Here is the Justice Department’s brief in Arthur Andersen’s appeal to the U.S. Supreme Court of its criminal conviction of witness tampering in connection with its destruction of Enron Corp.-related documents during the latter stages of that company’s collapse in late 2001.
The Justice Department frames its argument of the key issue in the appeal in the following manner:
The lower courts correctly defined the term ?corruptly? in Section 1512(b) as ?having an improper purpose? ?to subvert, undermine, or impede the fact-finding ability of an official proceeding.? The lower courts? definition is consistent with the purpose-based definition long given to the identical term in the general obstruction-of-justice statute, 18 U.S.C. 1503, on which Section 1512 was based; in other obstruction-of-justice statutes; and in other federal criminal statutes more generally. That definition does not render the term ?corruptly? superfluous. Nor does it criminalize conduct that is not inherently wrongful, because it has long been understood that it is improper to destroy documents when litigation is anticipated for the purpose of frustrating the truthseeking process.
Petitioner?s novel alternative definitions of the term ?corruptly? ? which would require either ?proof of improper means of persuasion or inducement to unlawful acts,? or ?proof of consciousness of wrongdoing? ? should be rejected. The former definition cannot be reconciled with the text of the statute; would give the term ?corruptly? a different meaning in Section 1512(b) than in other obstruction-of-justice statutes; and would criminalize little, if any, conduct that is not already criminalized by other provisions. The latter definition contravenes the established principle that ignorance of the law is no defense, and no exception to that principle is warranted here.
The Justice Department’s brief is 77 pages, which makes it even more incredible to me that appellate attorneys are not using the bookmark tool in Adobe Acrobat to facilitate ease of review of lengthy appellate briefs.
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