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Federal Erosion of Business Civil Liberties Second Edition 2010 “What is astonishing is that the attorney-client privilege, one of the foundational rights on which rests Anglo-American legal culture . should now be under siege. The two federal agencies that have been most SPECIAL REPORT: vigorous in seeking waiver of the attorney-client privilege Federal Erosion have been the Department of Justice and — unfortunately, I of Business must say — the Securities and Civil Liberties Exchange Commission.” Paul S. Atkins Second Edition 2010 SEC Commissioner Introduction by The Honorable Dick Thornburgh Chairman, WLF Legal Policy Advisory Board “Businesses may be the immediate victims of overcriminalization — e.g., Arthur Andersen — but the long-term victims are everyday people who lose jobs or pay more for goods and services because of the costs exacted WLF by overzealous corporate Washington Legal Foundation prosecution.” Advocate for freedom and justice© 2009 Massachusetts Avenue, NW Eric Grannon Washington, DC 20036 White & Case LLP www.wlf.org SPECIAL REPORT: Federal Erosion of Business Civil Liberties Second Edition 2010 Introduction by The Honorable Dick Thornburgh Chairman, WLF Legal Policy Advisory Board Edited by Cory L. Andrews, Senior Litigator Washington Legal Foundation Updated and revised with the pro bono assistance of Eric Grannon, Daniel Levin, and George J. Terwilliger III of White & Case LLP We acknowledge and are grateful for the pro bono contributions made by Mika Ikeda and Benjamin Kwak, associates at White & Case LLP. This Report, along with WLF’s Timeline: Federal Erosion of Business Civil Liberties, is a part of our ongoing Criminalization of Free Enterprise-Business Civil Liberties Program. For more information on this program or to receive additional copies of this Report or the Timeline, please contact WLF at (202) 588-0302 or visit us online at www.wlf.org. Copyright © 2010 Washington Legal Foundation Library of Congress Catalog Card Number 2010920666 TABLE OF CONTENTS Introduction: The Honorable Dick Thornburgh………………………………ii Chapter One: Mens Rea, Public Welfare Offenses, and the Responsible Corporate Officer Doctrine…………………………..……….1-1 Chapter Two: Environmental Protection Agency Criminal Enforcement Policies……………………………………………………….....2-1 Chapter Three: Department of Justice Criminal Prosecution Policies….……3-1 Chapter Four: Parallel Civil and Criminal Prosecutions………………….…4-1 Chapter Five: Attorney-Client and Work Product Privileges………………5-1 Chapter Six: Deferred Prosecution and Non-Prosecution Agreements…...6-1 Chapter Seven: U.S. Sentencing Guidelines.................................................…...7-1 Appendix: Reference Resources: Washington Legal Foundation Legal Studies Publications and Programs...………………....A-1 INTRODUCTION By The Honorable Dick Thornburgh This revised and updated edition of the Washington Legal Foundation’s SPECIAL REPORT: FEDERAL EROSION OF BUSINESS CIVIL LIBERTIES arrives on the scene at a pivotal time when the problem of “overcriminalization” is garnering increased national attention. It is becoming increasingly clear that prosecutorial overreaching can imperil personal liberties and undermine the purposes of our criminal law. Following the publication of the REPORT’S first edition, the House Judiciary subcom- mittee on crime held a hearing in the summer of 2009. Adding their voices to a growing number of observers who worry about the overreach of the federal government, Chairman Robert C. Scott and ranking member Louie Gohmert organized the unprecedented hearing to address the rapid and arbitrary expansion of federal criminal law. Invited to testify before the subcommittee, I explained how, in so many respects, the American criminal justice system has increasingly lost its way. Only when conduct is sufficiently wrongful and severe, and the parameters of unlawful conduct are easily un- derstood, should the government resort to the stigma, public condemnation, and potential deprivation of liberty that go along with the criminal sanction. Those of us concerned about this subject share a common goal—to have criminal statutes that punish actual criminal acts and that do not seek to criminalize conduct that is better and more fairly dealt with by the use of civil and regulatory remedies. And that, in a nutshell, is the central message of this REPORT. The problem of overcriminalization is truly one of those issues on which a wide variety of constituencies can agree. In November 2009, the New York Times ran a front-page story about the important collaborative criminal justice reform and educational efforts that WLF and many other organizations spanning the political spectrum are engaged in to raise public awareness of overcriminalization. This REPORT, which includes many compelling case studies, makes