On June 19, 2020 U.S. Attorney General William Barr announced that the U.S. Attorney for the Southern District of New York had resigned and that Clayton would be nominated by President Trump to replace him. The nomination met with immediate resistance from New York Senator Chuck Schumer, whose support as one of the senators from New York is needed under traditional procedures that require support from both senators of the state where the nominee will act as U.S. Attorney. Schumer reportedly was concerned about potential interference by the Trump administration in investigations being conducted by Geoffrey Berman, the then current U.S. Attorney. In an email message to SEC staff the next day, Clayton said that he would not leave his post at the SEC until his nomination to the U.S. Attorney position was approved by the Senate.
After President Donald Trump's 2020 election defeat, Clayton announced on November 16 that he would leave the agency before the end of the year. The New York Times noted that Clayton had focused on issues affecting individual investors during his time at the SEC. In a separate 28-page announcement published the same day, the SEC highlighted a number of the agency's achievements since Clayton became chairman.
Before joining the SEC, Clayton was a partner in the New York office of the law firm Sullivan & Cromwell, where he specialized in advising clients on public and private mergers and acquisitions and capital-raising. He also helped companies navigate regulatory and enforcement actions, including a number of cases that involved mortgage securities.
Clayton has worked for high-profile clients, including the initial public offerings of Alibaba Group Holding Company and Oaktree Capital Group. During the 2008 financial crisis, Clayton worked on major deals involving big banks, including Barclays Capital’s acquisition of Lehman Brothers’ assets, the sale of Bear Stearns to JP Morgan Chase, and the U.S. Treasury Department’s capital investment in Goldman Sachs.
He has helped draft comment letters to the SEC advocating for less onerous restrictions for foreign public companies, and was one of the authors of a 2011 article which advocated for less zealous enforcement of the Foreign Corrupt Practices Act.
Speaking at a CoinDesk-sponsored Consensus conference in November 2018, Clayton said that when tokens are issued in order to finance a venture and the tokens are bought by persons hoping to profit from the token price appreciation, those are obviously securities. He also said that the status of some tokens may not be clear cut and with regard to XRP, the token issued by Ripple, Clayton acknowledged that "some of these questions require a lot of information." With regard to the potential for an SEC-approved cryptocurrency ETF, Clayton raised concerns about the potential for manipulation of trading the underlying coins on unregulated platforms.
In an intensely anticipated response to a formal request from U.S. Congressman Ted Budd regarding cryptocurrencies, which can be found here, Clayton wrote to the Congressman - in a letter that can be found here, that he believed that a token could transition to being a non-security after having been issued as a security. The letter affirmed SEC Director of the Corporation Finance Division William Hinman's 2018 statement that a currency could transition although, unlike Hinman, Clayton made no reference to Ethereum or any other cryptocurrency. CoinCenter, a Washington, D.C.-based cryptocurrency advocacy group, claimed that it had worked with Budd to draft the letter.
Later, Clayton told Fox Business News that he is not opposed to cryptocurrencies but is concerned about the potential for its manipulation to the disadvantage of investors. Clayton also said in the interview, "“What I’m concerned about at the moment is if it can be reasonably demonstrated that the underlying trading is generally not manipulated, it’s happening on reliable venues with good rules and that custody is something we can feel comfortable about."
Clayton has a B.S. in engineering from the University of Pennsylvania, a B.A. and M.A. in economics from the University of Cambridge and a J.D. from the University of Pennsylvania Law School.
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