August 29, 2008
Is DOJ Ready to Make the US Attorney's Manual Law?
According to an article, White-Collar Cringe, by Karen Donovan at Conde Nast Portfolio.com, in speaking about the new DOJ guidelines on the prosecution of corporations (here) "Deputy Attorney General Mark R. Filip said the new rules, which will be placed into the United States Attorneys' manual, rather than just a memo, have the force of 'binding law' and 'binding fact.'"
One has to wonder if Deputy AG Filip's words are an attempt to keep Congress from acting on the Attorney-Client Privilege Protection Act. More importantly can these words be reconciled with the opening passages of the U.S. Attorney's Manual which states -
The United States Attorneys' Manual is a looseleaf text designed as a quick and ready reference for United States Attorneys, Assistant United States Attorneys, and Department attorneys responsible for the prosecution of violations of federal law. It contains general policies and some procedures relevant to the work of the United States Attorneys' offices and to their relations with the legal divisions, investigative agencies, and other components within the Department of Justice. It is also available on line at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/
The Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.
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Given the qualifiers in the text, the USAM will probably receive the same interpretation as the IRM (Internal Revenue Manual) in United States v. Caceres, 440 U.S. 741 (1979) -- i.e., not law. But, given the Chevron revelation of the administrative state, I presume that if DOJ wanted to make it something like law, it could promulgate as a regulation or some other somber type of pronouncement (as opposed to its off-hand self-serving comments in the USAM).
Posted by: Jack Townsend | Sep 2, 2008 7:10:34 AM