Never Too Late?

By: Cydney Posner

As widely anticipated, the Supreme Court this morning unanimously overturned the conviction of Arthur Andersen for document destruction. Except for the ultimate vindication of Arthur Andersen, broad provisions in SOX (adopted after the actions that were the subject of this case) regarding document destruction may limit the resonance of the case.

The court held that the jury instructions failed to convey properly the elements of a "corrup[t] persuas[ion]" conviction under the statute because they failed to convey the proper consciousness of wrongdoing: "Under ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the Government. Thus, §1512(b)'s 'knowingly . . . corruptly persuades' phrase is key to what may or may not lawfully be done in the situation presented here. The Government suggests that 'knowingly' does not modify 'corruptly persuades,' but that is not how the statute most naturally reads. '[K]nowledge' and 'knowingly' are normally associated with awareness, understanding, or consciousness, and 'corrupt' and 'corruptly' with wrongful, immoral, depraved, or evil. Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to 'knowingly . . . corruptly persuad[e].' And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability." The court was struck by "how little culpability the instructions required. For example, the jury was told that, even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict." The instructions covered even innocent conduct. The instructions also "led the jury to believe that it did not have to find any nexus between the 'persua[sion]' to destroy documents and any particular proceeding. In resisting any nexus element, the Government relies on §1512(e)(1), which states that an official proceeding 'need not be pending or about to be instituted at the time of the offense.' It is, however, quite another thing to say a proceeding need not even be foreseen. A 'knowingly . . . corrup[t] persuade[r]' cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material."