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  • Morning Bell: Time Running Out to Protect a Fundamental Civil Right

    The Sixth Amendment of the U.S. Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.” Fundamental to ensuring the constitutional right to an attorney is the attorney-client privilege. For almost a decade now, the Department of Justice under both Presidents Clinton and Bush, has been steadily undermining this fundamental protection against unjust criminal punishment.

    Despite recent efforts by the DOJ to reverse course, a broad bipartisan coalition has formed to support legislation that will restore the privilege. The coalition includes the American Civil Liberties Union, National Association of Criminal Defense Attorneys, and Clinton DOJ officials Walter Dellinger and Seth Waxman as well as conservative legal legends Ed Meese, Dick Thornburgh, Ken Starr and Ted Olson.

    The problem began in 1999 when the DOJ issued a memo outlining nine factors for determining if an entire company should be indicted for the wrongdoing of one or more employees. One of the nine factors was “cooperation,” which included whether or not a company waived all attorney-client privilege protections. DOJ issued another memo in 2004 requiring prosecutors to take into account all nine factors when considering indictment.

    Together these two internal DOJ memos created a brave new world of law enforcement, where prosecutors routinely demanded that any company waive all attorney-client privileges for its employees or face indictment. Since indictment is a death threat for most companies, especially publicly traded ones, complying with DOJ requests for privileged material cannot be considered voluntary in any way.

    In 2006 a federal judge ruled that prosecutors applying the DOJ policies had violated the Fifth and Sixth Amendment rights of two employees. DOJ has since modified its internal procedures, but since 1999 it has now changed its stated policy nine times. Norman Veasey, former chief justice of Delaware, issued a report to the Senate Judiciary Committee documenting that no matter what DOJ’s stated internal policy is, prosecutors in the field continue to demand privileged materials under the treat of indictment.

    Worse, any current DOJ policy could be overturned by a future administration with the stroke of a pen, and other federal agencies such as the Securities and Exchange Commission and Internal Revenue Service have also begun to adopt DOJ’s bad habits. Only legislation making it crystal clear that prosecutors cannot request privileged material can protect Americans’ right to counsel.

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    5 Responses to Morning Bell: Time Running Out to Protect a Fundamental Civil Right

    1. Lady Liberty, Omaha says:

      I remember my liberal minister defending the honor of Arthur Anderson, whom he knew personally. He always defended the ACLU too before they began defending guilty anti-Americanisms and harrassing innocent American citizens.

      So it's nice to see ACLU get something right for a change.

      The right precedent should have been set with Arthur Anderson: the prosecutors should have been sued up the wazoo. They should have done jail time for their abuse of our court system. They should have sent out letters from the Supreme court to all of Anderson's clients exonerating that fine accounting firm and all its employees. The company should have reformed from the fruits of their law $uit and all the customers should have rallied to their defense by signing on with them again.

      We will seek–and we will find–that kind of courageous and loyal integrity for the next unshakeable 100 years as we move forward again, the American Way. Precedent without principle is not worth repeating.

      Lady Liberty

    2. Ed, Leesburg VA says:

      So Obama is just "seeing the light". What's the problem? The bit of news is presented as if it should be a big deal.

    3. Vic Cormier Tallahas says:

      Thank You all for keeping us informed. I wish everyone would at least read your insightful information.

    4. James Wolbert, Garf says:

      i dont think The Senator from Ill. knows or understands what he needs to know on military planning or policy. He moves from one position to another based on poltics not what is good for the USA. His turnabouts are dizzing to say the least. It reminds me of Jimmy Carter.

    5. Patricia I. Spear, F says:

      It is frightening to see what Obama is planning to do to the largest number of people who are starting to retire. After going to college, paying back student loans, working all of our lives, saving as much as we can, paying taxes, and investing in the stock market, real estate, etc. to assure that our lives will be comfortable in retirement, that we will be taxed, and penalized for making a profit on money we were already taxed on, then die and pay additional taxes on what our estate is valued at, is nothing less than underminning capitalism, and our pursuit of happiness. I am scared. Obama is a liar and as deceitful as they come.

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