Attorney General Michael Mukasey said today he has not been persuaded that the McNulty memo needs to be changed in light of calls for legislation addressing the attorney-client privilege.
“There are some people who favor legislation. We think and continue to think that the McNulty memo is working and has worked,” Mukasey told reporters at a roundtable in his conference chambers at Main Justice. “There were either no or very, very, very small numbers for actual requests of waiver of the privilege. There were requests for information.”
A House bill passed last fall would bar federal prosecutors and investigators from demanding or requesting that a corporation waive its attorney-client privilege. In addition, it would forbid them from using a waiver as a factor in determining whether to indict a corporation and prevent prosecutors from compelling a corporation to submit its attorneys' work product.
That legislation, which is strongly opposed by the Justice Department, has yet to be reconciled with a Senate version, which has not cleared the Senate Judiciary Committee. Justice officials have argued that the legislation would weaken the government's ability to uncover corporate fraud and wrongdoing to the detriment of pension holders and investors.
Mukasey cautioned that statutes are “hard to amend” while it’s “relatively easy to tweak a letter or a memo to take care of an actual or perceived problem.”
Responding to a question on whether the McNulty memo should be revised, Mukasey said it could be, but not in response to bills in Congress.
“If there’s a need to tweak the policy, the policy will be tweaked and that arises independent of the question of whether somebody wants to put something in legislation,” he said. “I don’t see a negotiation of ‘I’ll do this, then I’ll give this tweak if you don’t give me legislation.’ Legislation in this area could wind up hurting people it’s intended to help. As a very wise saint once said, ‘More tears are shed over answered prayers than over unanswered prayers.’ And this might be one of those situations.”
Susan Hackett, senior vice president and general counsel of the Association of Corporate Counsel, says the current DOJ practices regarding the attorney-client privileges amount to "coercion" and must stop.
"This is about this system operating in an equal and fair manner across the board," Hackett says. "This is a Justice Department that's interested in writing its own rules. That’s why this legislation is necessary."