Tuesday, November 1, 2005

Do the President and Vice-President Have An Appropriate Compliance Program?

With the indictment of "Scooter" Libby, and an ongoing investigation by Prosecutor Fitzgerald, one has to ask how a leak such as this could have happened.

If this was a US corporation or a business and there was alleged criminal activity occurring within the corporation, a prosecutor might be looking at the entity to discern whether the entity should be charged with a crime. And the prosecutor would probably be turning to the Thompson Memo of January 20, 2003, and the nine factors to be considered in deciding whether to indict the corporation.

Now obviously the US government is not a corporation, but perhaps this is a good time to re-evaluate some of the provisions of the Thompson Memo, and also evaluate whether the Office of the President and Vice-President are handling the recent developments in the same way they demand of corporations and businesses.

The Thompson Memo uses nine factors "in reaching a decision as to the proper treatment of a corporate target." Six of these nine factors present interesting questions here for the government:

1. the nature and seriousness of the offense, including the risk of harm to the public, .... WE ARE TALKING ABOUT THE LEAK OF A CIA OPERATIVE'S IDENTITY AND NATIONAL SECURITY - THIS ONE'S EASY

2. the pervasiveness of wrongdoing within the corporation, including the complicity in, or condonation of, the wrongdoing by corporate management - -DID CHENEY KNOW?

4. the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection . . . - - ARE THEY WILLING TO WAIVE ALL ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT PROTECTIONS?

5.the existence and adequacy of the corporation's compliance program . . .- - DO THEY HAVE AN INTERNAL COMPLIANCE PROGRAM AND IS IT AN "EFFECTIVE PROGRAM"?

6. the corporation's remedial actions, including any efforts to implement an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, . . . - - ARE THEY DISCIPLINING EVERYONE WHO DID WRONG?

Obviously, this is the government we are talking about and not a corporation, but should the executive be held to the same standard that they hold businesses and corporations?



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