Saturday, April 8, 2006
Judge Lewis A. Kaplan's ruling on KPMG (post discussing here) certainly raises some interesting questions. As noted by two comments to that post and an email received, we need to look further at what the judge stated. The Wall Street Journal's Review and Outlook piece here, talks about another aspect of what the judge stated, that being, whether there are unconstitutional aspects of the Thompson Memo.
I wonder whether the Thompson Memo, an internal guideline of the DOJ, can really be held unconstitutional. What I think can be found unconstitutional are acts by prosecutors using this memo that deprive individuals or corporations of constitutional rights. Clearly a deprivation of a Sixth Amendment right to counsel would fall under that theme.
The problem here is that a corporation is unlikely to raise the issue. It would mean placing themselves at risk of a possible indictment and death (e.g. Arthur Andersen - once you are dead, you are dead forever, even when there is a reversal). A Board of Directors, answerable to shareholders, might not be willing to take such a risk. And the problem with an individual raising the issue will likely be whether he or she has standing to do so in a case. The best case would probably be one where individual attorney fees were deprived by a corporation because the government placed a restriction on that corporation paying the executive's fees despite a prior contract arrangement that required the payment of these fees.
What is perhaps the important point here, is that judges are noticing what prosecutors are doing in using the Thompson Memo. The benefit of a tri-partite system is that when one branch steps out of line, another can intercede.
(esp) (with a hat tip to Ross Garber)