Jose Luis Magana/AP Photo
Acting Associate Attorney General Benjamin Mizer speaks as Attorney General Merrick Garland listens during a news conference at the Department of Justice in Washington, March 21, 2024.
The Antitrust Division of the Justice Department has demonstrated by its actions a determination to hold corporations accountable. Its antitrust cases against Google and Apple, active investigations into Ticketmaster and UnitedHealth, crackdowns on meatpackers and realtors, and successful merger challenges in airlines and publishing testify to this open combat against corporate power.
Unfortunately, the same cannot be said of the rest of the Justice Department, as a recent report from Public Citizen on corporate criminal prosecutions shows. According to the U.S. Sentencing Commission, in 2023 DOJ prosecuted 113 corporations, up from 99 in 2022 and just 90 in 2021, which was the lowest number in a quarter-century. Even the 2023 figures are still sharply lower than any year of George W. Bush administration, and lower than two of the four years of the Trump administration. And for broader context, the 113 prosecutions last year equal about 37 percent of the 304 prosecutions waged in 2000.
Moreover, 76 percent of the corporations DOJ prosecuted in 2023 had 50 or fewer employees. Large corporations are far less represented among the array of prosecuted companies, regardless of their culpability for corporate crime.
This has drawn the attention of five accountability-minded organizations, which today asked for a greater commitment to corporate criminal enforcement in a letter to President Biden and Attorney General Merrick Garland obtained by the Prospect. Following what has now become a mantra amid progressives in D.C.—“personnel is policy”—the groups focused on vacancies in the top levels of DOJ leadership, which they say would be better served with appointees “who can be counted on to aggressively protect the public interest.”
Chief among the concerns for the Revolving Door Project, the American Economic Liberties Project, Demand Progress Education Fund, the Institute for Local Self-Reliance, and the People’s Parity Project are the two top deputies to Garland at main Justice. One of them, Deputy Attorney General Lisa Monaco, is a familiar antagonist to reformers, especially since she announced a “safe harbor” policy whereby companies engaged in mergers and acquisitions can volunteer information about wrongdoing at the target company and eliminate their liability. As Sen. Elizabeth Warren (D-MA) has explained, this policy constitutes a double whammy of encouraging mergers and neglecting to prosecute corporate crime.
Monaco has a well-documented history as a partner at corporate defense firm O’Melveny & Myers, where she represented Apple, and a principal at WestExec Advisors, where clients included Google and other large corporations.
In 2023, the Justice Department prosecuted 113 corporations, up from 99 in 2022 and just 90 in 2021, the lowest number in a quarter-century.
But less well known is the number three member of the Justice Department leadership, Benjamin Mizer. He is currently serving as acting associate attorney general, after Vanita Gupta stepped down in February. Mizer was Gupta’s principal deputy, and therefore automatically stepped into the role. But while this transition was announced at a press event February 1, there was little fanfare associated with Mizer’s ascension.
Perhaps that’s because of Mizer’s stint at BigLaw giant Jones Day, and the litany of corporate clients he represented. That includes serving as lead attorney for Walmart in a case defending the company from charges of facilitating the opioid epidemic among members of the Cherokee Nation in Oklahoma. In that case, Walmart tried to force the tribe to release private data like names and birthdates for every one of its citizens.
“Mizer’s resume is yet another example of a profile that has repeatedly failed to protect the American people from the most rapacious and amoral corporations,” the letter reads. “We lack confidence that Mizer should be trusted to advance the administration’s commitment to ensuring that the law applies to everyone, no matter how wealthy or connected.”
In response to questions from the Prospect, the Justice Department highlighted Mizer’s on-the-record remarks during the announcement of the monopolization case against Apple, as well as statements on defending seniors from fraud, reducing gun violence, and protecting consumers from unsanitary conditions at Family Dollar warehouses. A DOJ spokesperson called Mizer an active, public-facing leader.
MIZER WAS ONLY AT JONES DAY FROM 2017 TO 2022, and during the George W. Bush administration had a short stint at another corporate law firm, WilmerHale. The majority of his career has been spent in the public sector, as the solicitor general of Ohio, in the Obama Justice Department in the Civil Division, and now in the Biden Justice Department. (Mizer briefly held a position at the U.S. Office of Personnel Management in 2022 before re-entering the Justice Department.)
But in that short time in private-sector law, Mizer racked up an impressive list of corporate clients. At WilmerHale, he worked for telecom giant Verizon, and at Jones Day his client list included Procter & Gamble, American Airlines, insulin manufacturer Sanofi, the law firm Dentons, and Walmart. Between January 2021 and May 2022, Mizer made $5.4 million as a partner, according to Reuters.
The Justice Department said that Mizer complies with all department recusal policies, and has recused himself from any matter where a former client of his is involved.
