In April, the New York Times published a nearly 8,000-word story about what James Comey was thinking last year while overseeing FBI investigations into both sides of the 2016 presidential race. Through interviews with the former FBI director’s friends and associates, the story pulled off the neat trick of explaining the reasoning behind the difficult choices Comey made as the election raged around him while leaving no doubt that he had grievously miscalculated.
A few days after I read and enjoyed the Times piece, a colleague recommended I go back and download an episode of the paper’s new morning podcast, The Daily, in which one of the journalists who worked on the story, Matt Apuzzo, talked in a conversational, first-person mode about what was going through his head as events unfolded. Over the course of 30 minutes, I listened on the edge of my seat as Apuzzo, with the help of host Michael Barbaro, offered a vivid, gripping glimpse into what it was like to report on Comey during one of the most extraordinary years in FBI history. Listening to the podcast, I felt like I was getting a candid, emotional play by play about how it all really went down from a savvy, well-informed friend sitting next to me at a bar.
I thought about that episode of The Daily as I read Jesse Eisinger’s The Chickenshit Club, a new book that opens the hood of the Justice Department and follows the churn of its changing character from the beginning of the Enron scandal in the early 2000s through the aftermath of the financial crisis. Eisinger is a senior reporter at ProPublica who won a Pulitzer for his investigative work on Wall Street wrongdoing, and The Chickenshit Club can be read as a reaction to the years he spent covering the financial world in the wake of the 2008 crash. Why, Eisinger wanted to know, had federal prosecutors managed to put just one relatively obscure banker in prison in connection with all the misbehavior that had led up to and followed the crisis? Whose fault was it that the Justice Department, which brought cases against more than 1,000 people in connection with the savings and loan scandals of the 1980s, had become timid and soft on corporate crime since the turn of the century?
Named after a phrase James Comey once used to describe unambitious prosecutors who never lost cases because they played it so safe, Eisinger’s book describes the onset of a new age of caution and impotence at DOJ. His account is animated by clenched-jaw conviction: Eisinger sees a profound moral tragedy in the department’s failure to hold Wall Street executives criminally accountable for their role in causing and profiting from the crisis, and he believes the very notion of justice has been undermined by the government’s willingness to let wealthy, lawyered-up executives walk while zealously filling America’s prisons with poor people.
Eisinger’s book makes the case that, starting with the controversial prosecution of the Arthur Andersen accounting firm in 2001, a combination of political pressure, changes in the institutional culture at DOJ, and aggressive lobbying by the defense bar led to a “blunting and removal of prosecutorial tools in white-collar corporate investigations.” Thanks to the adoption of policies that were overly deferential to executives, Eisinger argues, and a loss of appetite at the highest ranks of the DOJ for the complexity and risk inherent in white-collar prosecution, the government allowed its hands to be tied in the face of financial crimes that “sapped the economy and created an uneven playing field” for investors. “The government failed,” as a former top prosecutor from Manhattan’s Southern District told Eisinger after the financial crisis. “We didn’t do what we needed to do.”
The Chickenshit Club is an admirably lucid, nuanced book about the tangle of complicated changes that, over the past decade or so, converged to make the DOJ less bold and less capable in its pursuit of corporate criminals. But as I took in Eisinger’s findings—his detailed accounts of financial deals gone wrong and hard decisions fumbled by DOJ officials—I couldn’t help but wish that the book that came out of his reporting was more like that Times podcast. As much as I was learning, I wanted to feel more like I was inside Eisinger’s head, following along with his thought process as he reported out his story and got to know and understand its main characters. More than that, I wanted him to show me the buildup of the passion that fuels his book—how he came to believe in the ideas he argues for in it and how he learned the system well enough to authoritatively evaluate its breakdown.
Instead, Eisinger begins his narrative with his point of view fully formed, making clear from the start that he wants to leave his readers no less worked up than he is about the moral blindness of a justice system that’s more tolerant of large-scale financial fraud than street-level drug dealing. To this end, Eisinger recounts one tale after another, with disappointment and sometimes outright disgust in his tone, about banks lying to shareholders about their balance sheets, political appointees in the Justice Department electing not to charge individual executives out of fear that they’d lose, and companies paying former prosecutors millions of dollars a year to defend them in court.
