Kenneth L. Wainstein
  1. Partner

Mr. Wainstein is a partner in Davis Polk’s Litigation Department, practicing in the Washington DC office. His practice focuses on corporate internal investigations and civil and criminal enforcement proceedings. With experience in significant positions in the U.S. government in the areas of criminal enforcement and national security, he brings clients a deep understanding of the substantive and procedural issues involved in white collar defense. His 20 years of public service garnered him an intimate knowledge of federal enforcement practice and policy, crisis management skills, credibility among prosecutors and regulators, and strong relationships with Congress, the bench and bar, and U.S. Attorneys around the country.

In 2008, Ken was named Homeland Security Advisor by President George W. Bush. In this capacity, he coordinated the nation's counterterrorism, homeland security, infrastructure protection, and disaster response and recovery efforts. He advised the President, convened and chaired meetings of the Cabinet Officers on the Homeland Security Council, and oversaw the inter-agency coordination process for homeland security and counterterrorism programs.

Prior to his White House service, Ken was twice nominated and confirmed for leadership positions in the Justice Department. In 2006, the U.S. Senate confirmed Ken as the first Assistant Attorney General for National Security. In that position, Ken established and led the new National Security Division, which consolidated DOJ's law enforcement and intelligence activities on counterterrorism and counterintelligence matters, and also oversaw the Department's role in regulatory mechanisms such as the Committee on Foreign Investment in the U.S. (CFIUS). Ken led several national security initiatives, including the launch of the national, inter-agency Export Control Enforcement Initiative targeting illegal exports of sensitive technology and weapons components.

In 2004, he was appointed, and later confirmed as, the U.S. Attorney in Washington DC, where he managed the largest U.S. Attorney's Office in the country and oversaw a number of high-profile white-collar and public corruption cases. Prior to that, Ken served as General Counsel of the Federal Bureau of Investigation and then as Chief of Staff to Director Robert Mueller. At the FBI, Ken was involved in myriad sensitive national security and criminal enforcement matters, as well as a variety of civil litigation, managerial, and Congressional oversight issues. In 2001, Ken served a stint as Acting U.S. Attorney in Washington DC and was then appointed Director of the Executive Office for U.S. Attorneys, where he provided oversight and support to the 94 U.S. Attorneys' Offices.

From 1989 to 2001, Ken served as an Assistant U.S. Attorney in both the Southern District of New York and the District of Columbia, where he handled numerous criminal trials and appellate arguments.

Work Highlights

Mr. Wainstein’s representative matters have included:

Independent/Internal Investigations
  • Conducted the independent investigation into allegations of academic irregularities at the University of North Carolina at Chapel Hill
  • Conducted the investigation into allegations of improper conduct by investigators in the National Collegiate Athletic Association's (NCAA) Enforcement Staff and a broader review and assessment of the policies and procedures of the NCAA's enforcement operations.
  • Conducted an internal investigation of alleged violations of the Anti-Kickback Statute by employees of a health insurance company.
  • Conducted an independent investigation for a parochial secondary school into allegations of sexual abuse of students by a former teacher.
  • Oversaw an internal investigation for a major bank into allegations that its accounts were used for money-laundering and corruption.
Compliance Reviews/Investigations
  • Oversaw comprehensive Foreign Corrupt Practices Act (FCPA) compliance review for an international real estate company.
  • Oversaw internal investigations for two corporations regarding their compliance with municipal, state, and federal laws and regulations governing campaign finance restrictions, lobbying registration requirements, and pay-to-play limitations.
  • Oversaw compliance reviews of two major mortgage processing companies.
Corporate Representations
  • Represented a major bank in a Justice Department investigation into alleged antitrust and fraud violations in its foreign exchange operations.*
  • Represented a financial institution in a FINRA investigation involving alleged violations concerning the client's prime brokerage operation.
  • Representing a defense contractor in a federal export control and FCPA investigation.
  • Representing a major bank in a Justice Department investigation into alleged securities violations in an initial public offering.*
  • Advised a corporation regarding its response to a major cyber intrusion.
  • Represented a bank in a Justice Department investigation into allegations of energy trading manipulation.
  • Represented a government contractor in a Justice Department antitrust bid-rigging investigation.
  • Represented a bank in litigation over its role in the securitization of mortgages.
  • Represented a gaming manufacturer before the SEC and OSHA regarding allegations of accounting irregularities and whistleblower retaliation.
Individual Representations
  • Represented the CEO of a manufacturing company in an honest services fraud prosecution by the Antitrust Division of the Justice Department.
  • Represented a senior executive of a pharmaceutical company in a Justice Department investigation into alleged sanctions violations.
  • Represented a professional basketball player charged with firearms offenses.
  • Representing a senior pharmaceutical company executive in an FCPA investigation.*
  • Represented a dealer in law enforcement equipment who was indicted for FCPA violations.
  • Represented an insurance executive in an SEC investigation into insider trading.
  • Representing the CEO of a government contractor in a civil and criminal False Claims Act investigation involving small business contracting.*
  • Representing the CEO of a multinational corporation in a federal investigation into alleged fraud in the marketing of its pharmaceutical products.*
  • Represented an Assistant U.S. Attorney in connection with the special prosecutor's investigation of potential contempt charges arising out of the Justice Department's prosecution of Senator Ted Stevens.
  • Represented a family member of a political candidate in a Justice Department investigation into alleged violations of federal campaign finance laws.
  • Represented a Swiss bank official charged with conspiring to help U.S. taxpayers hide their assets from the I.R.S.
  • Represented a foreign bank executive in a Justice Department investigation into alleged sanctions violations.
  • Represented a car manufacturer executive in a criminal investigation of the company’s handling of a manufacturing defect that led to car crashes.
  • Pool counsel for executives of a car company in a corruption investigation by U.S. and foreign authorities.
  • Represented a corporate CFO in a Federal Election Commission investigation into alleged campaign finance violations.
Congressional Matters
  • Represented a hedge fund owner and board member of a pharmaceutical company in a Congressional investigation and hearing about that company’s drug pricing practices.
  • Represented the former Director of National Intelligence and the former Director and Deputy Director of the Central Intelligence Agency in Congressional investigations and hearings into Russian interference in the 2016 presidential election.*
  • Represented the former Acting Director of the Central Intelligence Agency and the former Director of the National Counterterrorism Center in a Congressional investigation into the 2012 Benghazi terrorist attacks.*
  • Represented a U.S. Congressman and his wife in two ethics proceedings.
  • Represented the co-head of Commodities of a major financial institution in a Congressional investigation and hearing into the role of financial institutions in the commodities markets.
  • Represented a District of Columbia city official in a Congressional investigation into allegations of misconduct during the mayoral election.
  • Represented and testified on behalf of a client in the Congressional investigation into the Ted Stevens prosecution.
  • Testified at approximately 25-30 hearings over the course of government and private practice career.

