There was plenty of outrage to go around after last decade’s financial crisis. Advocates for limited government were livid at the use of public financial commitments to save institutions that should have been allowed to fail. Progressives agreed with that sentiment, but they were also angry about the lack of prosecutions of financial executives. Jesse Eisinger, a Pulitzer Prize–winning journalist for ProPublica, is in the latter camp. In his new book, The Chickenshit Club, he takes on the Justice Department bureaucracy that decided against those prosecutions.

The book’s provocative title comes from a story Eisinger tells in the introduction. James Comey, who would later make plenty of headlines as head of the Federal Bureau of Investigation, was speaking to a collection of federal prosecutors shortly after his appointment as the U.S. attorney for the Southern District of Manhattan, the epicenter of Wall Street prosecutions. He asked his audience: “Who here has never had an acquittal or a hung jury? Please raise your hand.” A number of prosecutors, proud of their perfect records, thrust their hands into the air. “Me and my friends have a name for you guys,” Comey continued. “You are members of what we like to call the Chickenshit Club.” The point of embarrassing the hand-raisers was that acquittals and hung juries indicate the prosecutor is unafraid to try cases that aren’t clear-cut—or in the words of Eisinger as he summarizes Comey’s philosophy, “to be bold, to reach and to aspire to great cases, no matter their difficulty.”

A strong hand / I am particularly interested in this topic of prosecutions because early in my career I worked for the Federal Deposit Insurance Corporation and Resolution Trust Corporation as they cleaned up broke banks and savings and loans during the 1980s and 1990s. As part of that cleanup, there were thousands of convictions of individuals for major financial institution crimes—mostly directors and officers of institutions, as well as attorneys, accountants, and other professionals. All indications were that these were bad actors who abused their positions solely to enrich themselves.

Consistent with that view, Eisinger runs through an encapsulated history of what he calls the “Boom, Bust, and Crackdown” cycle. After the 1929 stock market crash, Congress created the Securities and Exchange Commission, a permanent platform for pursuing those committing financial malfeasance. After the stock market run-up of the 1960s, government cracked down on professionals involved in corporate fraud. After the banking and savings-and-loan failures and the junk-bond blow-up of the 1980s and 1990s, the Department of Justice prosecuted many top executives at failed institutions, and Michael Milken went to jail. Finally, after the tech bubble popped at the start of this century, top officers of Enron, WorldCom, and others also did time.

But something then changed, according to Eisinger:

By contrast, after the 2008 financial crisis, the government failed. In response to the worst calamity to hit capital markets and the global economy since the Great Depression, the government did not charge any top bankers.

Case studies / This book is quite a bit different than I had expected when I ordered it. I thought that it would have some historical background on the evolution of prosecutions from the takedown of Enron and WorldCom during the early 2000s to the hands-off approach of the late 2000s. I believed that Eisinger would commit most of the book to case studies of the most highly publicized financial institution failures during 2008 and 2009 and the relevant key executives, and try to make an argument for why and under what charges the DOJ should have pursued them.

However, an all-in case study approach is not the path he chose. A quick review of just a few examples from the book’s index bears this out. Angelo Mozilo of Countrywide, who settled with the SEC and avoided a civil trial and criminal prosecution, receives all of two pages of discussion. Dick Fuld, Ian Lowitt, and Erin Callan of Lehman Brothers, who collectively deployed some very questionable accounting practices, likewise receive two pages each. Eisinger does go through case studies of John Paulson, who put together the Abacus 2007 mortgage deal for Goldman Sachs, and Joseph Cassano, who headed up AIG’s Financial Products Group. But my expectation was that the bulk of the book would be these types of case studies, rather than just a few isolated instances.

