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Monthly Archives: November 2007

Buffett: Keep inheritance tax – I have enough money!

Billionaire Warren Buffett, an outspoken critic of the move to abolish or reduce the inheritance tax, told lawmakers yesterday that rich guys like him can afford it.

“I think we need to … take a little more out of the hides of guys like me,” Buffett told members of the Senate Finance Committee during a hearing yesterday.

Currently estates of more than $2 million are hit with a 45 percent tax. Supporters of the plan say it is a cruelly burdensome hit on beneficiaries, and unfairly re-taxes assets.

“There is something fundamentally wrong when the government swoops in after a funeral to take a cut of what that person had worked their whole life for, and has already paid taxes on at least once,” said Sen. Chuck Grassley, R-Iowa, at the hearing according to the Associated Press.

Passage of attorney-client privilege bill stirs debate

The struggle between the Justice Department’s desire to aggressively prosecute perpetrators of corporate fraud and civil liberties and attorneys groups’ desire to protect the attorney-client privilege heated up this week after the House passed the “Attorney-Client Privilege Protection Act of 2007” Tuesday. (H.R. 3013)

Though the Senate version of the bill appears to be stalled, proponents and opponents sounded off this week on the legislation, which was filed in response to the so-called “McNulty Memorandum” issued by the U.S. Department of Justice in December 2006.
The memo, named after Deputy Attorney General Paul McNulty, permits prosecutors to press corporate criminal defendants to waive the attorney-client privilege in exchange for avoiding some criminal charges.

While the Justice Department has maintained that the attorney-client privilege was only applicable in limited circumstances, civil liberties groups and bar associations have vocally criticized the policy, saying it amounts to government coercion. The bill would prohibit prosecutors from pushing for such waivers.

Officials at the Justice Department were not pleased that the bill passed.

“As presently written, this legislation threatens to undermine the impressive gains the government has made to restore investor confidence and shareholder well-being after high-profile corporate scandals, such as Enron, Adelphia, WorldCom, and Qwest,” Justice Department spokesman Peter Carr said in a statement.

Others lauded the measure.

“This is an issue of correcting errant prosecutorial behavior,” said Association of Corporate Counsel Senior Vice President and General Counsel Susan Hackett. “There are lots of laws on the books to outlaw corporate crime and the government has the power to enforce them; this bill is needed to forbid abusive government practices that strip those targeted by a government investigation of their rights to confidential counsel. It further provides them with the power to make the government abide by long-established and respected rules and rights afforded to all by the justice system.”

A statement by the Coalition to Preserve the Attorney Client Privilege, which is made up of a number of groups including the ACLU, National Association of Criminal Defense Lawyers and Lawyers for Civil Justice, said in part: “The Attorney-Client Privilege Protection Act of 2007 is a carefully crafted and judicious tool that is designed solely to address prosecutorial and enforcement practices that have cropped up in the last decade and does not in any way amend the application of privilege rights or law, or impede government investigations into corporate wrongdoing.”

NACDL President Carmen D. Hernandez issued her own statement, saying: “An overwhelming majority of Members of the House of Representatives have voted to stop Justice Department abuses of power and force federal prosecutors to simply follow rules that will no longer place untenable pressure on companies and employees to waive basic constitutional rights guaranteed to every person targeted in government investigations.”

Gonzales a no-show at Mukasey swearing-in fete

It’s official: Michael Mukasey is our nation’s top lawyer.

Technically, he’s been in that role since Friday, when he was quietly sworn in. But today he had a public ceremony, with all the pomp and circumstance that goes with.

On hand for the occasion was, of course, President George W. Bush, U.S. Chief Justice John G. Roberts, Jr., who swore in Mukasey, and former attorneys general John Ashcroft and Dick Thornburgh. Conspicuously absent: Mukasey’s predecessor, Alberto Gonzales.

But Bush had kind words for the former attorney general, who resigned after nearly a year of turbulence in the Justice Department caused by scandals over the firings of U.S. attorneys and allegations of politically-motivated prosecutorial decision making.