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* Selected representations after joining Davis Polk.

Recognition

  • Washingtonian – “Top Lawyers,” Criminal Defense, White Collar, 2017
  • Edmund J. Randolph Award for Outstanding Service to the Department of Justice
  • Department of Justice Director's Award for Superior Performance
  • Lawyer of the Year Award, Bar Association of the District of Columbia
  • Chambers USA  –  District of Columbia: White Collar Crime & Government Investigations
  • Benchmark Litigation – “Star”: Washington DC

Of Note

  • Chair, New York State Counterterrorism Advisory Panel convened by Governor Andrew Cuomo in December 2017
  • Panel Member, Blue Ribbon Study Panel on Biodefense
  • Member, Director’s Advisory Board of the National Counterterrorism Center
  • Member, Public Interest Declassification Board
  • Member, CIA General Counsel's External Advisory Board
  • Chairman, Legal Panel of the National Security Agency Advisory Board
  • Member, Webster Commission on the FBI, Counterterrorism Intelligence, and the Fort Hood Shootings
  • Co-Chair, Committee on National Security Law, Policy & Practice, District of Columbia Bar Association
  • Member, Council on Foreign Relations
  • Member, Board of Directors, Center for Cyber and Homeland Security, George Washington University
  • Member, Security Advisory Board, Alclear, LLC (d.b.a. CLEAR)
  • Member, Board of Directors, Burke & Herbert Bank, Alexandria, Virginia

Professional History

  • Partner, Davis Polk since 2017
  • Adjunct Professor, Georgetown University Law Center, 2009-present
  • Partner, Cadwalader, Wickersham & Taft, 2012-2017
  • Partner, O’Melveny & Myers, 2009-2012
  • Homeland Security Advisor (appointment by President George W. Bush), 2008-2009
  • Assistant Attorney General for National Security, 2006-2008
  • U.S. Attorney, District of Columbia, 2004-2006
  • Chief of Staff, Federal Bureau of Investigation, 2003-2004
  • General Counsel, Federal Bureau of Investigation, 2002-2003
  • Director, Executive Office for U.S. Attorneys, 2001-2002
  • Acting U.S. Attorney, District of Columbia, 2001
  • Assistant U.S. Attorney, Southern District of New York and District of Columbia, 1989-2001
  • Law Clerk, Hon. Thomas Penfield Jackson, U.S. District Court, District of Columbia, 1988-1989

Bar Admissions

  • District of Columbia

Education

  • B.A., University of Virginia, 1984
    • Phi Beta Kappa
    • with high distinction
  • J.D., UC Berkeley School of Law, 1988
    • Note and Comment Editor, California Law Review