The Sarbanes-Oxley Act, passed into law after the Andersen case was filed, gives the feds the powers they improperly used against Andersen.
“in real terms, the opinion likely won’t change much in the way business does business in the post-Enron era. “If you’re a corporate defendant, you still have to make a deal with [New York Attorney General] Eliot Spitzer or the Justice Dept.,” says Stephen Ryan, a partner at Manatt, Phelps & Phillips and a former assistant U.S. attorney. “You still have to suspend your document-destruction program whenever you get a subpoena. Life goes on, frankly, with very little change.” (Businessweek)
In the Andersen case, Chief Justice Rehnquist explained that withholding information from the government is not a crime. In fact, it is a right under the Fifth Amendment. “Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination,” Rehnquist wrote.
Under Sarbanes-Oxley, it is now a crime to destroy a document “in contemplation” of a law enforcement investigation, whether a subpoena has been issued or not. This provision criminalizes any corporate document-retention policy that could be construed as impeding any possible government investigations in the future. A corporate lawyer may not inform employees of their right against self-incrimination, because this may frustrate future prosecutions.
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> In the Andersen case, Chief Justice Rehnquist
> explained that withholding information from the
> government is not a crime. In fact, it is a right
> under the Fifth Amendment. “Consider, for
> instance, a mother who suggests to her son that he
> invoke his right against compelled
> self-incrimination,” Rehnquist wrote.
I’m afraid your reading of the Supreme Court decision is incomplete and incorrect.
Rehnquist said, among other thing, the following:
“The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the “persua[sion]” to destroy documents and any particular proceeding. In resisting any type of nexus element, the Government relies heavily on §1512(e)(1), which states that an official proceeding “need not be pending or about to be instituted at the time of the offense.” It is, however, one thing to say that a proceeding “need not be pending or about to be instituted at the time of the offense,” and quite another to say a proceeding need not even be foreseen. A “knowingly … corrup[t] persaude[r]” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.”
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-368
In other words, he believes it might be well within the limits of law if the jury decides that the defendant is guilty because he destroyed the documents in full compliance with the internal policies but still did “have in contemplation any particular official proceeding in which those documents might be material”. Thus, the Supreme Court did not invalidate the concept of criminality of destruction of the documents which could simply be foreseen to be subpoenaed in some not-too-distant future.
Rehnquist was clearly addressing – in his analogy – the right not to incriminate oneself. I was certainly oversimplifying the decision to fit it into a short sentence. Yes, Rehnquist talked about lots of other nuances. The point I am trying to get across is that Sarbox probably “overturned” the Supreme Court decision, so that in the end it will not protect anyone’s rights. I hope I am wrong.
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