On Monday, the Interim U.S. Attorney for the District of Columbia, Ed Martin, announced that his office would undertake a review of the decision-making that led to the charging of hundreds of January 6 protesters with “obstructing Congress” in violation of 18 U.S.C. Sec. 1512(c). That was a statute passed by Congress in 2005 to address an alleged hole revealed in an obstruction of justice statute criminalizing the destruction of records, documents, materials, etc., to obstruct an investigation. The “hole” was the fact that the language of the existing statute made it a crime to direct third parties to undertake such obstructive acts, but it did not – by its plain language – make it a criminal act to take such action yourself.
This was the finding of the Supreme Court in Arthur Andersen v. United States, an infamous case related to the Enron scandal where then-U.S. Attorney Andrew Weissmann put one of the “Big 5” accounting firms out of business – costing maybe 80,000 Arthur Andersen employees their jobs – only to eventually be reversed by the Supreme Court in a 9-0 decision.
The crime that Arthur Andersen supposedly committed? It followed its internal policy for destroying client records – Enron in this case – before it received a federal grand jury subpoena for those records as part of the probe into Enron’s accounting practices. Arthur Andersen was charged under Sec. 1512(b)(2) – there was no subsection (c) at that time – which made it a crime to “knowingly [and] … corruptly persuade another person … with intent to … cause” that person to “withhold” or “alter” documents intended for use in an “official proceeding.”
To get around the problem of Enron not having instructed Arthur Andersen to shred documents, Weissmann and crew focused on Arthur Andersen’s management directing Arthur Andersen employees to shred Enron documents. But no one at Arthur Andersen knew Enron was under investigation.
Ultimately, the Supreme Court’s decision was that because Arthur Andersen was following its internal policy, and was not aware the records were relevant to a federal grand jury investigation, it could not have acted “corruptly” in directing its employees to destroy Enron’s records. […]
— Read More: redstate.com
