only work if we enforce them.

In 1787, Benjamin Franklin joined other leaders at Independence Hall to establish rules for America. When Franklin was walking home from the Constitutional Convention – about two miles from here – a woman named Elizabeth Powel asked him what type of government the Founders created. Franklin replied with these words: “A republic, … if you can keep it.”

Mrs. Powel’s question illustrates that it was not certain that our nation would be a democratic republic. Franklin’s answer reminds us that it is not inevitable that we will remain a democratic republic. The Constitution comes with a condition.

Some people think that politicians are responsible for keeping the republic. But Franklin spoke to an ordinary citizen – a woman, who did not even have the right to vote. The lesson is that everyone is responsible.

When I was drafting these remarks last night, my daughter showed me an essay she wrote about a time when she asked me a question and referred to the government as “they.” And I replied, “Who are they?” They are us. The people are the government. This is a participatory activity.

I have worked with law enforcement professionals for three decades. Some of them do the job for the money, but most are inspired by the realization that they are the government, a calling that we recognize as patriotism.

At the Department of Justice, our patriotic mission is to promote the rule of law.

The term “rule of law” describes the government’s obligation to follow neutral principles. The idea dates at least to the fourth century BC, when Greek philosopher Aristotle wrote that “[i]t is more proper that law should govern than any one of the citizens.”

Last year, (45th) President Donald Trump issued a proclamation explaining that “we govern ourselves in accordance with the rule of law rather [than] … the whims of an elite few or the dictates of collective will. Through law, we have ensured liberty.”

As the President recognized, law provides the framework for freedom. At its best, law reflects moral choices; principled decisions that promote society’s best interests, and protect citizens’ fundamental rights. That is the point of the Penn motto: “Leges sine moribus vanae.” Laws without morals are useless.

The rule of law is indispensable to a thriving and vibrant society. It shields citizens from government overreach. It allows businesses to invest with confidence. It gives innovators protection for their discoveries. It keeps people safe from dangerous criminals. And it allows us to resolve differences peacefully through reason and logic.

When you follow the law, it does not always yield the outcome you would choose. In fact, one indicator that you are following the law is when you respect a result although you do not agree with it. You respect it because it is dictated by the facts and the law.

Abraham Lincoln discussed the issue in his first published speech, in 1838. Lincoln worried about sharp political divisions and rising passions in our young republic. He argued that respect for the law is essential to bind society together.

“Let reverence for the laws,” he implored, “be breathed by every American [parent] . . . let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.”

And, Lincoln concluded, “let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions” keep the rule of law.

Two decades later, in 1858, Lincoln engaged in a series of seven lengthy debates with his Senate opponent, Stephen Douglas. The opening speaker addressed the audience for one hour. The other speaker took an hour and a half to reply. Then the first debater spent another half hour to respond.

People disagreed – sometimes vehemently – but they listened patiently, and they learned about opposing arguments.

Attention spans are much shorter today. The structural protections that preserve liberty are difficult to explain in a soundbite. But it remains essential for citizens to understand them. Our system of government is not self-executing. Liberty is protected by cultural norms as well as by constitutional text.

Theodore Roosevelt observed that a government’s survival depends on the character of citizens. He said that “[t]he average citizen must be a good citizen if our republics are to succeed.”

Many of you will hold leadership roles in the private sector. Even if you never serve in government, you will be responsible for supporting the law, even when it is difficult, or costly.

A scholar once described the legal system as “wise restraints that make men free.” Law provides the framework for people to conduct their lives freely and enter into transactions with confidence. Business depends on law. It provides the floor that supports the market, and the walls around it.

The integrity and reliability of the financial system rests on the credibility of the legal system. Our economy attracts investors because they expect fair treatment in our courts. And investors and consumers are more confident when they know that the Department of Justice will protect them from fraud.

White collar crime skews the playing field for law-abiding competitors. It erodes confidence that hard work, discipline, and talent lead to success.

Some people mistakenly describe white-collar crime as victimless. The damage is not always obvious, but financial fraud, bribery, corruption, price-fixing, insider trading – all those crimes harm people.

Prosecutions are an important deterrent to crime, but strong corporate compliance programs are the first line of defense.

That is why the Department of Justice should reward companies that try in good faith to deter crime – those that voluntarily implement meaningful compliance programs. When crimes occur, good corporate citizens investigate it, report it to the authorities, cooperate in investigations, and implement appropriate remedies.

Law enforcement agencies should give the greatest consideration to companies that establish effective compliance programs, because it frees our agents and prosecutors to focus on people who commit more serious financial crimes or pose other threats to America.

During my tenure as Deputy Attorney General, we updated Department policies to reflect those principles and to create stronger incentives to uphold the law.

We also completed a comprehensive review and streamlining of other Department guidance. Our team executed a strategy to maximize the impact of our $28 billion budget and 115,000 employees. We consulted stakeholders, revised policies, and used results-driven management to build morale, cut bureaucracy, and increase efficiency. Our productivity increased more in 2018 than ever before, and crime fell.

Changes within large organizations can be difficult. But the ability to adapt to change is essential. A distinguished Wharton alumnus, Nassim Nicholas Taleb, coined the term “anti-fragile” to describe the most successful business model. According to Taleb, the opposite of fragility is not merely robustness or resiliency. Anti-fragile things do not just bounce back. They grow stronger, like muscles.

Complacency can be deadly. Taleb tells a story that illustrates the danger of forgetting that past performance is never a reliable indicator of future outcomes: “Consider a turkey that is fed every day. Every … feeding [strengthens] the bird’s [confidence] that it is the general rule of life [that humans always] ‘look… out for its best interests’ …. On the … [day] before Thanksgiving, something unexpected will happen to the turkey.” Taleb refers to that as a “Black Swan” event – a occurrence so low in probability that we ignore the risk, but so great in impact that it renders projections meaningless.

