Thursday, July 10, 2008
Why is it that immediately before the legislature is about to make a change that will affect DOJ policy, the DOJ steps in to say - we'll make a change, no need for you Senators to step into this matter. The problem with this approach is that the cosmetic changes that DOJ then makes usually will not resolve all the issues being considered by the congressional committee. And more importantly, where was DOJ when everyone was shouting that change was necessary. DOJ argues that the criminally accused needs to accept responsibility timely. But their failure to act timely in changing policy -- and then announcing the changes just before the legislature acts -- is disturbing.
The latest scenario involves the attorney-client privilege and the famed McNulty Memo, which in prior lives resembled the Holder Memo, then the Thompson Memo, followed by the McCullum revisions. The latest is that Deputy Attorney General Mark Filip sent a letter to Senators Leahy and Specter outlining changes that will be made by DOJ.
The letter states that in the last 18 months DOJ has not approved any attorney-client privilege waivers in the corporate arena. If that's the case, then why not just change the law so the problems of the past never happen again?
The letter provides that cooperation will be measured by facts and evidence and not by waivers. But who will provide the oversight to make sure that this actually happens in the U.S. Attorney offices across the country?
And why doesn't the letter speak to Category I waivers? Will there be no changes here?
And after listing some suggested changes, changes that could probably result in a new Memo, the Filip Memo, the Deputy Attorney General states that "I have come to the conclusion that the above changes to the Principles are preferable to any legislation, however well intentioned and diligently drafted, that would seek to address the same core set of issues."
But why is it preferable for DOJ to make the changes? Is it because it will be easier for DOJ?
Somehow I have a feeling that this letter will not pacify advocates for the Attorney Client Privilege Protection Act.
Letter From Deputy Attorney General Mark Filip -
What Others Are Saying:
Pedro Ruz Gutuerrez, Legal Times, AG Mukasey Hints at Revision of McNulty Memo, Spars With Senators at Hearing
Dan Slater, WSJ Blog, DOJ: No, No, Don’t Worry About It, Senator. We’ll Fix the McNulty Memo
(esp) (blogging from JFK Airport)