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Argument in the Supreme Court

By Nicholas A. Oldham
May 02, 2005

At oral argument on April 27, several justices seemed troubled by the government's interpretation of “corruptly persuades” and “official proceeding.” Deputy Solicitor General Michael Dreeben said Andersen's document shredding was equivalent to directing someone to “wipe down the fingerprints” at a crime scene before the police arrived, and that companies must preserve documents whenever there's a “reasonable possibility” of an impending inquiry. But Justice Scalia interrupted: “You want criminal liability to attach to that?” “You want someone to go to jail for that?” He found it “weird” that federal statutes could say it's OK to shred documents but a crime to ask someone else to shred them.

Justice Kennedy called the government's position “sweeping,” and said it will cause problems for every business in the country — a key argument made by Andersen's lawyer, Maureen Mahoney. Dreeben responded that Andersen was using its document retention policy “as a cover” for thwarting an impending investigation, and that this was an “extraordinary case.” Justice O'Connor later noted that the rule of lenity may apply. If so, that could be grounds for reversing Andersen's conviction.

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