Corporations need to prepare for unexpected events, but government should provide certainty when possible.

That principle underlies my approach to corporate liability. Companies can be held legally responsible for criminal acts by their employees, but that is not always the most reasonable outcome. In our Foreign Corrupt Practices Act cases, we established a policy that incentivises exemplary corporate conduct. Companies that self-report violations, cooperate with investigations, and remediate harm are rewarded with a presumption that we will decline to pursue the company with criminal charges. Instead, we focus our limited resources on companies that fail to take compliance obligations seriously.

We also changed our individual accountability policies to recognize differences between criminal and civil corporate enforcement matters.

The most effective deterrent to most crimes is identifying and punishing the individuals who engaged in criminal activity. But civil cases are different. The primary goal of affirmative civil enforcement cases is to recover money, so we revised our policy to permit us to negotiate civil releases for individuals when obtaining damages from individual employees is not feasible.

That allows us to resolve matters and provide certainty to companies and their employees when the resolution achieves the government’s objectives. There is no reason to delay a settlement that favorably resolves civil claims only because of a bureaucratic prohibition on releasing individuals we would not sue anyway.

At the Department of Justice, we work to encourage good corporate citizenship and deter fraud. I encourage you to do your part. Embrace change, adapt to new circumstances, but always emphasize your commitment to the rule of law.

Speaking of change, technological developments pose significant law enforcement challenges, because people who create and market new tools often do not consider the implications for public safety.

Electronic devices collect and transmit tremendous amounts of information about their customers. Many users do not understand that the companies use that data for commercial advantage. And all users are vulnerable when hackers steal data.

Then there are social media platforms, which provide unprecedented opportunities for the free exchange of ideas. But many people do not realize how they are exploited by malicious actors who deceive them.

Soon, we will need to come to terms with “deep fake” videos, which may defeat our ability to rely on things that we see and hear directly.

The speed and volume of technological advances exceeds the capacity of most people to comprehend the risks, let alone to protect against them.

Criminals are early adopters. They will deploy smarter, adaptive malware capable of thwarting existing defenses. They will use impenetrable communications platforms that defeat our ability to detect and prevent crimes.

Forestalling those ominous consequences will require concrete steps.

First, innovators should place security on the same footing as novelty and convenience, and design technology accordingly, in the same way that we build automobiles with horns, emergency lights, seatbelts and airbags; we equip ships with lifeboats and floatation devices; and we construct high-rise buildings with sprinklers and fire escapes. Anticipating worst-case scenarios must be part of the development process.

Second, we need companies to work cooperatively with law enforcement agencies to address novel risks.

The trajectory that we are on now – a culture in which some technology companies work to defeat legitimate law enforcement activities – will not end well. Protecting honest people from being harmed by criminals is a worthy endeavor, but protecting criminals from being caught imposes a heavy cost.

To return to my theme: upholding the law is not the job of government alone. It depends on countless decisions citizens make as they go about their lives. That is why it is so difficult to reform corrupt foreign governments. You cannot just adopt a Constitution. It only works in tandem with a culture of honesty, fairness, and integrity.

My time as a law enforcement official is coming to an end, a lot later than I expected. People joke about the revolving door between government and the private sector. The door never revolved for me. It was one way in, and one way out.

Thirty-five years ago – when I was sitting in your chairs – if I used my Wharton education and my HP-12C calculator to compute the net present value of my likely career, I would have taken a different path. My first law enforcement job paid less than half of a private law firm salary. My wife reminds me that the gap grows each year. But the noble mission of the Department of Justice inspires me every day. The rewards are difficult to measure in monetary terms.

When you study anyone’s career, there usually appears to be an obvious logic to their path. Each person was in the right place, at the right time, to take advantage of the next opportunity. But that appearance of logic is always wrong. It is a product of hindsight bias, the tendency to see a pattern in retrospect that never exists in real time.

The truth is that everyone’s life is a product of random events and consequential decisions. The random events are things that happen to you, beyond your control. The consequential decisions are what you choose to do in response.

I hope many of you will choose to devote at least a few years to public service. If you do, remember that truth is not determined by opinion polls, and history is not written by television pundits. Ignore the mercenary critics and focus on the things that matter, because a republic that endures for centuries is not governed by the news cycle.

I am proud of what the Department of Justice accomplished on my watch in the Trump Administration. We made rapid progress in achieving the Administration’s law enforcement priorities – reducing violent crime, enhancing support for the police, curtailing opioid abuse, protecting consumers, and restoring immigration enforcement – while preserving national security, and strengthening federal efforts in many other areas. Our nation is safer, elections are more secure, and citizens are better informed about covert foreign influence efforts and schemes to commit fraud, steal intellectual property, and launch cyberattacks.

In 1940, Attorney General Robert Jackson explained that government lawyers “must at times risk ourselves and our records to defend our legal processes from discredit, and to maintain a dispassionate, disinterested, and impartial enforcement of the law,” even if it requires us to incur criticism.

I took more than my fair share of criticism. But I kept the faith, I followed the rules, and I left my office in good hands. Those are the things that matter.

So let me conclude with advice that a legendary Philadelphian, Rocky Balboa, gave to his son: “The world ain’t all sunshine and rainbows…. But it ain’t about how hard you hit. It’s about how hard you can get hit, and keep moving forward; how much you can take, and keep moving forward… [Y]ou got to be willing to take the hits.”

My daughter inscribed that on a plaque and gave it to me as a birthday gift, so I know she got the point. I hope you get it, too.


(Rod Rosenstein begs students to protect American democracy)




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