Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. In this episode, Matt Kelly and I take a deep dive Michael Cohen’s guilty plea and DAG Rod Rosenstein’s ‘substantially responsible” amending of the Yates Memo. Since Cohen said in the plea agreement that he only lied to Congress to support what he believed Trump wanted; not at Trump’s direction. It gives us the opportunity to explore a gray area about accountability for senior execs complicit in misconduct or to use Rosenstein’s language have ‘substantial involvement’ but not substantially responsible for it. It provides several new lessons learned for the compliance professional (and some old ones as well).

Some of the highlights from this podcast are:

  1. What does ‘substantially involved in or responsible for the misconduct’ actually mean?
  2. What does ‘substantially involved in or responsible for the misconduct’ actually mean?
  3. If the voting public, and employees; don’t see justice served, for legal distinctions they may neither appreciate nor care about, that’s going to blunt their interest in talk about ethical conduct; will it will corrode the trust they have in organizations?
  4. What if the senior executives are complicit in the misconduct by fostering a poor control environment; and yet they personally were not substantially involved in the misconduct?
  5. Will this drive up the importance of strong governance? For example, where were the auditors, inspecting the control environment? Or would this lead to shareholder lawsuits against the board?
  6. How would the Justice Department apply the Rosenstein policy to those circumstances?
  7. What were the key lessons learned for the compliance practitioner?