Legal News

On McNulty Memo, Specter Fires Back at DOJ

By Dan Slater

Being Beltway-outsiders, we probably get a little more excited than we should over Capitol Hill showdowns between Justice and the lawmakers. So be it.

For starters, there’s former White House adviser Karl Rove defying a congressional subpoena and refusing to testify about allegations of political pressure at the DOJ. According to the AP, Rove had been scheduled to appear at a House Judiciary subcommittee hearing yesterday morning. A placard with his name sat in front of an empty chair at the witness table, with a handful of protesters behind it calling for Rove’s arrest. A decision on whether to pursue contempt charges now goes to the full Judiciary Committee and ultimately to House Speaker Nancy Pelosi.

That’s thrilling stuff, but we think the following is a bit more interesting: Yesterday, Sen. Arlen Specter sent (R-PA), the ranking member of the Senate Judiciary Committee, returned the DOJ’s fire with a stern calling card of his own. On Wednesday, if you recall, Fearless Leader Mukasey told the committee that DOJ intended to address “real significant proposed changes” to the oft-derided McNulty Memo. “In particular,” said Mukasey, “we will no longer measure cooperation by waiver of the attorney-client privilege.”

In a letter, Mukasey’s deputy, Mark Filip (McNulty’s DOJ successor), memorialized some of these “real significant proposed changes” to McNulty, one of which provides that, in evaluating a company’s cooperation, prosecutors wouldn’t be allowed to consider whether a company is paying legal fees of employees under investigation.

Sen. Arlen Specter, R-Pa., ranking Republican on the Senate Judiciary Committee, asks a question of AG Mukasey during the committee

But Specter apparently isn’t buying it. In response to Filip, he sent a letter that included the following passage: “I am concerned about the delay in enacting legislation while the Department of Justice is continuing to act under the McNulty Memorandum with individuals incurring enormous attorneys’ fees including appellate litigation. . . In the context of these lengthy delays and the potential prejudice which is involved in these matters, I think it is too much to ask for the legislative process to await a written revision of McNulty and then await a review of the implementation of a new memorandum for a ‘reasonable amount of time’ which could be very long.”

Specter cites the “illustratively” high legal fees cited by SDNY Judge Kaplan in U.S. v. Stein — a/k/a KPMG — “who said that the litigation costs among the individual defendants had already averaged $1.7 million.” Specter wrote: “I would be interested to know what is happening in the other cases, besides KPMG, which involve this issue and what kind of expenditures have been required of individuals who have been subjected to the implementation of the Thompson/ McNulty memoranda.”

Full post as published by Law Blog - WSJ.com on July 11, 2008 (boomark / email).