Kaplan’s rulings sparked congressional hearings which in turn led the then-chairman of the Senate Judiciary Committee, Arlen Specter, to introduce the Senate version of the Attorney-Client Privilege Protection Act.
Five days later, Justice changed its policies again. Touted as a major reform, the Department’s third memorandum essentially formalized the process for “requesting” that a company waive its privileges. The Department makes much of the fact that prosecutors have entered few formal requests. But the new memo did nothing to eliminate existing policies’ inherently coercive effects, effects clearly identified by Judge Kaplan. Many practitioners — including former DOJ officials — report virtually no change to prosecutorial expectations. Companies still regularly conclude that they must divulge confidential attorney-client communications to avoid being deemed “uncooperative” and facing the potentially disastrous business effects of indictment alone.
The department’s policies have emboldened other federal agencies — and even over-zealous state prosecutors — to engage in similar coercive tactics. Since the Justice Department’s 2003 memo, the SEC, EPA, U.S. Sentencing Commission, and others have promoted policies and practices eroding the privilege, thereby fostering a culture of waiver. Eliot Spitzer, when he was still New York’s attorney general, used federal practices to defend his own staff’s right to demand waivers. If DOJ could expect or even demand waivers, Spitzer told the Association of Corporate Counsel’s board of directors in early 2005, he could see no reason why his own staff shouldn’t do the same.
Unfortunately for everyone, the dangers inherent in this situation have implications far beyond Fortune 500 criminal cases. Precedent shapes every aspect of our criminal-justice system: Dismantling privilege protections for one class of suspects inevitably undermines its protections for all Americans.
Concern for these protections has led the U.S. Chamber of Commerce, the Association of Corporate Counsel, and other similar outfits to join with the ACLU and the NACDL in actively supporting the Attorney-Client Privilege Protection Act. Also on board: the American Bar Association, which for years has decried these federal policies and the damage they are doing.
The reform bill also has the full support of nine high-ranking Justice Department officials from previous Republican and Democratic administrations. Clinton appointees Jamie Gorelick, Walter Dellinger, and Seth Waxman are on a letter endorsing the bill. But their support shouldn’t cause conservatives to eye it with any suspicion. The co-signers also include conservative stalwarts Ed Meese, Dick Thornburgh, Ken Starr, and Ted Olson.
This support is remarkable. When was the last time nine former U.S. attorneys general, deputy attorneys general, and solicitors general asked Congress to rein in Justice Department practices for investigating and prosecuting crime?
Fortunately, some federal agencies have begun to reconsider. In May 2006, the U.S. Sentencing Commission rescinded sentencing guidance it had earlier enacted encouraging waivers. During a speech this January, SEC Commissioner Paul Atkins spoke against Commission policies promoting waiver. “Rewarding companies for co-operating by waiving privilege,” Atkins said, “may sound nice, but its effect is the same as punishing them for not waiving privilege — both effectively strip the attorney-client privilege.”
Against this backdrop, it should surprise no one that the reform bill has garnered wide, bipartisan support in both chambers of Congress. Indeed, the House version passed on a unanimous voice vote in November. It was sponsored by the chairmen and ranking members of the House Judiciary Committee and of the House Crime Subcommittee. The effort in the Senate is being led by Judiciary Committee Ranking Member Arlen Specter (R., Pa.) as well as Crime Subcommittee Chairman Joe Biden (D., Del.) and Ranking Member Lindsey Graham (R., S.C.).
The only meaningful opposition to the bill has come from Justice itself. Affording privileged communications the same respect they have always received would, according to Justice, make their work investigating crime more difficult. But making things easy for law enforcement has never been, and never should be, the justice system’s predominant goal. As Attorney General Michael Mukasey said during his confirmation hearings last fall, “Absent privilege, the right to counsel is nearly meaningless.”
Former Enron Task Force Director Andrew Weissmann has given similar testimony before Congress. His comments today will come as part of a major conference on the health and competitiveness of America’s capital markets. This is particularly apt: When law enforcement uses heavy handed, no-holds-barred tactics to secure high-profile corporate convictions, American markets are weakened not strengthened.
The Attorney-Client Privilege Protection Act won’t come close to solving all the problems afflicting federal criminal law and law enforcement. But it would cure one glaring defect, and that’s an excellent start. The Senate should move to fix this serious problem quickly and make the most of the prevailing spirit of comity and bipartisanship. What’s at stake is worth the effort.
– Brian W. Walsh is senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation.