More constitutional questions about Eric Holder

Eric Holder, President-Elect Barack Obama's choice for U.S. attorney general, is an impressive candidate who already has significant Justice Department experience. But he comes with baggage that brings into question his respect for individual rights. In addition to his troubling stance on drug policy and the right to bear arms, his actions as deputy attorney general in the Clinton administration suggest that he may not fully respect the Sixth Amendment right to counsel and the ability of defendants to receive a fair trial.

The Sixth Amendment to the U.S. Constitution says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The right to counsel is key to a fair trial, since it allows defendants to seek legal advice and wage the best defense possible against the impressive resources fielded by government prosecutors. But as deputy attorney general in 1999, Holder penned a memo regarding the prosecution of corporations that threatened companies with dire consequences if they helped their employees wage a defense -- or even kept them on the payroll. All this, remember, while the trial is being waged, before anybody has been convicted of a crime.

Holder's memo read, in part:

In gauging the extent of the corporation's cooperation, the prosecutor may consider the corporation's willingness to identify the culprits within the corporation, including senior executives, to make witnesses available, to disclose the complete results of its internal investigation, and to waive the attorney-client and work product privileges. ...

Another factor to be weighed by the prosecutor is whether the corporation appears to be protecting its culpable employees and agents. Thus, while cases will differ depending on the circumstances, a corporation's promise of support to culpable employees and agents, either through the advancing of attorneys fees, through retaining the employees without sanction for their misconduct, or through providing information to the employees about the government's investigation pursuant to a joint defense agreement, may be considered by the prosecutor in weighing the extent and value of a corporation's cooperation.

Four years later, with a new party in the White House, Holder's directives were restated by Deputy Attorney General Larry D. Thompson. It was this new memo, the Thompson restatement of Holder's memo, that guided the Justice Department in its prosecution of KPMG for allegedly abusive tax shelters. Sure enough, the Justice Department brought pressure to bear in the form of Thompson's restatement of Holder's guidelines for cutting off corporate defendants' right to counsel. Judge Lewis A. Kaplan described the results in his opinion (PDF) in a motion to suppress certain statements:

Although KPMG long had paid legal fees for any of its employees who were sued or charged with crimes as a result of doing their jobs, the government threatened to consider such payments as a factor weighing in favor of indicting the firm. It threatened also to consider any failure by KPMG to cause its employees to make full disclosure to the government as favoring indictment. So KPMG changed its practice regarding legal fees. It informed employees that it would pay fees, up to $400,000, but only on the condition that they cooperate with the prosecutors. In other words, KPMG told its personnel that it would cut off payment of legal expenses of any employee who refused to talk to the government or who invoked the Fifth Amendment. And it made crystal clear that it would cut off any payments of legal fees to anyone who was indicted.

Judge Kaplan was not pleased:

Having considered the evidence, the Court is persuaded that the government is responsible for the pressure that KPMG put on its employees. It threatened KPMG with the corporate equivalent of capital punishment. KPMG took the only course open to it. In the words of its chief legal officer, KPMG did everything it could “to be able to say at the right time and with the right audience, we’re in full compliance with the Thompson Memorandum.”

Ultimately, the case was dismissed, with Kaplan writing that the government "let its zeal get in the way of its judgment. It has violated the constitution it is sworn to defend."

The case was a big embarassment for the government -- not least of all because its own unconstitutional actions torpedoed the indictment. Not surprisingly, Eric Holder was asked about the wisdom of his 1999 memo. He insisted that, never mind the plain language of his writing, his original guidance had been misunderstood, telling the Wall Street Journal, “It was never the intent to view waiving the attorney-client privilege as a negative. If you made a decision to waive the privilege, you could get credit for that, but it was only in extraordinary circumstances and should have only been viewed as a positive.”

Faced with the failure of its earlier tactics, the Justice Department has revised its policy (PDF) regarding corporate prosecutions.

Of necessity, Eric Holder's 1999 memo is no longer in effect, and he is unlikely to risk his prosecutorial efforts in the Obama administration by reinstating policies that the courts have rejected.

The question, though, is whether he retains his old, dismissive attitudes toward the constitutional rights of the people he prosecutes. As Harvey Silverglate, a defense attorney and former head of the Massachusetts branch of the ACLU writes:

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.