By Ankush Khardori / The Washington Post
When Attorney General William Barr announced the ousting of Geoffrey Berman — the U.S. attorney for the Southern District of New York — Barr also announced his permanent replacement would be Jay Clayton, the current chairman of the Securities and Exchange Commission. The announcement raised questions about whether there might be some political objective behind the move.
But while there may be some political motivations, there is a simpler explanation for Clayton’s selection: He’s the latest unqualified white guy to get promoted in the Trump administration. Tapping Clayton may be unique in the particulars, but it is no surprise in an area of the law where the practitioners are predominantly white men and one in which it is far easier to get ahead as a white man.
Clayton would easily be the least qualified person to hold the job as U.S. attorney in the Southern District in modern history. For nearly the last 30 years, every U.S. attorney had served a meaningful stint as a federal prosecutor, something Clayton never has.
Instead, he spent his entire career as a transactional lawyer — advising corporate clients like Deutsche Bank and Goldman Sachs on corporate deals and assisting companies with initial public offerings — at Sullivan & Cromwell, a large law firm based in New York City. That is not an easy job, but it requires a skill set that is distinct from what is required to be a good litigator: writing effective briefs, speaking well “on your feet,” crafting compelling narratives from facts, being persuasive at trial. In fact, there is no evidence that Clayton has ever thought about criminal law or criminal justice issues in his roughly 30-year career.
Clayton’s pre-SEC biography mirrors the resumes of thousands of current and former lawyers at white-shoe law firms throughout the country. The bulk of those people are, not coincidentally, also white men; since the racial and ethnic diversity of large law firms is almost uniformly terrible. (According to a study last year, minorities made up about one-quarter of law firm associates and less than 8 percent of equity partners, who, according to the report, remain “disproportionately white men.”)
All of this was fine preparation for the job of SEC director, where Clayton oversees both regulatory and enforcement functions of the agency. He has been perfectly serviceable but unremarkable and was described as someone with “a light touch on regulatory issues.”
But that is no justification for a promotion to one of the country’s most important prosecutors’ offices, nor is it a means to burnish litigation credentials, as it was reported how Clayton saw the job. Viewing the job as a resume builder is offensive to people who spend their whole lives training to become good litigators.
The rationale is also preposterous because Clayton will not be making the most important decisions; that duty falls to line prosecutors and their supervisors. The fact that he would be supervising these people does not make things better, either: You cannot competently supervise someone if you do not understand what they are doing. Being a federal prosecutor (a good one, at least) is not a simple job, and the risk and the consequences of Clayton making bad decisions — because he does not know what he is doing — are very real.
Some have suggested that Clayton’s experience representing large companies in private practice and then regulating them at the SEC makes him well-suited because the district covers the largest financial sector in the country. White-collar work is perhaps the most prominent and headline-generating part of what prosecutors in the Southern District do but only accounts for about 10 percent of prosecutions, according to data maintained by Syracuse University.
Even then, Clayton’s proposed ascension is emblematic of a much larger issue in the ranks of prosecutors generally and in particular white-collar prosecutors, which is overwhelmingly white men. The government does not make public its data on prosecutor demographics, but a 2015 study by Stanford Law School found that just 13 percent of all assistant U.S. attorneys were black or Latino, and 38 percent were women. The issue has become even starker under the Trump administration. Like Berman and perhaps Clayton, every U.S. attorney in a notable district for white-collar crime in this country — Brooklyn, New Jersey, Eastern District of Virginia, Chicago, Los Angeles and District of Columbia — is a white man.
Every single person in a leadership position in the Justice Department’s criminal fraud section — the 150-lawyer office in the district where I once worked and which touts itself as specializing in “complex white-collar crime cases throughout the country” — is white. The only two women head up the less-prominent administrative and training units.
Last year my old unit, which focuses on financial fraud, promoted seven people internally; all were white and all but two were men. (In case you’re wondering, I did not apply for a promotion.) When I left earlier this year, there was just one other nonwhite line attorney in the roughly 40-person office; and no black ones.
It is unclear to what extent this lack of diversity affects enforcement priorities in these offices for white-collar prosecutions in particular. But the effect appears to show up in the nature of the victims in the cases that prosecutors choose to prioritize. The Justice Department has spent years pursuing “spoofing”; the placement of fake orders to move prices in financial markets. The effort is being conducted by the department’s fraud section, in which I worked and contributed to the pursuit. But the “victims” are immensely profitable private high-frequency trading firms that make hundreds of millions — in some cases billions — a year.
By contrast, the government’s white-collar criminal enforcement work assists a far more diverse constituency — both racially and economically — where victims more closely mirror the demographics of the country. This would be the case if the government was stemming the tide of consumer financial fraud. We cannot expect things to meaningfully change unless and until we diversify the ranks of white-collar prosecutors, including those at the upper echelons of the profession.
For more than 20 years, Clayton represented some of the largest companies in the world. He is worth more than $50 million. By itself, no one’s background should disqualify them from serving in government, but we also cannot be blind to it. As a wealthy white man, Clayton occupies the most privileged demographic position in the country, and we have no reason to doubt that that experience — combined with his decades of experience in the corporate world — will make him more sympathetic to the interests of the wealthy and the powerful, at a time when the wealthy and the powerful do not need more help from our criminal justice system.
There will no doubt continue to be public debate surrounding Berman’s ouster and whether Clayton’s nomination should go forward under these dubious circumstances.
There is, however, a simple reason to oppose Clayton: He is not remotely qualified for the job.
Ankush Khardori is an attorney and former federal prosecutor who specialized in financial fraud.