Tuesday, September 12, 2006

The Senate Talks About the Thompson Memo

The Senate Committee on the Judiciary has scheduled a hearing on "The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations" for today.  The impressive lineup of individual's giving testimony are:

PANEL I


The Honorable Paul J. McNulty
Deputy Attorney General
U.S. Department of Justice
Washington, DC


PANEL II


The Honorable Edwin Meese
Former Attorney General
Ronald Reagan Distinguished Fellow in Public Policy
Chairman, Center for Legal and Judicial Studies
The Heritage Foundation
Washington, DC


Thomas J. Donohue
President and CEO
U.S. Chamber of Commerce
Washington, DC


Karen J. Mathis, Esq.
President
American Bar Association
Chicago, IL


Andrew Weissmann, Esq.
Partner
Jenner & Block LLP
New York, NY


Mark B. Sheppard, Esq.
Partner
Sprague & Sprague
Philadelphia, PA

The testimony from these witnesses will be retrievable online here.  More will be posted on this blog tomorrow regarding this testimony.  But to give a preview,  the written testimony of the Hon. Edwin Meese includes the following passage regarding the McCallum Memo, an unsuccessful attempt by the government to appease people by saying that waivers of attorney client privilege need to coordinated within each individual USA's office.  Meese states:

"Nevertheless, it appears that the McCallum Memorandum does not represent a sufficient improvement. The main objectives of the Memorandum included providing greater uniformity, predictability, and transparency to the process that federal prosecutors use when requesting a waiver of a business organization’s attorney-client privilege. But the McCallum Memorandum does nothing to address the inherently coercive nature of the Thompson Memorandum factors that take into account whether a company has waived its privilege."

There are many important issues of the day that need to be addressed by the Senate.  So why is DOJ allowing so much time to be spent on the waiver issue, an issue they could easily resolve by just removing it from the Memo and from practice? Don't they get it -  asking for a waiver of the attorney-client privilege is just plain wrong.

(esp)

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