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When former federal prosecutor Sam Buell received an unexpected phone call asking if he wanted to join the Enron Task Force, he had zero background in accounting or corporate finance. “I just got the Enron case. Do you want to come work with me?” asked his former supervisor Leslie Caldwell. Just like that, Buell found himself thrust into what would become one of the most significant corporate fraud cases in American history.

In a fascinating episode of “Oh My Fraud” podcast, Caleb Newquist and Greg Kyte interview Buell about his remarkable journey from prosecuting mob bosses to untangling Enron’s complex accounting schemes. Now the Bernard M. Fishman Distinguished Professor of Law at Duke University, Buell offers rare insider perspective on how major fraud cases are built and why corporate criminals are so difficult to prosecute.

From Organized Crime to Corporate Fraud

Before tackling Enron’s financial mysteries, Buell cut his teeth on cases straight out of a crime drama. After graduating from NYU Law School, he clerked for a federal judge in Brooklyn’s Eastern District of New York during the early 1990s.

“That courthouse was the most interesting place I had ever been in my life,” Buell explains. “At that time, in the early 90s, there was more crime than anybody knew what to do with. The murder rate in New York City was around 2,000 murders a year at its peak.”

The district was a hotbed of criminal organizations – not just the Italian Mafia, but diverse groups organized around various ethnic communities. These enterprises ran everything from drug trafficking to extortion, illegal gambling, and even human smuggling operations.

“These guys aren’t doing fraud,” Buell notes. “What they’re doing is real… it’s black markets. The question is simply what’s getting detected and caught and what isn’t. It’s a pure cat and mouse game.”

After moving to Boston, Buell joined the infamous Whitey Bulger investigation. Though Bulger himself was a fugitive, his lieutenant, Kevin Weeks eventually cooperated with authorities.

“Weeks took us to some locations where we recovered a total of five bodies,” Buell recounts. “The bodies were exactly where he said they were going to be. After 20 years, vegetation changes, everything changes. But I don’t think you forget that.”

Working on these cases taught Buell to “follow the money” – a skill that would prove invaluable when he later tackled corporate crime.

The Call That Changed Everything

In late 2001, while still working on the Bulger case, Buell received the call that would redirect his career. Leslie Caldwell, his former supervisor from New York who was now heading the Enron Task Force, invited him to join the investigation of America’s most spectacular corporate collapse.

Despite having a young child and a new house, Buell’s wife encouraged him to take the opportunity. “This is the one shot to do something,” she told him.

The learning curve was steep. “I needed a high-speed education,” Buell admits. “I didn’t even know what LIBOR was. People would say ‘LIBOR plus basis points,’ and I’d be like, ‘what is LIBOR?'”

Fortunately, prosecutors worked closely with SEC experts who could explain the complex accounting issues. “You’re talking to a lot of people who are experts, including lots of the witnesses who were CPAs. You’re like, ‘explain it to me like I’m your mother.'”

Despite the technical complexity, Buell found the fundamental challenge familiar: follow the money and identify the deception. “The people you’re dealing with speak a different language, but that doesn’t mean they’re smarter than you or capable of understanding things you’re not capable of understanding.”

The Slippery Slope of Corporate Fraud

Unlike TV crime dramas where villains set out to commit fraud from day one, Buell explains that most corporate fraud cases follow a pattern of gradual escalation.

“Once you tell the first lie, once you mess with the first number, it’s like… you read about what happened in Worldcom,” he says. What eventually became a billion-dollar accounting scandal often begins with small manipulations that executives might consider minor stretches of the rules.

Buell calls this “the creep effect” – a series of increasingly problematic decisions driven by pressure to maintain appearances and stock prices.

“These companies are being lauded as great success stories. And no CEO wants to say, ‘actually, we’re not succeeding,'” Buell explains. This reluctance creates enormous pressure, especially when executive compensation is tied directly to stock performance.

At Enron, “the tail was wagging the dog,” as Buell puts it. “Everything was designed not to have the stock price be a reflection of fundamental value, but a reflection of excitement about all the things they were going to do.”

Personal financial entanglements made this pressure even more intense. Many executives had borrowed against their company stock to finance lavish lifestyles.

