[Guest post by DRJ]
For years, liberals argued the Bush Administration used national security as an excuse to intentionally and slowly erode American civil liberties. They were especially concerned about the Yoo Memorandum as well as innocent victims caught up in a national effort to combat terrorism, but there weren’t many willing to concede the Bush policies were based on valid concerns and good motives.
Last month, Barack Obama announced the appointment of former Clinton Deputy AG Eric Holder to serve as his Attorney General. Harvey Silverglate, a Boston-based criminal defense and civil liberties lawyer, notes that Holder authored the Holder Memorandum in 1999 while serving in the Clinton Administration, a Memorandum that arguably resulted in significant erosion of the civil liberties of many Americans. Specifically, it pitted American companies against employees to effectively limit the employees’ right to counsel:
“In his controversial directive to line prosecutors, Holder strongly suggested that, when deciding whether to indict a corporation — and indictment can be a death sentence for companies in certain businesses — they consider whether the company has “cooperated” in the investigation. “Cooperation” was partially defined by whether the corporation agreed to waive the legally protected attorney-client and work-product privileges that otherwise would protect the company from having to turn over confidential information gathered in its own internal investigations, including corporate counsel’s discussions with employees. Another factor, suggested Holder, would be “whether the corporation appears to be protecting its culpable employees and agents” by advancing or paying those individuals’ attorney fees. A further sign of possible noncooperation would be whether the corporation kept the employees on the payroll or entered into a joint defense agreement with any of them. Put simply, the Holder Memo suggested that, by facilitating the ability of employees to continue working and to vigorously defend themselves, the company was demonstrating a noncooperative attitude that could get it indicted. It was a serious affront to the basic adversarial and rights-driven structure of the American legal system.”
[EDIT] Silverglate continues:
“As the dot-com bubble burst and corporate scandals made headlines, DOJ responded by ratcheting up the pressure on white-collar defendants. The 2003 “Thompson Memorandum,” successor to the Holder version, stated far more explicitly that “cooperation” would be a major factor in a prosecutor’s decision to indict a corporation. And as the language grew more threatening with each passing iteration, corporations under federal investigation became adversaries not of the government, but of their own employees.”
[END OF EDIT]
The policy was subsequently tested — and rejected — in court:
“This attack on the individual defendants’ Sixth Amendment right to counsel caused Judge Lewis A. Kaplan of the Southern District of New York to dismiss, in June 2006, the massive federal fraud indictment brought against a group of former employees of KPMG in U.S. v. Stein, a groundbreaking ruling affirmed by the 2d U.S. Circuit Court of Appeals this past August. Kaplan denounced the government’s pressure on KPMG to show “cooperation” through both advising employees against seeking legal counsel and not paying the defendants’ legal bills. The government, Kaplan wrote, “let its zeal get in the way of its judgment. It has violated the constitution it is sworn to defend.“
I ascribe good motives to Eric Holder and the Clinton Administration, as well as to John Yoo and the Bush Administration, in their efforts to fight corporate crime and terrorism. But Silvergate’s analysis suggests the Holder Memorandum jeopardized the civil liberties of many more Americans than the policies of the Bush Administration. If Holder’s appointment is any indication, that doesn’t bother Obama or liberals one bit.