Torture-tapes template

By HARVEY SILVERGLATE  |  December 16, 2008

Congress enacted Sarbanes-Oxley in 2002 to boost investor confidence following a string of high-profile corporate-accounting scandals — starting with the Enron fiasco — in which a large number of documents were destroyed. The law’s obstruction provisions were dubbed “criminal penalties for altering documents” and “tampering with a record or otherwise impeding an official proceeding.” But the Department of Justice quickly applied these new provisions to situations like Russell’s, which are not likely consonant with Congress’s intent. (The statute’s official title, which may explain the scope of behaviors Congress sought to prohibit, is the “Public Company Accounting Reform and Investor Protection Act of 2002.”)

Obstruction junction
Sarbanes-Oxley’s obstruction provisions are the latest in a long line of increasingly vague congressional enactments that make it frighteningly easy for an ambitious federal prosecutor not only to indict the proverbial ham sandwich, but to convict the sandwich and deposit it in federal prison for decades. Legal and business experts who learned of the Russell prosecution reacted with alarm. Mark A. DuBois, the chief disciplinary counsel for the Connecticut Bar Association, told Greenwich Time, the local newspaper, that he was troubled by how attorneys like Russell are forced to act as soothsayers. “How prescient does a lawyer need to be?” he asked. New York University Law School professor Stephen Gillers, one of the nation’s most respected experts on legal ethics, told the Associated Press (AP) that the obstruction provisions of Sarbanes-Oxley “upset a lot of assumptions about how lawyers can represent clients.”

Connecticut US Attorney Kevin O’Connor swiftly dismissed the hand-wringing, telling the AP that those who “impede investigations” by “destroying evidence . . . will be prosecuted, particularly when the obstructionists are attorneys and officers of the court.” The new Sarbanes-Oxley statute, said the prosecutor, was meant “to remedy the loopholes” in prior obstruction statutes. The new statute eliminates the need to tie the obstruction “to a pending or imminent proceeding or matter” and “does not require corrupt intent.”

Russell’s lawyer asked the trial judge in Connecticut, Alan H. Nevas, to dismiss the indictment. But Nevas agreed with the US Attorney’s office that the statute was constitutional, sufficiently clear, and could be applied to Russell’s actions. He ordered the case to trial. Rather than risk landing in federal prison for the better part of two decades, Russell plea-bargained and pleaded guilty to a charge of misprision of a felony. The misprision statute penalizes knowing about, and concealing rather than reporting, the commission of a federal felony. Its application to a lawyer in Russell’s position — representing a client in possession of contraband, to whom the lawyer owes a legal and ethical duty of confidentiality — is highly dubious.

Given the plight of Russell, one naturally asks why Bush-administration lawyers, including Harriet Miers (former counsel to President Bush), Alberto Gonzales (Miers’s predecessor, and later attorney general), David Addington (former counsel to Vice-President Cheney), and John B. Bellinger III (former legal adviser to the National Security Council) should not be subject to similarly harsh treatment if they are found to have encouraged the CIA to destroy videotaped interrogations of terror suspects.

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