a crucial contribution to that larger effort. Like its successful predecessor, WLF’s revised and updated REPORT provides the legal community with an excellent summary, analysis, and critique of the key legal, judicial, and regulatory developments in the disturbing trend to criminalize normal business activi- ties. Ideal for reference by corporate counsel, white-collar defense attorneys, and the larger legal and public policy community, the REPORT traces the development of overcriminalization in the following areas divided into seven chapters: (1) Mens Rea, Public Welfare Offenses, and the Responsible Corporate Officer Doctrine; (2) EPA Criminal Enforcement Policies; (3) DOJ Criminal Prosecution Policies; (4) Parallel Civil and Criminal Prosecutions; (5) Attorney-Client and Work Product Privileges; (6) Deferred Prosecution and Non-Prosecu- tion Agreements; and (7) the U.S. Sentencing Guidelines. One important theme of the REPORT is that the DOJ and EPA, in particular, have too often resorted to criminal prosecution of minor regulatory offenses when administrative or other civil remedies would be more appropriate. Illustrative of this trend, the REPORT offers several compelling case studies that call into question the selection criteria used by the DOJ and EPA, which call to mind former Attorney General Robert Jackson’s famous admonition to all U.S. Attorneys that “the prosecutor has more control over life, liberty, and reputation than any other person in America.” Of particular interest is Chapter Five on the Attorney- Client Privilege, which discusses the concerted assault by the DOJ, SEC, and other federal agencies on that venerable privilege, but also highlights some recent successes that are help- ing to counter its continued erosion. Each of us owes the Washington Legal Foundation our sincere gratitude for produc- ing this indispensable REPORT, which should be required reading for private and government lawyers alike, as well as for publishing a companion TIMELINE fold-out chart that chronicles and highlights the key events and cases described herein. _____________________ The Honorable Dick Thornburgh served as Governor of Pennsylvania, Attorney General of the United States and Under-Secretary-General of the United Nations during a public career that spanned over 25 years. Mr. Thornburgh is currently Counsel to the in- ternational law firm K&L Gates LLP in its Washington, D.C. office and is Chairman of the Washington Legal Foundation’s Legal Policy Advisory Board. WLF is deeply grateful for the valuable counsel, guidance, and encouragement it has received from the Honorable Dick Thornburgh, Chairman of our Legal Policy Advisory Board. He has been a tireless leader in protecting free enterprise and business civil liberties from the increased dangers of overcriminalization. Chapter One: Mens Rea, Public Welfare Offenses, and the Responsible Corporate Officer Doctrine Chapter One MENS REA, PUBLIC WELFARE OFFENSES, AND THE RESPONSIBLE CORPORATE OFFICER DOCTRINE “You cannot punish corporations. If you dissolve the offending corporation. .[y]ou merely drive what you are seeking to check into other forms or temporarily disorganize some important business altogether, to the infinite loss of thousands of entirely innocent persons, and to the great inconvenience of society as a whole.” Woodrow Wilson Address to the Annual ABA Meeting (1910) ens Rea. Historically, Anglo- services — suddenly became subject to a M American jurisprudence has required vast array of complex laws and regulations. the government to prove that a criminal By 1900, there were approximately only 165 defendant has performed both a wrongful act federal criminal laws on the books. By (“actus rea”) combined with a wrongful 1970, the number increased more than ten- intent (“mens rea”), or “an evil-doing hand” fold to approximately 2,000. In 1998, an and “an evil-meaning mind.” See Morissette American Bar Association task force chaired v. United States, 342 U.S. 246, 251 (1952). by former Attorney General Edwin Meese The Supreme Court has described this III, issued a report, The Federalization of requirement as being “as universal and Criminal Law, which estimated the number persistent in mature systems of law as belief of federal criminal statutes to be 3,300. By in freedom of the human will.” Id. at 250. 2007, there were at least 4,450 separate Prosecutors are also often required to prove criminal offenses scattered throughout the that a defendant had the specific intent or United States Code. John S. Baker, Jr., purpose to commit a crime that is inherently Revisiting the Explosive Growth of Federal evil or wrongful (also known as malum in Crimes, in 26 LEGAL MEMORANDUM 1, 5 se) such as robbery or assault. Society has (2008). As one commentator aptly traditionally dealt with
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