Reaction Of Senator Patrick Leahy (D-Vt.),
Ranking Member And Incoming Chairman, Senate Judiciary Committee,
To Revisions To The Thompson Memorandum
Tuesday, December 12, 2006

“I welcome Deputy Attorney General McNulty’s announcement of new guidelines for the prosecution of corporate crime.  This Administration has taken extraordinary steps to investigate and silence the press and its critics, while claiming unlimited privileges and secrecy for itself.  I am pleased that the Justice Department has heeded bipartisan criticism of its policy – including the criticism of former Republican Attorneys General, the Chamber of Commerce, the American Bar Association and the American Civil Liberties Union, as well as the Chairman and Ranking Member of the Senate Judiciary Committee – and moved away from its most excessive practices in corporate fraud investigations. 

“The protection of communications between client and lawyer has been fundamental to our nation’s legal justice system since its inception, and the right to counsel has long been recognized as essential to ensure fairness, justice and equality under the law for all Americans.  I am pleased that the Department responded to my requests to stop considering corporations’ payment of attorneys’ fees for employees when making charging decisions, and to implement safeguards to ensure that prosecutors do not pressure corporations to waive attorney-client privilege.  The new guidelines place limits on the ability of prosecutors to request waivers of this important privilege or to consider a corporation’s decision not to waive in deciding whether or not to charge the corporation, while allowing for appropriate prosecutorial discretion.  But, I remain concerned that, depending on how the new policies are implemented, prosecutors may still be able to inappropriately consider a corporation’s waiver of this important privilege.

“When rights are trampled – the rights of ordinary citizens, the rights of business people, the rights of any of us as Americans – it is important to speak out and to try to put it right.  Going forward, a key issue will be how the Department implements this new policy and the proof of the Department’s commitment to honoring the legal and constitutional rights of defendants will be in the pudding.  I will continue to monitor the implementation of this new policy and to hold the Administration accountable, so that the right to counsel is preserved for all Americans.”

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