The builders / Instead, Eisinger makes it through nearly half the book before he reaches 2009, when “the Obama people came in to the Department of Justice.” He spends that first part of the book tracing through the heyday of the development of enforcement and prosecutions, and then showing how the regime slowly unraveled during the 2000s. Stanley Sporkin spent two decades at the SEC from the early 1960s to the early 1980s, building the capacity of its enforcement division as its director. “By the end of his run at the SEC in 1981, Sporkin had become a hero regulator feared by Corporate America,” Eisinger writes. “He would come to be known as the ‘Father of Enforcement.’ ”

Eisinger then connects Sporkin to a kindred spirit:

To prosecute crimes, [Sporkin] needed allies at the Department of Justice. The Southern District had an effective monopoly on white-collar enforcement at the time. Main Justice and other offices around the country played little role. So Sporkin looked north and discovered friends in the Southern District of New York. He found one prosecutor particularly excited about his brand of justice, a brilliant, young, and aggressive lawyer eager to attack corporate and securities scofflaws: Jed Rakoff.

Rakoff spent much of his early career as a prosecutor in the Southern District of New York and was ultimately appointed to that district’s bench by President Bill Clinton. In an interesting twist of the weaving storyline, Rakoff would later become more widely known for criticizing a proposed settlement offered by the SEC in a case involving Citigroup in 2010, arguing, “The court has not been provided with any proven or admitted facts upon which to exercise even a modest degree of independent judgement.”

The last gasps of a tough DOJ enforcement regime can be traced to January 2003 and a memo by George W. Bush administration deputy attorney general Larry Thompson in the wake of the Arthur Andersen collapse. The memo set out a tough critique of how firms were complicit in protecting bad actors: “Companies … purport to cooperate while impeding exposure of the full account of a company’s wrongdoing.” Eisinger summarized Thompson’s philosophy: “Pervasive bad behavior, a lack of contrition, a phony compliance program—his Department of Justice would treat these transgressions sternly. Members of the white-collar bar howled in outrage.”

A different direction / One of the strands of the countervailing movement against prosecuting individuals was initiated by Mary Jo White during her tour of duty as U.S. attorney for the Southern District of New York. Deferred prosecution agreements (DPAs) allowed the DOJ to make relatively quick work of their investigations. These involve a nice quid pro quo for both sides: the DOJ extracts a large fine and the targeted institution avoids a long, expensive, and public fight. DPAs also have obvious downsides, as Eisinger explains:

Since these settlements lacked transparency, the public didn’t receive basic information about why the agreement had been reached, what the scale of the wrongdoing was, and which cases prosecutors never took up. How could the public know how tough they were, really?

Also helping along the movement away from prosecutions was the development of the revolving door of lawyers moving from the DOJ “farm team” to the big defense law firms, and sometimes back to the DOJ again. No firm better characterized this trend than Covington & Burling and its alum, Eric Holder.

After graduating from Columbia Law School, Holder began his career on the DOJ staff. After a stint as a judge, Clinton first appointed him as a U.S. attorney and then deputy attorney general. Holder then went to Covington & Burling during the George W. Bush administration, only to return to Justice as the attorney general during the Obama years.

Although progressives may have had high hopes that the Obama administration would seek “Old Testament vengeance” against executives in the financial industry, Eisinger makes it clear that this was unlikely to happen.

In its first year, the department was cautious and overwhelmed by political infighting. One former top official at Justice likened it to a soccer game with 6‑year-olds, where everyone clusters around the ball, and it never advances.

A Financial Fraud Enforcement Task Force, announced with great fanfare in late 2009, made little progress. After being called on the carpet for his lack of progress in 2013, Holder resorted to Chicken Little warnings, words that would be ridiculed as the “Too Big to Jail” problem: “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute—if you do bring a criminal charge—it will have a negative impact on the national economy, perhaps even the world economy.” Holder, who later recanted the comment, was the most high-profile of the spinners of the revolving door, but by no means the only one. He is now back at Covington.

If you are interested in the procedural changes and capture of Justice, you will find the Chickenshit Club a good read. But if, like me, you were hoping for a little less procedural history and a lot more case studies of whether the DOJ did indeed act cowardly, then you will be a little disappointed.