The Foundry

For more than three years, a diverse coalition from all quarters of the legal community has been pushing Congress to help restore Americans’ Sixth Amendment guarantee to assistance of counsel in all criminal prosecutions. This right has been steadily eroded since a Deputy Attorney General issued a memo in 1999 outlining how the Department of Justice should make prosecutorial decisions when investigating possible wrongdoing by companies and their employees. That attorney … Pressident-elect Barack Obama’s Attorney General appointee Eric Holder.

Criminal defense and civil liberties lawyer Harvey Silverglate writes in The National Law Journal:

Serious students of DOJ will recognize the overriding importance of the “Holder Memorandum.” The seemingly esoteric memo, issued by Holder in 1999, has seen relatively little discussion. But it has likely had more impact on the liberty of Americans and on respect for constitutional values than anything else Holder did during his stint at DOJ, and it may tell us much about his direction, if confirmed.

In his controversial directive to line prosecutors, Holder strongly suggested that, when deciding whether to indict a corporation — and indictment can be a death sentence for companies in certain businesses — they consider whether the company has “cooperated” in the investigation.
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Put simply, the Holder Memo suggested that, by facilitating the ability of employees to continue working and to vigorously defend themselves, the company was demonstrating a noncooperative attitude that could get it indicted. It was a serious affront to the basic adversarial and rights-driven structure of the American legal system.
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This attack on the individual defendants’ Sixth Amendment right to counsel caused Judge Lewis A. Kaplan of the Southern District of New York to dismiss, in June 2006, the massive federal fraud indictment brought against a group of former employees of KPMG in U.S. v. Stein, a groundbreaking ruling affirmed by the 2d U.S. Circuit Court of Appeals this past August. Kaplan denounced the government’s pressure on KPMG to show “cooperation” through both advising employees against seeking legal counsel and not paying the defendants’ legal bills. The government, Kaplan wrote, “let its zeal get in the way of its judgment. It has violated the constitution it is sworn to defend.”
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Holder was part of an increasingly unhealthy culture when he served in DOJ. It seems reasonable to request that the senators on the Judiciary Committee ask him whether he, like the president-elect, will be a change agent or will simply preserve the status quo. Based on recent history, it is far more important that the next AG respect the Constitution, rather than launch some new scorched-earth crusade against the evil-doer du jour.