The Sixth Amendment of the U.S. Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.” Fundamental to ensuring the constitutional right to an attorney is the attorney-client privilege. For almost a decade now, the Department of Justice under both Presidents Clinton and Bush, has been steadily undermining this fundamental protection against unjust criminal punishment.
Despite recent efforts by the DOJ to reverse course, a broad bipartisan coalition has formed to support legislation that will restore the privilege. The coalition includes the American Civil Liberties Union, National Association of Criminal Defense Attorneys, and Clinton DOJ officials Walter Dellinger and Seth Waxman as well as conservative legal legends Ed Meese, Dick Thornburgh, Ken Starr and Ted Olson.
The problem began in 1999 when the DOJ issued a memo outlining nine factors for determining if an entire company should be indicted for the wrongdoing of one or more employees. One of the nine factors was “cooperation,” which included whether or not a company waived all attorney-client privilege protections. DOJ issued another memo in 2004 requiring prosecutors to take into account all nine factors when considering indictment.
Together these two internal DOJ memos created a brave new world of law enforcement, where prosecutors routinely demanded that any company waive all attorney-client privileges for its employees or face indictment. Since indictment is a death threat for most companies, especially publicly traded ones, complying with DOJ requests for privileged material cannot be considered voluntary in any way.
In 2006 a federal judge ruled that prosecutors applying the DOJ policies had violated the Fifth and Sixth Amendment rights of two employees. DOJ has since modified its internal procedures, but since 1999 it has now changed its stated policy nine times. Norman Veasey, former chief justice of Delaware, issued a report to the Senate Judiciary Committee documenting that no matter what DOJ’s stated internal policy is, prosecutors in the field continue to demand privileged materials under the treat of indictment.
Worse, any current DOJ policy could be overturned by a future administration with the stroke of a pen, and other federal agencies such as the Securities and Exchange Commission and Internal Revenue Service have also begun to adopt DOJ’s bad habits. Only legislation making it crystal clear that prosecutors cannot request privileged material can protect Americans’ right to counsel.
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