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September 8, 2006

The golden rule in criticism of federal policies

The cynic's version of the golden rule says "he who has the gold makes the rules."  This reality came to mind as I read news accounts, such as this Legal Times piece and this New York Times piece, that a "bipartisan group of 11 former senior Justice Department officials has written Attorney General Alberto Gonzales to protest the government's tactics in investigating corporate wrongdoing."  The three-page letter to AG Gonzales sent earlier this week, which can be accessed here, is signed by three former AGs, four former SGs and three other top former DOJ officials.  Sadly, I do not recall many of these folks writing to complain about prosecutorial policies and tactics outside the corporate realm. 

The letter, which complains primarily about the so-called Thompson Memo that urges waiver of privilege and work-product protections in corporate investigations, ends with this line: "Thank you for considering our views on this subject, which is of such vital importance to our adversarial system of justice."   Though I won't dispute this claim of importance, I would suggest that folks genuinely concerned about "our adversarial system of justice" also should be speaking out against sentencing doctrines that allow enhancements based on acquitted conduct and based on, in Justice Scalia's words, "bureaucratically prepared, hearsay-riddled presentence reports."

Anyone interested in the Thompson Memo and corporate concerns should check out this press release from the Association of Corporate Counsel, which includes links to lots of materials.  Especially intriguing is this written testimony, submitted to the Senate Judiciary Committee for its Sept. 12, 2006 hearing on these matters, from a group calling itself the Coalition to Preserve the Attorney-Client Privilege.

September 8, 2006 at 07:09 AM | Permalink


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Prof Berman,

As you may have guessed, I am quite cynical about the way our constitution and system of justice often looks like intellectual sugar-coating for our class system. In fact, I have gotten hate-mail accusing my blog of being communist.

That said, I think that the fallout from the Thompson memo has the potential to actually help effectuate the socialist theories some claim drive the 6th amendment: that everyone gets counsel, regardless of what side of the tracks they grew up on, and what train they road in on. Supposedly, counsel is judged according to objective standards.

The KPMG opinion, if eventually upheld puts teeth into the “government interference” portion of Strickland. Because it was done prospectively, it didn’t get clouded with any prejudice analysis. If the theory behind KPMG is followed though not only executive behavior, but also legislative behavior that interferes with the right to counsel on the same basis as others, can be condemned and prospectively remedied.

Posted by: S.cotus | Sep 8, 2006 9:30:05 AM

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