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 and Lawrence M. Stratton, “The Tyranny of Good Intentions”
Once upon a time, the U.S. Justice Department respected the legal rights that make law a shield of the innocent rather than a weapon 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 Justice Department prosecutors in the tax shelter case involving the accounting firm KPMG. The Justice Department has demanded, and the accounting firm has agreed to, a waiver of the attorney-client privilege for communications between lawyers and KPMG employees involved in marketing tax shelters the Internal Revenue Service has challenged.
The attorney-client privilege was long championed by jurists because they realized the privilege promoted equality under the law. Convictions can result from 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 Justice Department 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, department has employed various means of subverting the attorney-client privilege.
Sentencing guidelines from the White House-appointed U.S. Sentencing Commission have greatly strengthened prosecutors’ ability to attack the attorney-client privilege. Indictment of a company and the severity of punishment depends on its “cooperation” with the investigation.
A January 2003 memo by Deputy Attorney General Larry D. Thompson, now a fellow at the Brookings Institution, 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 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 himself, the government need never have a real case.
Americans must think seriously about the quality of “justice” 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 Justice Department 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 Justice Department also has disposed of the legal principle there can be no crime without intent. Neither Jeffrey Eischeid nor other KPMG employees knowingly or intentionally sold illegal tax shelters. The products were approved by KPMG’s professional responsibility committee, and the IRS’ challenge does not mean a crime was committed.
However, Justice prosecutors have become experts at creating the impression crimes have been committed. By stripping away a defendant’s rights, prosecutors can 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 ended 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 a congressional authorization bill. 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?
Paul Craig Roberts is a columnist for The Washington Times and is nationally syndicated.