WWSS

That's: What would Socrates say? Would he say--I mean to ask--that anyone could ever get convicted under 18 U. S. C. §§1512(b)(2)(A) and (B)?

Let me explain, since here's a point of contact, not without interest, between accounting ethics and ancient philosophy.

Background: Enron's auditor, as you know, was Arthur Andersen. On Oct. 20, 2001, when it became clear that Enron was in trouble and was going to be investigated by the SEC, Andersen's management initiated a company-wide effort to destroy all working papers, memos, internal communications, etc. relating to Enron (except those needed for current audit work). This involved in some cases hiring dumptrucks to haul documents to shredding facilities. The management issued their order in the form: let's be sure to apply our firm's document retention policy to all Enron documents. But this was disingenuous, because the firm's policy was not to destroy documents related to a client if an investigation was judged likely. (See note 1 below.) The firm continued to destroy documents until Andersen was served with a subpoena for Enron related documents on Nov. 9-- twenty days later.

Because of this cover-up, Andersen was indicted and convicted of obstruction of justice. It lost its license to practice before the SEC and therefore went out of business (or effectively so: Andersen still exists as a very small firm).

However, on May 31, 2005, the US Supreme Court (see the decision here) threw out the conviction and ordered a retrial, on the grounds that the judge's instruction to the jury was faulty.

The statute under which Andersen was convicted (18 U. S. C. §§1512) declares as criminal:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding [my emphasis]...

Everything hinged on whether "knowingly" qualifies "corruptly persuades" or, rather, only the words that immediately follow it, viz. "uses intimidation, threatens". The prosecutors argued for the latter, which the District Court accepted, and therefore the Court instructed the jury that, to find Andersen guilty, it was necessary only to determine that Andersen intended to "subvert, undermine, or impede" governmental factfinding; also that, "even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty."

The Supreme Court, in a unanimous decision written by Justice Rhenquist, disagreed. In its view, "knowingly" qualifies "corruptly persuades", so that a consciousness of wrongdoing is required for a conviction under the statute. Here is the relevant paragraph:

The parties have not pointed us to another interpretation of "knowingly ... corruptly" to guide us here.In any event, the natural meaning of these terms provides a clear answer. See Bailey v. United States, 516 U. S. 137, 144-145 (1995). "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness. See Black's Law Dictionary 888 (8th ed. 2004) (hereinafter Black's); Webster's Third New International Dictionary 1252-1253 (1993) (hereinafter Webster's 3d); American Heritage Dictionary of the English Language 725 (1981) (hereinafter Am. Hert.). "Corrupt" and "corruptly" are normally associated with wrongful, immoral, depraved, or evil. See Black's 371; Webster's 3d 512; Am. Hert. 299-300. Joining these meanings together here 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 ... we usually require in order to impose criminal liability." United States v. Aguilar, 515 U. S., at 602; see also Liparota v. United States, supra, at 426.

This is of course what makes me wonder, WWSS? Has the Supreme Court erected a standard for criminality which could not possibly be satisfied, because no one willingly does what he regards as evil?

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Note 1. Here is the U.S. Supreme Court's summary of Andersen's document rentention policy: "The firm's policy called for a single central engagement file, which "should contain only that information which is relevant to supporting our work." App. JA-45. The policy stated that, "in cases of threatened litigation, ... no related information will be destroyed." Id., at JA-44. It also separately provided that, if petitioner is "advised of litigation or subpoenas regarding a particular engagement, the related information should not be destroyed. See Policy Statement No. 780--Notification of Litigation." Id., at JA-65 (emphasis deleted). Policy Statement No. 780 set forth "notification" procedures for whenever "professional practice litigation against [petitioner] or any of its personnel has been commenced, has been threatened or is judged likely to occur, or when governmental or professional investigations that may involve [petitioner] or any of its personnel have been commenced or are judged likely." Id., at JA-29 to JA-30."