Bush Administration Attacks Attorney-Client Privilege—And “Rights Of Englishmen”

“If
the government had access to the communications between
a client and his lawyer, the lawyer would be nothing but
a government agent, like

Soviet defense attorneys whose official role was to
serve as adjuncts to the prosecution.”—Paul Craig
Roberts & Lawrence M. Stratton,

The Tyranny of Good Intentions

Once upon a time the US Department
of Justice respected the legal rights that make law a
shield of the innocent rather than a weapon in the hands
of government.

No more. What the great English jurist William
Blackstone called

“the Rights of Englishmen” have been

eroded beyond recognition.

The last remaining right—the
attorney-client privilege—is under full scale assault by
DOJ

prosecutors in the tax shelter case involving the
accounting firm, KPMG.

The Justice Department has
demanded, and the accounting firm has agreed, to waive
the attorney-client privilege for communications between
lawyers and KPMG employees involved in marketing tax
shelters that the IRS has challenged.

The

attorney-client privilege was long championed by
jurists because they realized that the privilege
promoted equality under the law.  Convictions can result
from a lack of access to legal knowledge as well as from
actual wrongdoing. To ensure defendants would avail
themselves of legal counsel, their communications with
attorneys were made confidential, outside the reach of
prosecutors.

In recent years, the DOJ has taken
the position that winning its cases is more important
than historic rights centuries in the making.  Arguing
that the innocent have nothing to fear from their
attorneys` disclosures of their confidences, the DOJ has
employed various means of subverting the attorney-client
privilege.

Sentencing guidelines from the

US Sentencing Commission, a commission appointed by
the White House, have greatly strengthened the ability
of prosecutors to attack the attorney-client privilege.
Whether or not a company is indicted and the severity of
punishment depends on its “cooperation” with the
investigation.

A January 2003 memo [Principles
of Federal Prosecution of Business Organizations]
written by Deputy Attorney General

Larry D. Thompson, currently a

fellow at the Brookings Institution in Washington,
DC, defines “cooperation” in a way that drives a
wedge between a company and its employees. A company
that pays its employees` legal fees is defined as
uncooperative.

Faced with the threat of being
declared uncooperative, KPMG

announced that it would pay its employees legal fees
only if they waived the attorney-client privilege and
“cooperated” with the investigation. 

Invariably, “cooperation”
requires self-incrimination and negotiation of a guilty
plea. By making it impossible for a defendant to defend,
the government never has to have a real case.

Americans need to think seriously
about the quality of “justice” that is coming
from the Justice Department. Prosecutors have defined

“cooperation” as aid in convicting oneself or a
fellow employee, as waiving all constitutional rights
and privileges, as betrayal of fellow employees, and as
helping prosecutors create the appearance of guilt even
when no crime has been committed.

Among the pending victims in the
KPMG case,

Jeffrey Eischeid faces 20 years in prison for

marketing KPMG tax shelters that

experts said were legal.

The IRS has the right to challenge
the tax shelters, and the accounting firm has stopped
marketing them. But for the DOJ to retroactively declare
them illegal illustrates the precarious position of a
defendant today. Whatever he has done can be

declared illegal after the fact.

The DOJ has also disposed of the
legal principle that there can be no crime without
intent. Neither Jeffrey Eischeid nor other KPMG
employees were knowingly or intentionally selling
illegal tax shelters.  The products were approved by
KPMG`s professional responsibility committee, and the
IRS`s challenge does not mean a crime was committed.

However, DOJ prosecutors have
become experts at creating the impression that crimes
have been committed. By stripping away a defendant`s
rights, prosecutors have the power to coerce a guilty
plea, crime or no crime.

Conservatives who prattle about
Americans living under a rule of law are speaking of a
bygone era. The rule of law came to an end during the
New Deal when

President Franklin Roosevelt turned Congressional
statutes into authorization bills for

federal bureaucrats to legislate via regulations.

Today there is even less
accountability. Appointed officials make criminal law
without even an authorization bill from Congress. The
Sentencing Commission`s “proposals” become law
unless Congress vetoes them.

What we are witnessing is the
emergence of a fascist legal order in which law and
legal procedure are whatever unelected officials decide
serves the interest of government.

How else can we explain how the
four foundations of our legal system—no retroactive law,
no crime without intent, no self-incrimination, and the
attorney-client privilege—have been swept aside in the
federal case against KPMG?

COPYRIGHT CREATORS
SYNDICATE, INC.

Paul
Craig Roberts was Associate Editor of the WSJ editorial
page, 1978-80, and columnist for “Political Economy.”
During 1981-82 he was Assistant Secretary of the
Treasury for Economic Policy. He is the author of



Supply-Side Revolution: An Insider`s Account of
Policymaking in Washington.