Former U.S. Attorney General On The McNulty Attorney-Client Waiver Memo

Former U.S. Attorney General Richard Thornburgh told the Senate Judiciary Committee in 2007 hearings that "[i]n all the years" of his service in law enforement "requests to organizations ... to hand over privileged information never came to my attention—and I would have rejected such a request if it had."

Video Of Former Attorney
General Thornburgh’s Testimony

On June 25, the Federal Evidence Blog reported on a letter by 33 former U.S. Attorneys in support of S. 186. The article, New Development On Attorney-Client Front described growing support for legislative measures that would codify a new statute: 18 U.S.C. § 3014 concerning the attorney-client privilege.

We neglected to point out that opposition from former prosecutors to the McNulty memo is becoming a cottage industry. The reservations that the 33 U.S. Attorneys express about the approach of the McNulty memo reflect some observations of former U.S. Attorney General Richard Thornburgh on the issue. On September 18, 2007 Former U.S. Attorney General Richard Thornburgh testified before the Senate Judiciary Committee during its examination of "approaches to corporate fraud prosecutions and the attorney-client privilege under the McNulty Memorandum." The video of Mr. Thornburgh's formal statement appears below. An excerpt from the transcript of his testimony, including his formal statement is posted after the video.

Excerpt From Transcript of Mr. Thornburgh's
Testimony on September 18, 2007

Senator Specter:
I could refer to Governor Thornburgh as "Attorney General Thornburgh." He has a unique, really spectacular record of public service: a two-term Governor, U.S. Attorney for the Western District of Pennsylvania, Assistant Attorney General in the Criminal Division, Attorney General under two Presidents. He worked in the United Nations. Undergraduate degree from Yale, law degree from the University of Pittsburgh, and became U.S. Attorney in 1969 when I was district attorney of Philadelphia, and we used to chase the criminals into central Pennsylvania because they did not want to be within his jurisdiction or mine. So it was a different world then.
Thank you very much for joining us, Governor, and I look forward to your testimony.

Mr. Thornburgh:
Thank you, Senator Specter, and thanks to Chairman Leahy; my former colleague in the Department of Justice, Senator Sessions.

Senator Sessions:
You were my boss, I think is the right phrase, and I was honored to serve with you.

Mr. Thornburgh:
Well, why quibble?

I appreciate the opportunity to speak to you today about the ominous dangers that the Justice Department’s McNulty Memorandum poses to the attorney-client privilege, the work product doctrine, and the rights of individuals.

Let me state at the outset that, in my view, the McNulty Memorandum is so inherently problematic that there is nothing to be gained by continuing to wait and see how it may be implemented. To the contrary, Congress should enact legislation such as S. 186 promptly to restore the attorney-client privilege, the work product doctrine, and the constitutional rights of individuals to their proper places in our system of justice.

A year ago, almost to the day, this Committee received extensive oral and written testimony from Mr. Weissmann—who is on this panel with me—former Attorney General Edwin Meese, and my-self, among others, on the issues at stake today. We emphasized then the fundamental importance of the attorney-client privilege to our legal system generally and to corporate compliance programs in particular. We also explained the corrosive dynamic engendered by Federal cooperation policies that provide credit to organizations when they waive the privilege or work product protection. No matter what its procedural requirements or how reasonably the Department of Justice may promise to implement it, a waiver policy poses overwhelming temptations to target organizations, often desperate to save their very existence. Prosecutors do not need to issue express requests for privileged documents to receive them. The same insidious result arises from policies that offer credit to organizations if they take adverse actions against employees that prosecutors deem culpable.

I do not question then-Deputy Attorney General Paul McNulty’s good faith in attempting to remedy the widely recognized flaws of the Thompson Memorandum and its predecessor, the Holder Memorandum. Unfortunately, the McNulty Memorandum is only an incremental improvement and retains most of the basic flaws of its predecessors. I have set forth in detail the particulars of these flaws in my written statement to which I would refer you.

There is no point in "giving the Department a chance" to implement the McNulty Memorandum, as some would suggest. Companies know what actions might win them a reprieve from indictment and, thus, prosecutors do not need to issue any express requests. The fact that companies can get cooperation credit for these actions is the fundamental flaw in the McNulty Memorandum.

S. 186 would forbid Government lawyers from seeking waivers of privilege or work product, and from coercing organizations to take specified adverse actions against their employees. Importantly, S. 186 would also forbid Government lawyers from "condition[ing] treatment" of an organization on whether the organization waived the privilege or penalized its employees, and from otherwise "us[ing such actions] as a factor in determining whether [the] organization... is cooperating with the Government." S. 186 thus addresses the fundamental flaw in the McNulty Memorandum.

Before I close, let me briefly respond to those who argue that legislation like S. 186 improperly or unwisely impinges on the discretion of Federal prosecutors.

As you know, for a large part of my professional career, I either served as a Federal prosecutor myself or supervised other Federal prosecutors. S. 186 does not in any way impair Federal prosecutors from doing their proper jobs. They would remain free to prosecute— or refrain from prosecuting—as warranted by the evidence and the law. In support of such determinations, they could seek any communication or material they reasonably believe is not privileged, and they could accept voluntary submissions by companies of the results of internal investigations. They could also continue to seek other information through grand jury subpoenas, immunity agreements, and all the other tools that prosecutors have historically used. They simply could not seek, directly or indirectly, waivers of privileged information.

In all the years that I served as a U.S. Attorney, as Assistant Attorney General in charge of the Criminal Division, and as Attorney General, requests to organizations we were investigating to hand over privileged information never came to my attention—and I would have rejected such a request if it had. Clearly, in order to be deemed cooperative, an organization under investigation must provide the Government with all relevant factual information and documents in its possession, and it should assist the Government by explaining the relevant facts and identifying individuals with knowledge of them. But in doing so, it should not have to reveal privileged communications or attorney work product. This balance is one I found workable in my years of Federal service, and it should be restored.

The attorney-client privilege dates from Elizabethan times. In defining the privilege in the corporate context, the U.S. Supreme Court in the UPJOHN case [Upjohn Co. v. United States, 449 U.S. 383 (1981)] concluded that, and I am quoting, "an uncertain little better than no privilege at all." Just such uncertainty has been created by the Department of Justice, and the destruction of the privilege is only compounded by the McNulty Memorandum.

Thank you for the opportunity to be here today, and I look forward to your questions.

[The prepared statement of Mr. Thornburgh appears as a submission for the record.]

Senator Specter:
Thank you very much, Governor.
We now turn to Professor Daniel Richman ...

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