White Collar Crime Profs Blog has this post in which Arlen Specter says he will pursue legislation aimed at the now-infamous Thompson Memo. The basic idea will be to prevent the DOJ from treating an entity as uncooperative (or less cooperative than it should be) because the entity either refuses to waive privilege or pays attorney's fees for entity constituents.
I think this is half right. Justice should be allowed to treat an entity as uncooperative if it does things that make it harder to get the facts relevant to some allegation. Privilege waivers will tend to increase the accuracy of fact-finding, so Justice should be allowed to take them into account, and to treat entities that refuse to waive as uncooperative or less cooperative than they should be.
Payment of fees, on the other hand, will tend to make for a fairer fight, even if that makes things harder for the Justice Department. Entities therefore should be allowed to pay the fees of investigated or indicted constituents without suffering any penalty (including the opportunity cost of a good deal that otherwise would have beeen offered) for doing so.
DM