According to the Legal Times, several justices were unsympathetic to the Justice Department’s (DoJ) claim that the beleaguered auditor “corruptly persuaded” its employees to destroy documents before official investigations into Enron began. According to the government in the case of Arthur Andersen v. United States, Andersen acted illegally in October 2001 by reminding employees of its document policy, which led to the destruction of many documents that could possibly have been helpful in the investigation of Enron.
Arguing before the court, Legal Times reports that Andersen’s lawyer – Maureen Mahoney – made the point that under long-standing Court precedent, destruction of documents without knowledge of a pending proceeding is legal. However, under the DoJ definition of “corruptly persuade,” ordering someone else to destroy these same documents would be a crime.
Attempting to clarify, Justice Anthony Kennedy might have put it best. ” If he did it himself, it’s not a crime, but if he tells his wife to do it, he goes to jail for 10 years,” Kennedy asked, according to the report.
The case could have far-reaching effects on employer document policies. Some worry that since such policies almost always result in some documents being destroyed, almost all policies will be illegal under the government’s theory. Kennedy noted that the government’s interpretation was a “sweeping” policy that would “cause trouble for every company,” according to the Legal Times.
Deputy Solicitor General Michael Dreeben, arguing for the DoJ, admitted that the actual destruction of documents was not illegal in the case. However, he suggested in Anderson’s case that telling employees to destroy documents was illegal, since there was a“reasonable possibility of an investigation.”
He stated that at the time of the reminder sent to employees regarding the document policy, it was clear that a federal investigation was “coming down the pike.”