August 16, 2005
By R. Larson Frisby
Four separate comment letters were filed with the U.S. Sentencing Commission on 8/16/2005 in connection with its recent decision to add the privilege waiver issue to the list of tentative priorities for the 2005-2006 Sentencing Guidelines amendment cycle. In particular, the comment letters include the following:
- Comment letter signed by nine former senior Justice Department officials (i.e., former Attorneys General Griffin Bell, Ed Meese, and Dick Thornburgh, former Acting Attorney General Stuart Gerson, former Deputy Attorneys General Carol Dinkins and George Terwilliger, and former Solicitors General Ted Olson, Ken Starr, and Seth Waxman);
- Comment letter submitted by our informal Coalition on the Privilege Waiver Amendment to the Federal Sentencing Guidelines (signed by the American Chemistry Council, the American Civil Liberties Union, the Association of Corporate Counsel, Business Civil Liberties, Inc., the Business Roundtable, the Financial Services Roundtable, Frontiers of Freedom, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, the National Defense Industrial Association, the Retail Industry Leaders Association, the U.S. Chamber of Commerce, and the Washington Legal Foundation);
- Comment letter submitted by Rep. Dan Lungren (R-CA), who sits on the House Judiciary Committee and its Subcommittee on Crime, Terrorism and Homeland Security; and
- Comment letter of the American Bar Association.
I would like to thank everyone in the Coalition for your assistance and input during the preparation of these various comment letters. In addition, I would like to specially thank Paul Rosenzweig of the Heritage Foundation, Steve Bronis of Zuckerman Spaeder LLP (representing the ABA Criminal Justice Section), Stephanie Martz of the NACDL, Susan Hackett of the Association of Corporate Counsel, Allan Van Fleet of Vinson & Elkins LLP (representing the ABA Antitrust Section), Jamie Conrad of the American Chemistry Council, Tom Susman of Ropes & Gray LLP (representing the ABA Administrative Law Section), Steve Saltzburg of George Washington University (representing the ABA Criminal Justice Section), and Pete Moser of Piper Rudnick Gray Cary LLP (representing the ABA Business Law Section) for helping to recruit the nine former senior DOJ officials to sign the first comment letter listed above.
I would also like to thank Warren Belmar of Capitol Counsel Group LLC (representing the ABA Administrative Law Section) for helping the coalition to persuade Rep. Lungren to send the third comment letter referenced above.
I am hopeful that these four comment letters will help convince the Sentencing Commission to retain the privilege waiver issue on its final list of priority issues for the 2005-06 amendment cycle, and at the end of that process, to amend the Guidelines Commentary to clarify that waiver of attorney-client privilege and work product protections should not be a factor in determining whether a sentencing reduction is warranted for cooperation with the government.
If you have any questions regarding any of these comment letters, please let me know. Otherwise, we will keep you apprised of further developments.