T he Heritage Foundation and the American Civil Liberties Union are not accustomed to being allies. Neither are former Reagan Attorney General Ed Meese and former Clinton Deputy Attorney General Jamie Gorelick. But they and an equally wide-ranging assortment of conservative and liberal lawyers and organizations have joined forces to overturn a Justice Department policy that commonly goes by the innocuous title of “the McNulty Memo.”
Congress may be well poised to give this coalition a boost by explicitly overturning the McNulty Memo policy as a matter of statutory law — especially if liberal Vermont Sen. Patrick Leahy gets on board the effort next week.
As well he should. Whatever else conservative critics say about Leahy, he always has been respected for his efforts to balance the needs of prosecutors with a just concern for civil liberties. And that’s exactly what this unusual coalition aims to do by tearing the ill-advised McNulty Memo into pieces.
What the McNulty Memo (and several predecessors going back about a decade) did was outline circumstances in which federal prosecutors can ask (or pressure) defendants, especially corporate defendants, to give up (“waive”) their usual attorney-client privilege. (The privilege, of course, allows citizens to discuss their case freely with their lawyers without those discussions being used against them during trial.) In practice, say the coalition members, prosecutors too often reward defendants for waiving this age-old privilege and punish them if they don’t. That, of course, makes the privilege effectively worthless.
The solution, say the coalition members, is to prohibit prosecutors from even asking for the privilege to be waived. (Utterly voluntary waivers would still, of course, be allowed.)
What’s worst about all this is not that faceless corporate entities somehow lose legal protections that some prosecutors might say the corporations abuse, but that ordinary workers often are the ones unfairly caught in the cross hairs. The 2006 case of United States v. Stein, in which federal District Judge Lewis Kaplan of New York officially found prosecutorial misconduct, is a perfect example.
The case was brought against the accounting firm KPMG for alleged violations with regard to tax shelters. As described by Brian Walsh of the Heritage Foundation, “KPMG had quickly concluded that a federal criminal indictment probably would destroy the firm — before a trial even started or a guilty verdict was returned — much as federal indictment alone had destroyed its powerful former competitor Arthur Andersen.”
On appeal, of course, the conviction of Arthur Anderson had been thrown out, but only after the firm had ceased to exist and its thousands of employees laid off.
Anyway, in order to avoid indictment of the business as a whole, KPMG was forced by prosecutors to pressure its individual employees to waive several constitutional rights essential to their own defense.
In short, the ordinary employees were hung out to dry, faced with huge legal fees but without the full array of rights to adequate defense.
“The government may not both prosecute a defendant and then seek to influence the manner in which he or she defends the case,” wrote Judge Kaplan. Plus, he wrote, “The government here acted with the purpose of minimizing these defendants’ access to resources necessary to mount their defenses.” Not only that, but it did so in a way that “threaten[ed] the jobsand security of blameless employees.”
To remedy that, Pennsylvania’s Sen. Arlen Specter has been pushing a bill to completely protect attorney-client privilege. The bill has a large and bipartisan list of co-sponsors and already passed the House by overwhelming voice vote. It appears easily to enjoy enough support to pass the Senate, too, but Leahy first must find room on the busy calendar of the Judiciary Committee he chairs for the bill to be considered and voted on.
Again, as the bill’s language (and its bipartisan provenance) makes clear, the agenda is not to be a sop to corporate scofflaws, but rather to “preserve the constitutional rights and other legal protections available to employees.” The truth is that not all employee mistakes rise to the level of illegality, but that only with adequate counsel may the workers make their case for which is which. For the sake of employees caught in a vise not of their own making, Leahy would greatly burnish his record of accomplishment if he would push Specter’s bill to passage.