“Ken Lay at Enron was being told to buy things like yachts and horses and cars and real estate—not very liquid stuff,” Buell explains. “So when the stock price starts coming down, there’s margin calls coming from the personal bankers, and they can’t be satisfied with selling other assets because you’ve put all your money into illiquid things.”

This creates a powerful motivation to keep the stock price up at all costs.

The Arthur Andersen Controversy

One of the most controversial aspects of the Enron case was the prosecution of Arthur Andersen, Enron’s accounting firm, for obstruction of justice. When Andersen employees shredded Enron-related documents as the SEC investigation began, prosecutors saw a clear case of obstruction.

“To have a big five accounting firm that was already in trouble with the SEC…suddenly have the relationship partner and somebody in the in-house counsel’s office telling all the junior people in Houston to shred everything other than the official working papers…because the SEC is looking at Enron – this was shocking,” Buell explains.

The Justice Department offered Andersen a settlement, but the firm refused to admit wrongdoing, fearing this would destroy them in civil litigation. When prosecutors proceeded with an indictment, Andersen launched a massive PR campaign with “full page ads in the Wall Street Journal about how the Justice Department is trying to put 10,000 people out of work.”

Though a jury convicted Andersen, the Supreme Court later overturned the conviction on a technical point regarding jury instructions. By then, however, Andersen had already collapsed.

The case had lasting repercussions for corporate prosecutions. “It explains a lot about why the settlement market in corporate criminal prosecutions has boomed over the last 20 years,” Buell notes. Defense attorneys now routinely argue, “You don’t want to have another Arthur Andersen,” to secure deferred prosecution agreements for corporate clients.

“Boeing got a deferred prosecution agreement and hundreds of people died,” Buell points out. “General Motors got a deferred prosecution agreement. The argument was being made, ‘Hey, you can’t slam GM. You know, you want to win Michigan.'”

Proving Criminal Intent in Corporate Settings

The central challenge in prosecuting corporate fraud isn’t just finding misleading statements – it’s establishing criminal intent in environments where some level of deception is normalized.

“When we say someone has the intent to defraud, what we really mean is that they have the intent to engage in a kind of deceit that is wrongful in the context. And they know it,” explains Buell.

He illustrates this through a comparison: “Think about the difference between poker and golf. In poker, it’s part of the game that everyone is trying to deceive each other… In golf, you’re supposed to apply the rules very strictly to yourself.”

This distinction extends to financial markets, where different sectors have different norms about acceptable negotiation versus fraudulent misrepresentation.

Applying this framework to Enron reveals why the case was so complex. “It wasn’t like there was no there there,” Buell explains. Unlike a pure Ponzi scheme, Enron had legitimate business operations. “The criminal case was a collection of pieces of the business and incidents over time where they stepped over the lines and told lies. That doesn’t mean that the whole company was a fraud.”

Buell describes Enron as “a Rube Goldberg device…cantilevered off of itself constantly.” This complexity made it challenging not only to identify fraud but also to explain it to juries.

Why Corporate Fraud Persists

Despite landmark prosecutions and regulatory reforms like Sarbanes-Oxley, corporate fraud continues to plague our financial system. When asked what continues to surprise him, Buell answers simply: “That the scandals never stop.”

He points to ineffective regulation as a key factor. “Every single one of these cases almost…you can see directly the story of taking advantage of ineffective regulators.” From Boeing’s relationship with the FAA to Volkswagen’s emissions cheating, companies exploit weak oversight.

Sarbanes-Oxley, passed after Enron, had limited impact on criminal enforcement. More troublingly, it “never took up the question of what kind of products are being traded, by whom, and what is the danger of that…the shadow banking problem.”

Buell sees Enron as “a canary in the coal mine” that foreshadowed the 2008 financial crisis. “Enron, even though it was an energy company, was basically trying to run itself like an investment bank, trading products that were not regulated by the banking system in ways that ended up being much riskier than people realized.”

Most disappointing is how little we seem to learn from these cases. “Every time one of these things blows up, there’s all this talk about lessons learned. But the lessons don’t actually seem to get learned.”

For a fascinating first-hand account of how major corporate fraud cases are built from the prosecutor’s perspective, listen to the full conversation with Sam Buell on the Oh My Fraud podcast. His experiences provide essential context for understanding why corporate fraud remains so persistent despite our best efforts to prevent it. 

You can also earn free CPE for listening with Earmark.