Senate Considers Attorney-Client Privilege
STEVE INSKEEP, host:
Here in Washington, lawmakers are considering how many of your legal rights you might give up to get your company out of trouble. The Senate Judiciary Committee weighed in on an issue that's been consuming the corporate legal world. This hearing was on attorney-client privilege.
Specifically, the question is whether government prosecutors may urge companies to waive attorney-client privilege in exchange for leniency. NPR's Ari Shapiro reports.
ARI SHAPIRO: This is one of those issues that's brought together strange bedfellows. The ACLU, the Wall Street Journal editorial page, the American Bar Association, the U.S. Chamber of Commerce, and high-ranking former Justice Department officials from both parties all oppose the Justice Department's current policy on attorney-client privilege.
The man sent to defend that policy on Capitol Hill yesterday was Deputy Attorney General Paul McNulty.
Deputy Attorney General PAUL MCNULTY: Look, I've got the chairman, the ranking member upset. I've got former DOJ officials writing letters. We've got everybody complaining. The easiest thing for me to do today would be to come here and say we're just going to go ahead and change this policy and make everybody happy. But I wouldn't be doing the right thing as I sit here and I think it through as well as I possibly can as a public servant.
SHAPIRO: The policy that has everyone upset goes like this: when the government is deciding whether to indict a company, it'll be more lenient on companies that cooperate. Prosecutors may encourage companies to hand over private communications with their attorneys, or tell them not to pay employees' private legal fees. The more cooperative the company is, the more lenient the prosecutors will be.
In theory, cooperation is voluntary. But business groups say in practice, it's virtually mandatory. Judiciary Committee Chairman Arlen Specter said he believes the policies undermine some basic constitutional rights.
Senator ARLEN SPECTER (Republican, Pennsylvania): The right to counsel is just very, very fundamental.
SHAPIRO: He said if companies don't surrender their rights, they're more likely to be indicted. And an indictment can kill a business.
Ranking Democrat Patrick Leahy accused the Justice Department of bullying companies.
Senator PATRICK LEAHY (Democrat, Vermont): If I'd taken a position like this when I was a prosecutor - that boy, you'd better cooperate or wow, we're really going to hit you with a lot of charges - the judges and the criminal bench in my state would have referred me to the Vermont Bar Association for sanctions.
SHAPIRO: Both senators drew parallels between the executive privilege that the White House claims when it withholds documents from Congress and the attorney-client privilege that the Justice Department pressures companies to waive.
But Deputy Attorney General McNulty proposed a different analogy.
Deputy Atty. Gen. MCNULTY: Just as drug trafficking defendants routinely waive their constitutional right to a trial by jury in exchange for reduced charges, so too a corporation can waive a basic right when it's in its interest to do so.
SHAPIRO: Chairman Specter was not convinced.
Sen. SPECTER: I think it is coercive. It may even rise to the level of being a bludgeon.
SHAPIRO: Specter later asked former Attorney General Edwin Meese for his recommendation on what the committee should do to change the Justice Department's policy. Meese said the broad array of voices opposing the policy at this hearing might be enough. If not…
Mr. EDWIN MEESE (Former United States Attorney General): If there were no other remedy availing, it would be appropriate inasmuch as it's a proper function of Congress to implement by legislation basic constitutional rights, which I believe this is one.
SHAPIRO: Specter said that sounds to him like the right formula.
Ari Shapiro, NPR News, Washington.
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