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Justice Policy on Corporate Prosecutions Under Review in U.S. By LARA JAKES JORDAN (Associated Press Writer) Dec. 1, 2006 (Associated Press) WASHINGTON - The Justice Department is considering scaling back tough policies used to prosecute scandal-plagued corporations, legal tools criticized as unfairly pressuring companies and employees to cooperate in investigations. The policies, used in criminal investigations of accounting firms Arthur Anderson and KPMG, could be changed as early as next week, according to people familiar with discussions among Bush administration officials and congressional leaders. No final decisions have been made, department officials said. But the review comes as outgoing Senate Judiciary Chairman Arlen Specter, a Pennsylvania Republican, threatens to ease parts of the 2003 crackdown on white collar crimes in legislation he plans to file next week. Additionally, an odd coalition of critics - from the U.S. Chamber of Commerce and the American Bar Association to former Attorney General Ed Meese and the American Civil Liberties Union - are calling for greater protections for those targeted in cases. At issue is what has become known as the Thompson Memo, written by former Deputy Attorney General Larry Thompson. In the wake of scandals involving Enron Corp. and WorldCom Corp., it sought to coordinate prosecution tactics among the country's 94 U.S. attorneys. The policy allows prosecutors to show leniency to companies that cooperate with investigators by refusing to pay employees legal fees and disclosing confidential discussions between company lawyer and executives targeted by the government. The memo suggests that companies not cooperating could be indicted. "There's a general understanding that there's going to be a change that would eliminate any reliance on whether a company was paying attorney fees for employees when making the decision to charge or indict a corporation," said Brian Walsh, senior legal research fellow at the Heritage Foundation think-tank in Washington. The think-tank scheduled a discussion Thursday about the memo, led by Thompson. Walsh, who has been briefed on some of the department's discussions, said the department may require the attorney general or the top deputy to review and approve any government access to confidential attorney-client discussions. That would take away the discretion from U.S. attorneys in the states. That, however, "won't do enough to restore the historical protections of the attorney-client relationship," Walsh said. Few, if any, critics take issue with the Thompson memo's overarching goals. It has helped secure hundreds of corporate fraud convictions since it was written, and is "designed to protect the American investor," department spokesman Brian Roehrkasse said. Roehrkasse signaled that major changes are not likely, noting that waiving the confidentiality of attorney-client discussions "may very well be in the corporation's best interest." "Doing so has allowed prosecutors to complete as expeditiously as possible their investigation while minimizing the disruptive affect a criminal investigation can have on a corporation," he said. Jonathan Macey, a corporate governance and finance professor at Yale Law School, said the policy lets prosecutors proceed as though companies already have been proved guilty. "If you have a situation where someone is actually innocent but they've been branded as uncooperative - it's a very scary Kafkaesque thought," Macey said. In June, a federal judge in New York criticized the policy as it was used in a 2004 case against KPMG. Trying to cooperate with prosecutors and avoid indictment, the company cut off legal aid to 16 employees charged with setting up illegal tax shelters. "KPMG refused to pay because the government held the proverbial gun to its head," U.S. District Judge Lewis A. Kaplan wrote. By doing so, the judge said, the government violated the employees' rights to fair trials. |
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