I have written several times on prosecutorial abuse, most recently in this post on the Justice Department's current practice of forcing companies to waive attorney-client privilege and punishing companies that help their employees seek legal council.
The WSJ($) editorializes about a recent division by Judge Lewis Kaplan in the KPMG trial.
Those steps were extraordinary in their attempt to
pressure corporate executives: They include waiving attorney-client
privilege to give investigators access to internal documents and
cutting off accused employees from legal and other forms of support. In
short, the Thompson memo said that companies under investigation are
expected to surrender any right against self-incrimination and cut
their accused employees adrift.
In one sense, the memo's guidelines are just that --
internal guidelines for prosecutors. But as a practical matter, only a
rare CEO will risk the death sentence that a corporate indictment
represents. So "cooperation" as defined by Justice is hardly optional.
It was on this point that Judge Kaplan took Assistant U.S. Attorney
Justin Weddle to task last week. When Judge Kaplan questioned the
fairness of pressuring companies to throw their employees overboard,
Mr. Weddle replied that companies are "free to say, 'We're not going to
"That's lame," the judge retorted. He then asked Mr.
Weddle "what legitimate purpose" was served by insisting that companies
cut their former employees off from legal support. Companies under
investigation, Judge Kaplan noted, ought to be free to decide whether
to support their employees or former employees without Justice's "thumb
on the scale."
Mr. Weddle replied that paying the legal fees of
former employees charged with crimes amounted to protecting
"wrongdoers." This prompted the judge to remind the young prosecutor
that the accused are still innocent until proven guilty. He also
reminded Mr. Weddle that the Constitution's Sixth Amendment guarantees
the right to counsel. And for good measure, if the government is
confident in its case, it shouldn't be afraid to allow "wrongdoers"
access to an adequate defense.
Its good to see these practices starting to get some judicial scrutiny. There is unfortunately no real political constituency in this country to get worked up about this kind of stuff. Left-leaning groups tend to be the first to challenge police and prosecutorial abuses of power, but have little interest in doing so when the target (ie corporations) is someone they have no ideological sympathy for. And right-leaning groups tend to be strong law-and-order types that feel the need to go out of their way to be tough on recent corporate transgressors to avoid the accusation that they are in bed politically with white collar criminals.