It’s no insult to Eisinger’s explanatory powers to say that the financial crimes he describes in the book are extremely hard to grasp. Indeed, the impossible complexity of most white-collar crime is one of the central obstacles to prosecuting the people who indulge in it, and the details of fraudulent transactions are often so complicated that when government lawyers present their evidence to jurors, they have to simplify their allegations to a radical degree in order to make themselves understood. One way Eisinger could have compensated for the opacity of white-collar crime—one way he could have made the more confusing parts of the narrative more viscerally bracing—would have been to insert himself more into the story. No doubt he had his own share of difficulty wrapping his head around how exactly some of these executives broke the law; by letting readers watch him fight through the thicket, I suspect he could have injected a level of human clarity into a subject that is inherently—perhaps even deliberately—hard for ordinary people to connect with.
That doesn’t mean the insights that Eisinger seeds throughout The Chickenshit Club aren’t persuasively communicated. Three in particular come through loud and clear. First, that there is a highly trafficked revolving door between the DOJ and private law firms, and that both sides changed how the other did business—“ultimately to the benefit of corporations.” Second, that within the population of lawyers, regulators, judges, and politicians who have concerned themselves with white-collar crime since 2001, many have exhibited a bizarre protectiveness toward corporations and the executives who run them. And third, that when prosecuting white-collar crimes, government lawyers have too often decided they’re satisfied shaking down companies for settlement money paid for by shareholders, instead of taking on the much harder task of bringing charges against individual executives.
With these arguments as its backbone, The Chickenshit Club reads at times like a reported polemic—an argument delivered by an omniscient, disembodied narrator who is less concerned with emotionally engaging his readers than with articulating a forceful diagnosis. Matt Apuzzo on The Daily, on the other hand, struck me as a self-conscious explorer—a human being delivering a propulsive, intimate account of his journey from ignorance (when he and his colleagues started working on the Comey story) to enlightenment (when they finished it). In contrast, the only hint we get as to how Eisinger felt and what he was thinking about as he worked on this book comes on the acknowledgments page. There, from the safety of the back matter, Eisinger writes:
As a financial journalist, I have lived with the crisis for well over a decade. … After I wrote a series of stories on the collaterized debt obligation market for ProPublica with my colleague Jake Bernstein, I waited for the government to charge bankers with criminal wrongdoing. And waited. The indictments never came.
I wish there were more material of that nature in the book itself—more about what made Eisinger care about this subject in the first place, more about how he first formulated the questions he wanted to answer, and more about how he went about answering them.
Eisinger, I suspect, is too disciplined and traditional a journalist to have subsumed his arguments about the DOJ within a first-person story of discovery. But while it’s impressive to me how self-assured he is in his judgment—especially when making pronouncements about who was right and wrong in extremely arcane disputes—that assuredness was no doubt earned through years of hard work, and The Chickenshit Club would have had a more sustained, lively pulse if it had been framed around that process.
I suspect some people would tell me that kind of “process”-oriented journalism is precious and self-aggrandizing—that building a story around the so-called vertical pronoun inevitably takes the focus off the story and puts it on the storyteller. These people would note that it’s no accident I’m comparing The Chickenshit Club to a podcast—a journalistic form that is dominated by narratives in the key of “how I got the story.” No doubt it’s a technique that can be misused and overused and used as a crutch. (Every once in a while you’ll read or hear a piece about how someone didn’t get the story. While there are some good entries in this mini-genre—Serial, Ron Rosenbaum’s 1997 Esquire piece about looking for and failing to find J.D. Salinger—they usually read like long-winded excuses that would have been better off left in the drawer.) But there is nothing embarrassing about letting readers into your head as you solve a puzzle when doing so brings them closer to the action. Among other things I would have loved to hear about Eisinger’s relationship with Jed Rakoff, one of the few heroes in the book, and someone who clearly had a powerful influence over the way Eisinger thinks. By the same token, I would have also loved to hear about his relationship—or even lack thereof—with Lanny Breuer, the “precise and buttoned-down” criminal division chief who serves as an avatar in The Chickenshit Club of everything that went wrong at DOJ under Obama.
I can think of no subject that calls out for a personable, transparent narrator more urgently than financial crime, which requires journalists to write about abstract investment “instruments” and deceptive accounting procedures that by their nature are less immediate than “blue-collar” crimes like murder and drug dealing. Getting to sit firmly on the author’s shoulders while trying to wrap your head around stuff that complex can help a reader assimilate facts, form reactions to them, and remember them. At the very least, having a little more Jesse Eisinger in The Chickenshit Club would have made the book more accessible. It could have also created room for Eisinger to engage in a less inert, more discursive mode as he felt his way toward the truth.
The Chickenshit Club by Jesse Eisinger. Simon and Schuster.
Read all the pieces in the Slate Book Review.