May 31, 2005

Knowingly corruptly persuade

Today's U.S. Supreme Court decision in Arthur Andersen LLP v. United States hinges on a point of linguistic analysis.

The decision said:

As Enron Corporation's financial difficulties became public, petitioner, Enron's auditor, instructed its employees to destroy documents pursuant to its document retention policy. Petitioner was indicted under 18 U. S. C. §§1512(b)(2)(A) and (B), which make it a crime to "knowingly ... corruptly persuad[e] another person ... with intent to ... cause" that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding." The jury returned a guilty verdict, and the Fifth Circuit affirmed, holding that the District Court's jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding" in §1512(b); that the jury need not find any consciousness of wrongdoing in order to convict; and that there was no reversible error. [emphasis added]

Held: The jury instructions failed to convey properly the elements of a "corrup[t] persuas[ion]" conviction under §1512(b).

The cited portion of the law 18 USC §1512(b), reads in a less abridged form as follows:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to -
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding;
shall be fined under this title or imprisoned not more than ten years, or both.

The body of the opinion explains

This Court's traditional restraint in assessing federal criminal statutes' reach [...] is particularly appropriate here, where the act underlying the conviction--"persua[sion]"--is by itself innocuous. Even "persuad[ing]" a person "with intent to ... cause" that person to "withhold" testimony or documents from the Government is not inherently malign. Under ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the Government. Thus, §1512(b)'s "knowingly ... corruptly persuades" phrase is key to what may or may not lawfully be done in the situation presented here. The Government suggests that "knowingly" does not modify "corruptly persuades," but that is not how the statute most naturally reads. "[K]nowledge" and "knowingly" are normally associated with awareness, understanding, or consciousness, and "corrupt" and "corruptly" with wrongful, immoral, depraved, or evil. Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to "knowingly ... corruptly persuad[e]." And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability.

Homework questions:

1. What are the plausible parses for 18 USC §1512(b)?

2. What is the the scope of modification of the adverbs knowingly and corruptly in each plausible parse?

3. Do you think laws might be clearer if lawmakers normally took a couple of linguistics courses?

[Link via email from Lane Greene, who also draws attention to this zinger at the end of the opinion, which was written by Chief Justice William H. Rehnquist:

The government suggests that it is "questionable whether Congress would employ such an inelegant formulation as 'knowingly ... corruptly persuades.' " Long experience has not taught us to share the Government's doubts on this score...


Posted by Mark Liberman at May 31, 2005 03:03 PM