Looking ahead to today’s Senate Judiciary Committee confirmation hearing for Attorney General nominee Eric Holder, ranking member Sen. Arlen Specter (R-PA) says he is worried about Holder’s “ability to maintain his independence from the president.” This is the wrong question. The proper question is one of judgment: Does the nominee demonstrate the kind of judgment necessary to advise the President in a responsible and constitutionally appropriate way? There are at least five issues which raise serious questions about Holder’s judgment: Pardoning Terrorists: As deputy attorney general, Holder played an active …
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 …
Many have noted that the so-called “Filip Memorandum,” DOJ’s effort to forestall legislation limiting its ability to force companies to waive the attorney-client privilege, does not apply to prosecutions originated by federal agencies other than the Justice Department (e.g., here, here, and here), but few have recognized that the new Guidelines don’t apply to all of DOJ’s activities, either. The broad issue is whether DOJ can take into account a company’s willingness to waive the privilege and work-product protections when deciding whether to indict the company. For many businesses, an …
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 …
