emptywheel

In the olden days, back in the early 2000s, the DOJ could demand that companies waive attorney-client privilege as part of cooperation. Seems fair to me: You want to be cooperative? Let us see what you did. You don’t want to cooperate? Ok, take your chances.

Corporations and the defense bar went bananas. Through the 2000s, they fought this. They lobbied Congress. The US Chamber of Commerce joined with… the ACLU to battle this. Strange bedfellows.

Corporations said they were being coerced. They said the government was trammeling on the sacred attorney-client privilege.

Sidenote: Attorney-client privilege is not a Constitutional right. It’s a rule of evidence that predates the American legal system. A bedrock principle, to be sure, but not a right.

Sidenote 2: One of the most zealous defenders of corporations in this fight was… Andrew Weissmann. (https://www.thecorporatecounsel.net/blog/2007/09/senate-judiciary-committee-hears-testimony-on-attorney-client-privilege.html …) He is now Mueller’s number two. So he knows from privilege.

Unsurprisingly, corporations exaggerated. They never pointed to any serious abuses of attorney-client privilege.

Nonetheless, corps won. The Senate prepared to pass a law reining in the DOJ. The DOJ caved. In policy changes during the mid-aughts, they rolled back their own power. Now prosecutors are prevented from even hinting to companies that they would like them to waive privilege.