Just to keep things lively, I'll disagree with Gordon Smith over at Conglomerate, about the Andersen decision. The question is whether the jury was properly instructed on the elements of witness tampering under 18 U.S.C. § 1512(b)(2):
Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person . . . with intent to . . . cause or induce any person to . . . withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impoair the object's integrity or availability for use in an official proceeding [will be in trouble].
Professor Smith finds the Court's argument unpersuasive, that "knowingly" modifies "corruptly persuades," so that the defendant's persuasion must be both knowing and corrupt. The Court cites the plain meaning rule from Bailey v. U.S., 516 U.S. 137 (1995) (the case about "using or carrying" a firearm), and Prof. Smith doesn't suggest that the plain meaning rule is inapposite here. So I guess we just have a clash of syntactical intuitions. Given the structure of the statute, it does look like "knowingly" modifies all the words following it -- use force, threaten, or persuade. "Persuade" has another modifier tacked onto it, "corruptly," which clarifies that there is a such thing as knowing, non-corrupt persuasion. Thus, for a persuasion-based conviction (as opposed to using or threatening force), the government needs to show both knowledge and a corrupt purpose.
Statutory parsing aside, the Court's decision makes a great deal of sense in light of Chief Justice Rehnquist's view that it's not necessarily wrongful to oppose the government. (Slip op. at 7.) Significantly, he cites Upjohn Co. v. U.S., 449 U.S. 383 (1981), in which he noted that corporations must consult with lawyers without fear that the government may learn the content of lawyer-client communications. He reiterated this position in Swidler & Berlin v. U.S., 524 U.S. 399 (1998), giving short shrift to the government's asserted interests in obtaining information so that it could prosecute crimes. It is not surprising that a Court, and a Chief Justice, who rejected the argument that "in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality," Swidler, 524 U.S. at 406, would take pains to preserve the ability of lawyers (and others) to non-corruptly persuade others not to cooperate with the government.
The bottom line is that a lawyer cannot be convicted of corruptly persuading another to engage in obstruction of justice if the underlying act (e.g. shredding documents) is not itself a crime. The jury instruction in the Andersen trial was ambiguous because it permitted conviction on the grounds that the defendant intended to "impede" government factfinding. In light of Chief Justice Rehnquist's belief that it can be legitimate in some cases to impede the government's factfinding, this decision isn't surprising.
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