Corporate America had its first glimpse into the Obama Administration’s thinking yesterday with the news that Eric Holder, a partner at the law firm of Covington and Burling, will be nominated to be our next attorney general. Sure, we’re still in the rumor phase of this news, but the Obama team hasn’t made any mistakes yet and isn’t going to bungle its first Cabinet announcement now. This guy is in.
The appointment is a telling one for compliance executives. Holder spent his early years as a federal prosecutor, U.S. attorney, and judge in Washington, D.C. In the Clinton Administration, he rose to be deputy attorney general (that is, No. 2 in the Justice Department under Attorney General Janet Reno), overseeing all the department’s litigation and enforcement matters. Holder has also been a high-level adviser to the Obama campaign. Regardless of your particular political views, you have to admit that he has the chops to be attorney general under a President Obama.
Of real import to us, however, is what Holder did while working at the Justice Department in the 1990s: He drafted the “Holder Memo” on the criminal prosecution of corporations—the Justice Department’s first-ever attempt to articulate how it evaluated a company’s cooperation in a criminal investigation.
Many would say the department has been trying to do a better job of that ever since. The Holder Memo (1999) begat the Thompson Memo (2003), which begat the McNulty Memo (2006), which begat the Filip Memo in place today. Each memo has successively tried to weaken what general counsels hate the most: the concept that waiving attorney-client and work-product privilege is necessary to be deemed “cooperative” and avoid prosecution. (The Filip Memo isn’t even a memo, but a series of revisions to the Principles of Federal Prosecution of Business Organizations that U.S. attorneys use.)
Like all good former Justice Department officials now in private practice, Holder insists that he never intended the waiver provision to metastasize into what it is today. For the sake of argument, however, we’ve dug up the relevant original text:
In determining whether to charge a corporation, the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate with the government’s investigation may be relevant factors. In gauging the extent of the corporation’s cooperation the prosecutor may consider the corporation’s willingness to … disclose complete results of its internal investigation, and to waive the attorney-client and work-product privileges.
What does that language really mean? I have no idea, and neither do you. But the important thing for compliance officers is that Holder does know what it means; he wrote it. Presumably he’ll abide by the current practices of the Filip Memo (at least, until some other deputy attorney general pens yet another memo in the future) which dictate that any request to waive privilege be approved by some high-level official in the Justice Department. Holder will be able to tell his deputies and U.S. attorneys exactly what he expects for waiver requests—and while Corporate America might not like what he communicates, at least we should have clarity. That would be better than what we have now.