DOJ Pressure to Cut Loose Employees Under Investigation

The recommendation is accompanied by a 'report' presenting reasons in support of the recommendation. Most of the reasons are couched in terms of the rights and legitimate interests of organizations and their employees. This article provides additional discussion of the four factors.

In our society, the presumption of innocence is not merely a rule that allocates the burden of proof at a criminal trial. It is also a rule about social status. With limited exceptions (e.g., a pre-indictment arrest or search warrant), the government is not to treat a person as a criminal unless and until he or she has formally been adjudicated guilty. What is especially offensive about the Justice Department's Thompson Memorandum, against which the ABA recommendation is particularly directed, is that it guides prosecutors to violate the presumption of innocence. It does so by telling them to use the power they have over organizations they are investigating to induce those organizations to cut off unconvicted and, indeed, uncharged individuals whom the prosecutors believe are 'culpable' from the customary assistance they otherwise would receive from their present or former organizational employers. The Memorandum thereby not only leads to violation of certain constitutional rights relating to the criminal process, as held by Judge Kaplan in United States v. Stein, 440 F. Supp.2d 315 (S.D.N.Y. 2006) and 435 F. Supp. 2d 330 (S.D.N.Y. 2006), but also ' because the presumption of innocence applies and no present or future crime is intended ' arguably violates the First Amendment freedom of organizations and their present or former employees to associate in various ways for the purpose of dealing with the government.