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A bipartisan group of 11 former senior Justice Department officials has written Attorney General Alberto Gonzales to protest the government’s tactics in investigating corporate wrongdoing, tactics that they see as “seriously eroding” attorney-client privilege. The letter, dated Sept. 5, adds to a growing chorus of criticism of the aggressive way in which the Justice Department has pursued corporate-fraud investigations since the collapse of Enron in 2001. Signatories to the letter include former Attorneys General Richard Thornburgh and Griffin Bell. Singled out for criticism are Justice Department policies, outlined in the 2003 Thompson memo (named for former Deputy Attorney General Larry Thompson), encouraging prosecutors to demand that companies under scrutiny waive the attorney-client privilege in return for more lenient treatment from government investigators. “We believe that the Thompson Memorandum is seriously flawed and undermines, rather than enhances, compliance with the law,” the letter states. The former Justice officials argue that the Justice Department’s policies have discouraged corporate boards and executives from consulting with their lawyers, harmed the ability of companies to conduct effective internal investigations into corporate misconduct, and to encourage “excessive” civil suits by shareholders. “This policy has the potential for abuse and intimidation even when it’s not being implemented in an abusive way,” says Theodore Olson, a former solicitor general, who is a co-author of the letter. In response to the letter, a Justice Department spokeswoman issued a statement disagreeing with the criticisms. “The memorandum’s guidance is triggered only after prosecutors have determined that a company can be indicted for criminal activity,” the statement said. “Rather than �demand’ or �require’ a corporation’s waiver of attorney-client privilege, a corporation may decide to waive its privilege in the course of cooperating with the government’s investigation to avoid being criminally charged.” Criticisms of the policies spelled out in the memo have come from a number of diverse interest groups, including the U.S. Chamber of Commerce, the American Civil Liberties Union, the American Bar Association, and the Association of Corporate Counsel. The Senate Judiciary Committee is tentatively slated to conduct a hearing on the Thompson memo next week. The policies outlined in the memo have also come under scrutiny in the courts. Earlier this summer a federal judge in New York ruled that federal prosecutors had exerted undue pressure on accounting firm KPMG in order to force it to cut off legal fees to former executives under indictment. That ruling has emboldened other companies under investigation, such as AOL, to take a more assertive stance in Justice Department probes. Nearly all of the letter’s signatories are now partners at large corporate law firms that defend companies and executives who have felt the sting of the Bush administration’s current campaign against corporate misconduct. J ason McLure can be contacted at [email protected]

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