“As our new Attorney General, Michael Mukasey follows in the footsteps of a fine man and a fine American: Al Gonzales,” Bush said to applause. “I have known Al since our days working together in the State of Texas. As White House Counsel and as Attorney General in my administration, Al Gonzales worked tirelessly to make this country safer and to ensure that all Americans received equal justice before the law. Over many years, I have witnessed his integrity, his decency, and his deep dedication to the cause of justice. I am grateful for his friendship. I thank him for his service to our nation. And Laura and I wish him, and his wife Becky, and their children, Jared, Graham, and Gabe, all the very best.”

See the full text of the president’s remarks here on the White House’s website. More on the ceremony here from the Associated Press.

Hot debate on proposed cut in crack sentences

Officials from the Justice Department are unhappy with a proposal by the U.S. Sentencing Commission that would allow nearly 20,000 inmates incarcerated on crack cocaine convictions to apply for an earlier release date. The move could free as many as 2,000 people by the end of the year, according to some Justice Department estimates.

Speaking at a hearing yesterday, Charlotte, N.C.-based U.S. Attorney Gretchen C.F. Shappert blasted the plan, saying the harm to neighborhoods struggling to overcome drug-fueled crime “will be swift, it will be sudden and, in my opinion, irreversible,” according to the Associated Press.

“My concern is about the future and about the unforeseen consequences of releasing such large numbers of convicted drug offenders into vulnerable communities in a relatively short period of time,” Shappert said, according to an account in The Washington Post.

But not all the commissioners were swayed by Shappert’s comments.

According to the Post, commissioner Beryl A. Howell said he was troubled by a Nov. 1 Justice Department letter submitted to the commission that claimed the move would means tens of thousand inmates would be freed early.

“The retroactive application of the crack amendment alone would require new sentences in approximately 20,000 cases, equivalent to more than 25 % of all federal sentencings in 2006 and approximately the same as all of the crack sentences imposed during FY
2003, 2004, 2005 and 2006 combined,” the letter stated. (See the letter, a PDF file, on the Commission’s website here).

“That is totally wrong,” Howell told Shappert, adding that many of those who request early release would be denied, particularly if they had been violent offenders.

The commission meets today, but a vote on the retroactive sentencing guideline changes is unlikely today, and could come as late as January. Earlier this month new prospective sentencing guidelines were implemented cutting the sentences for crack cocaine offenses in an effort to cut the disparity in sentences between cases of crack and powder cocaine possession.

Written public comments on the retroactive proposal can be found here on the Commission’s website.

Court to decide value of a paralegal

Most Supreme Court watchers are a bit disappointed this morning since the High Court did not yet decide whether to take up the Washington D.C. handgun ban appeal in the two related cases District of Columbia v. Heller, No. 07-290, and Parker v. District of Columbia. No. 07-335.

Instead the Court announced its decision to take up a case involving the value of a paralegal – at least as far as the Equal Access to Justice Act is concerned.

In Richlin Security Service Co. v. Chertoff, No. 06-1717, the Court will consider whether a prevailing party under the Act may recover attorney fees for paralegal services at the market rate for such services, or at cost only. The Circuits are split on the issue, with four Courts of Appeal holding that that the measure is market rate, and the Federal Circuit holding that the award should only be for cost.

You can see the petition for certiorari here [PDF], and the reply brief here [also PDF], care of Public Citizen.

Panel ponders mass cut in prison sentences

The U.S. Sentencing Commission is considering a ruling that would retroactively cut the sentences of nearly 20,000 inmates in federal prisons, a move that could allow more than 2,000 prisoners to be released within a year.

The commission already reduced the sentencing guidelines for crack cocaine possession offenders by about 10 percent amid pressure from civil rights and inmate advocacy groups who say the tougher standards for crack cocaine, as compared to the powder form of the drug, has a disproportionately harsh effect on people of color. Those guideline changes went into effect Nov. 1, and are prospective in nature.

Now the commission, faced with the same pressure, is considering a retroactive change that could spur the largest mass commutation in the panel’s 20-year history, according to The Los Angeles Times.

