Thursday, June 26, 2008

Leahy Reveals Discussions With DOJ Over McNulty Memo

At this morning's Senate Judiciary Committee markup, Chairman Patrick Leahy, D-Vt., said he has met with Deputy Attorney General Mark Filip (pictured) to address concerns about the Justice Department's policy of seeking attorney-client privilege waivers in corporate investigations.
Sen. Arlen Specter, R-Pa., has legislation pending that would ban the practice, but Leahy has so far been reluctant to proceed with the bill on the grounds that he would rather negotiate with the Justice Department.
The House has already passed its version of the legislation.
The current DOJ policy is enshrined in the so-called McNulty Memo, named after former Deputy Attorney General Paul McNulty.
The question now is: will there be a Filip Memo?
Here's what Leahy had to say this morning:

"Just as I have consulted extensively with Senator Specter about nominations, I want to work with him regarding his recent request that we consider a bill controlling how Federal prosecutors should act and superseding Department of Justice guidelines with a statute for assertions of corporate attorney-client privilege and possible abuses of that privilege.

"I recently met with the new Deputy Attorney General Mark Filip. He says that he has reviewed the past policy and is working on improvements. I believe that he has also met recently with the Senator from Pennsylvania. If there are not further developments when we return after the July 4 recess, the Committee may well have to turn its attention to legislative options."


Laser said...

The premise of a blanket law to protect a purported violation for being a "questionable" practice is incongruous.

Government is to be an open book and an open issue. Corporations are the next thing to government. Both the Government and Corporations, when having been put under the scrutiny due to nefarious issues should never be able to "hide" any issue under the guise of a "privilege".

This is an effort to make all investigations into corporate items verboten as a "per se" rule, stepping off the realm of reason, into the realm of the arcane.

While the DOJ's recent decisions are most certainly questionable, as the eToys saga would demonstrate conclusively. It is a personnel mindset issue, not a statutory or right, that is in question.

The DOJ is accussed of using "pressure[s]" to get Corporations to waive the attorney client privilege. They are not violating the privilege, rather, they are stating, you have done wrong, you known you have done wrong, if you wish to settle the issue and get on with your business, document to us there is no further malfeasance by giving us your communications and we will settle the issue with you.

The client in corporation dealings is the Corp entity. To invoke a new law forbidding the DOJ for seeking disclosure under the pretense of ACP is the tail wagging the dog and shall result in the chaos of the dog in a circle.

The Court's can easily settle and be punitive, if and when the DOJ went or goes too far.

The proverbial slope is already here and this effort to go brite line against is tilting the slope into a very dangerous wall of protection for wayward activitist.

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