Mizer represented Sanofi in an antitrust case, in which the company was alleged to have misused patent protections to block the development of generic competitors to its insulin product, known as Lantus. Sanofi lost that case, and it led to the Federal Trade Commission’s focus on the “Orange Book,” a publication of government-approved drugs and patent protections, where companies like Sanofi would just incorrectly list patents that were unrelated to the active ingredients in the medications, leading to a lack of competition and higher prices for patients.
In another case in 2021, Mizer successfully defended American Airlines from charges that it profited from hotel rooms on land stolen from an individual by the Cuban government. Back in the 2000s, Mizer was on a legal team that helped Verizon fend off lawsuits from consumers over participating in NSA warrantless spying programs.
The Walmart case was a particular red flag. Multiple plaintiffs, including the Justice Department, sued Walmart for “knowingly” filling opioid prescriptions from pill mills for years, and failing to report suspicious orders to the Drug Enforcement Administration. With Mizer’s support, Walmart preemptively sued the DOJ to try to substantiate its argument that the opioid prescriptions constituted legal sales. Even the notoriously conservative and pro-business Fifth Circuit Court of Appeals rejected that effort.
In his short time in private-sector law, Mizer racked up an impressive list of corporate clients.
Mizer defended Walmart in other cases too, including one brought by New York state. But the Cherokee Nation case was particularly notable. The Cherokee Nation said that their rates of opioid abuse were the highest in America, with one out of every 1,000 members of the tribe dying from overdoses. Mizer served as Walmart’s lead attorney in the case.
Walmart first questioned the tribe’s authority to file suit and the legal existence of the tribe itself. As part of the proceedings, Walmart demanded a list of all 400,000 Cherokee members, in order to match against pharmacy data. Cherokee Nation lawyers called this unprecedented and dismissive of tribal sovereignty, noting that no other state had to supply this data in their opioid cases. Jones Day signed the filing, and Mizer personally argued in court documents in favor of the data requests. That document was specifically cited by Cherokee Nation lawyers as “eight pages of exaggeration, innuendo, and misdirection.”
A federal court ruled against Mizer and Walmart, and the case was eventually settled in 2022 for an undisclosed sum and no admission of wrongdoing. The tribe’s share of opioid settlements against Walmart and a number of other companies totaled approximately $100 million.
The Biden Justice Department has generally had a good record on tribal sovereignty, supporting law enforcement, public safety, and environmental justice on tribal lands with resources and planning, as well as defending tribes in voting rights lawsuits. But Mizer’s actions while in private practice were condemned by the Cherokee Nation at the time as disrespectful.
In response to questions from the Prospect, a DOJ spokesperson said that Mizer has worked on tribal sovereignty and public-safety issues. They cited a private event last month with Interior Secretary Deb Haaland, where Mizer pledged his support for tribes, and a public event on the DOJ’s official schedule, where he touted “greater access to services for crime victims in historically marginalized communities and on Tribal lands.”
This has not mollified the groups that wrote to the president today, which connected declines in corporate criminal enforcement to a lack of sufficient will and commitment to uphold the public interest among top-level appointees at DOJ. “The frequent revolving-door movement of prosecutors and staff between the DOJ and America’s largest corporate law firms—and the resulting relationships and worldviews that develop from defending big corporations against government enforcement—almost certainly have a negative impact on DOJ decision-making,” they wrote.
In at least one area, Mizer’s history does reinforce these claims. Mizer served in the Civil Division during the Obama administration, when it handed out a litany of weak settlements to banks implicated in the mess of mortgage and securitization fraud. Mizer had a fairly prominent role in settlements with Goldman Sachs, Deutsche Bank, Credit Suisse, and HSBC. I can quote myself about these settlements, which “merely [sent] a cut of profits from long-ago fraudulent activity to a shakedown artist, also known as U.S. law enforcement.” They mainly served to create press conferences where people like Mizer would sound like they put the hammer down on the banks, while doing nothing to generate meaningful accountability or relief for homeowners.
If that’s the mentality in the non-antitrust divisions of the Justice Department, it would be truly damning. And while there have been notable corporate prosecutions, particularly in the crypto space, given the continued tendency under Biden to use settlements to avoid prosecution of large corporations—including with Teva Pharmaceuticals, British American Tobacco, and an Illinois subsidiary of AT&T—there’s reason to believe that mentality still exists.
There’s time for DOJ to change course, by reopening the non-prosecution agreement with Boeing, and bringing to a resolution investigations of Abbott Labs over the recent baby formula crisis and Tesla over deception in promoting self-driving cars. But as ever, who makes these decisions, and whether they have the inclination to prosecute, matters. That’s why Mizer and others are in the spotlight.