Currently the U.S. Supreme Court is already considering much discretion trial courts have to order penalties outside of the federal guidelines in two pending cases: Gall v. U.S. and Kimbrough v. U.S.

Monday status conference: Veteran’s Day edition

In honor of Veteran’s Day, the Supreme Court and Congress are not in session today.


Whether the Supreme Court will take up Washington DC’s gun ban is anybody’s guess, but a decision could come as early as tomorrow. (AP)

As Michael Mukasey recovers from the confirmation process and settles into his new job as attorney general, his predecessor is pulling in $40,000 per appearance on the lecture circuit. (Independent Florida Alligator)

The American Bar Association has planned a march here in Washington Wednesday in support of protesting lawyers in Pakistan. (ABA Journal)

As the fallout from the subprime mortgage mess hits Wall Street and worldwide financial markets hard, investors await word about whether things will get worse. (CNNMoney)

Conservative legal minds, including the four right-leaning Supreme Court justices, will converge in Washington later this week for the Federalist Society’s 25th anniversary bash. (WaPo)

Arnold to EPA: I said ‘I’d be baahck’ – with a lawsuit

Saying that he’s tired of waiting for the Environmental Protection Agency to rule on a waiver request for California’s greenhouse gas emissions regulations for cars and automobiles – the toughest state standards to date – Gov. Arnold Schwarzenegger filed a lawsuit on behalf of the state against the agency in the U.S. District Court for the District of Columbia.

In the suit, joined by 14 other states seeking to impose the same standards as the Golden State, California alleges that the EPA has dragged its feet in granting the state a waiver so it can impose stricter greenhouse gas rules on cars and light trucks.

“Our air quality, our health and our environment are too important to delay any longer, and it is not just the people of California who are waiting,” Schwarzenegger said. “Those states that want to follow our lead cannot do so until federal permission is granted.” (For a video of Schwarzenegger’s comments – because the quotes are so much better with the accent – see California’s multimedia press release).

Schwarzenegger had put EPA on notice six months ago – after the U.S. Supreme Court’s ruling in Massachusetts v. EPA [PDF file] – that a lawsuit would be filed if the agency failed to act in a timely fashion.

More on the lawsuit, including links to the complaint, the Federal Clean Air Act standards and more, can be found on Jurist.

Friday morning docket

THE SUPREMES: The justices of the Supreme Court will do all of their work inside chambers today and next week. Today they meet in conference, and they have one non-argument session next week. There will be no oral arguments until Nov. 26.


What do you call an attorney general nominee who receives the lowest level of congressional support for confirmation in 50 years? Attorney General. (WaPo).

Fed Chairman Ben Bernanke told congress that the subprime mortgage mess spells economic slowdown. Just in time for the holiday season! (WaPo).

Words that will excite almost any lawyer: Free PACER! (WSJ Law Blog)

No override-free presidency for you, Mr. President (AP).

Don’t think the controversy over the nine fired U.S. attorneys is over: contempt charges against Harriet Miers and Joshua Bolton may be coming soon. (White Collar Crime Blog).

O’Connor: Judges shouldn’t be partisan politicians

Retired Supreme Court Justice Sandra Day O’Connor isn’t letting a little hip ailment keep her from extolling the virtues of judicial independence.

At an event yesterday hosted by the non-partisan Constitution Project examining the legacy of the effective assistance of counsel standard established by the Court in Strickland v. Washington, O’Connor, who was on crutches, said judges should not be elected.

The election process, with its partisanship and growing fundraising burdens, puts a political spin on the judicial selection process that goes against the goal of putting the best judges on the bench, O’Connor told the crowd at the Law Library of Congress.

“If I could wave a magic wand … I would wave it to secure some kind of merit selection of judges across the country,” O’Connor said.

She also praised the British system under which prosecutors also serve as defense attorneys. “We see a level of courtesy we don’t see in our country,” O’Connor explained. “They realize there are problems in both areas.” She said lawyers appointed to defend poor defendants should also be paid comparably to prosecutors.

O’Connor arrived at the event in a wheelchair, and used crutches to take the podium to speak. A court official said O’Connor was recovering from a temporary hip condition, according to the Associated Press.