Beverley Lumpkin: Halls of Justice

W A S H I N G T O N, Feb. 9, 2002 -- After years of watching steadily increasing Justice Department budgets, it was quite a surprise to see one that was essentially flat (factoring in the post 9/11 supplement, there was actually a drop from the last fiscal year).

But the real shock was to see funds transferred from Justice to the Federal Emergency Management Agency for domestic preparedness. In Washington, the bureaucratic imperative demands more resources, more troops, more funds, to prove one's mission is essential. (This is why Homeland Security chief Tom Ridge is having such trouble; it echoes various drug czars' frustrations — with no money or troops you're powerless.)

Losing $234.5 million to another agency ain't beanball and some are wondering how and why Attorney General John Ashcroft let that happen. One Capitol Hill staffer was "pretty amazed," noting, "There's a whole new set of issues and they've taken Justice out of it."

A former top Justice official was also surprised to see the Bureau of Prisons' budget for FY03. He noted that for the last several years, with prison population projections going through the roof, Justice had been adding essentially a new penitentiary each year. Now all they're doing is activating or expanding.

"Something's radically changed here," he said.

He asserted that federal prisons had been 50 percent over capacity and there had been plans to cut that overcrowding by half over five years. Especially with the increased prosecutions of gun and drug crimes that Ashcroft has been promising, the population is unlikely to decline.

Budget officials, through public affairs, responded they are "aware that BOP facilities are overcrowded, operating at 31 percent over capacity system-wide. Medium- and high-security facilities are even higher, including 58 percent overcrowding at medium security facilities … The president's FY 2003 budget request has balanced the funding of this challenge with that of his other top priorities, such as counterterrorism."

It was also somewhat surprising that the budget — at least to my non-green-eyeshaded eyes — does not appear to reflect Ashcroft's grand new vision of Justice, first announced during his "restructuring" speech last November, when he said 10 percent of total resources would be shifted from headquarters to the field to fight terrorism.

It may simply be that by then the budget process was too far along to be able to reflect these changes, but it does seem a bit counterintuitive, given the daily mantra we've been fed post-9/11 of Justice's changed mission to placing counterterrorism above all else. At this writing no one has been able to explain this to me.

Charging Corporations

As Legal Times reported this week, a June 1999 memo sent to all Justice prosecutors by then-Deputy Attorney General Eric Holder set forth the rationale for charging a corporate entity with a crime.

The general principle enunciated was: "Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment." This memo, which according to spokesman Bryan Sierra is still in effect, not having been superseded by any other policy statement, could have major implications for the Enron investigation.

You can also see its principles at work in the recent indictment of Tyson Foods, along with several current and former officials, in an immigrant-smuggling scheme.

According to former Justice officials, the Holder memo actually had its genesis in a conference held by his predecessor, Jamie Gorelick. She had convened a meeting of Justice and FBI officials, high-level in-house corporate counsel, and top members of the defense bar, to discuss white-collar crime issues. Several of the outside attorneys complained that whereas standards for prosecuting individuals were well spelled out, they didn't know what they were for corporate entities.

So a task force was formed and (as usual in these endeavors) took a couple of years to hammer out the policy. As one official who was involved recalls, "it was a looooooong drawn-out process." Participants included several U.S. attorneys' offices, especially the Southern District of New York, and all the Justice divisions that handle criminal cases, coordinated by the Fraud section of Crim.

Highlights of the 15-page memo from Holder, dated June 16, 1999:

There can be important public benefits from indicting corporations that have engaged in wrongdoing. The government can be a powerful force for change in corporate culture. Such an indictment can also serve as a strong deterrent to other corporations.

But prosecuting a corporation is not a substitute for charging culpable individuals.

Prosecutors must consider a number of factors in deciding whether to charge the corporation, including: the nature and seriousness of the conduct; the risk of harm to the public; the corporation's history of similar conduct; any remedial actions, etc. But one of the most significant is the pervasiveness of wrongdoing within the corporation.

"Charging a corporation for even minor misconduct may be appropriate where the wrongdoing was pervasive and was undertaken by a large number of employees or by all the employees in a particular role within the corporation. …"

"Of these factors, the most important is the role of management."

Corporate history also matters: "A history of similar conduct may be probative of a corporate culture that encouraged, or at least condoned, such conduct, regardless of any compliance programs."

"[T]he balance may tip in favor of prosecuting corporations in situations where the scope of the misconduct in a case is widespread and sustained within a corporate division (or spread throughout pockets of the corporate organization)."

An official who spent a lot of time developing the policy said that one provision of it was hated by the corporate and defense counsel. That's the section that said in assessing a corporation's cooperation with the government, it might be appropriate to require the company to waive attorney-client and work-product privilege.

But that was something the Southern District of New York had particularly wanted. The memo notes that "[s]uch waivers permit the government to obtain statements of possible witnesses, subjects, and targets, without having to negotiate individual cooperation or immunity agreements." In a small bone tossed to defense counsel, it adds that willingness to waive the privileges should be considered "only one factor in evaluating the corporation's cooperation."

Halls of Justice Mailbag

The letters just keep coming in on my report about Justice's decision to cover up a statue of a semi-nude figure representing the Spirit of Justice in the Great Hall.

Why do you have a vendetta against John Ashcroft? Covering the DOJ, you must be aware of the story that AIDES of Ashcroft decided to cover up the statue? Also that the greatly increased attendance at new conferences predicated a different (larger)press conference area? Beverly [sic] may not offer her opinion on DOJ investigations, but she certainly makes known her opinion of the head of the DOJ. Finally, where were you during the reign of Janet Reno and her dereliction of duty?

— M. Schlosser

I am glad Mr. Ashcroft covered the statues. He didn't take them down or destroy them as the Taliban would have done. He didn't even have them moved to another location. He left them as they were with the only change being one that could easily be reversed. How many times have there been press conferences in front of "art" or other backdrops? Too many to number, right? But how many of those press conferences have you seen the press go out of their way to cut the person giving the press conference all but out of the picture in order to photograph the background? Not very often. The times when it has been done there has usually been some purpose (such as Ground Zero where it was necessary to give the audience a perspective of the scale and magnitude of the situation). In the case of Minnie Lou, photographers were treating press conferences as an opportunity to use a statue of a woman's breasts to mock a conservative Christian man, those who work with him, and their policies. As a woman, I find that offensive. I think the people who should be criticized are the photographers who exploited the female form for their own political purposes. I commend Ashcroft for his move — it was a response to a situation that was getting ridiculously out of control, not as a personal quest to force the American people to live his standards (as some people are making it out to be). As soon as the photographers get over their need to photograph breasts instead of the news, the drapes can easily be taken down. Way to go Ashcroft!

— All for Modesty

Seems like your article was a little one sided posting mail trashing Ashcroft and his dept. I think it's a little silly to drape the statues but when the press photographs his as they did … image is important. The other time mentioned was when Ed M. was photoed uder the same statue when intro-ing his anti-porn initiative. And jeez, comparing him to the nazi's and taliban. Get real! Take a chill pill.

— Willie

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.