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Corrupt Persuaders

By Jeremy Freeman

The Supreme Court has now heard oral argument in the late Arthur Andersen's petition to review its conviction under the federal “witness tampering” statute, 18 U.S.C. ' 1512(b)(2). This case is the most recent and infamous manifestation of a decade-long debate about the statute. Now the Court has an opportunity to impose clear rules that would resolve the uncertainty about the scope and mental state required to prove “witness tampering” in federal investigations of all kinds.

Arthur Andersen (Andersen) was convicted in 2002 on the theory that it “corruptly” persuaded members of its Enron audit engagement team to comply with Andersen's document retention policy by destroying documents while the SEC was conducting an informal inquiry into Enron. The decision transformed routine document retention issues into life or death decisions for many companies and highlighted the broad and divergent views of federal circuit courts in interpreting the law.

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