I have a few quick thoughts on the
oral argument in Yates. Recall that the issue is whether the term
"tangible object" in the "anti-shredding provision" of
Sarbanes-Oxley, section 1519, includes objects such as fish. Yates argues that
"tangible object" must be read narrowly because it appears in
sequence with the terms "record" and "document" and because
the purpose of the anti-shredding provision was to ensure companies did not
destroy business records in the wake of Enron/Arthur Andersen.
1. Yates's counsel appeared to
concede that the nearly identical language of 18 U.S.C. 1512(c)—“record, document,
or other object”—would cover his
client’s conduct. (Tr. 13). In my view, that is a fairly damaging concession.
It means that Yates is effectively abandoning any pretense of making a textual
argument, and rests solely on the seeming oddity of prosecuting the destruction
of fish under a statute that was clearly meant to address the destruction of
business records. But if that were the case, why did Congress use nearly
identical language in section 1519 to mean something different from section
1512?
And as the assistant SG pointed out
in his argument (Tr. 41), the concession means that Congress has elsewhere
passed provisions within Sarbanes-Oxley that would cover the destruction of fish, since section 1512 is a part
of that act. So Yates’s argument starts to break down when you consider that he
concedes that parts of Sarbanes-Oxley
can apply to fish, just not this part.
2. A number of justices expressed
concern that, like in the Bond case, federal prosecutors have failed to
exercise their prosecutorial discretion. (Tr. 27) (Justice Scalia joking that “Is
this the same guy that – that brought the prosecution in Bond last term?”); (Tr. 31) (Chief Justice Roberts discussing the
inordinate leverage the government’s broad charging practices give it in plea negotiations);
(Tr. 36) (Justice Breyer: “And why wouldn’t it happen? It wouldn’t happen
because they’d never prosecute it, though I’ve had my doubts recently.”).
Justice Scalia went so far as to
suggest that he would account for the government's overreaching prosecutorial
policies by adjusting his own view of statutes:
Well, if
that’s going to be the Justice Department’s position, then we’re going to have
to be more careful about how extensive statutes are. I mean, if you’re saying we’re
always going to prosecute the most severe, I’m going to be very careful about
how severe I make statutes...Or – or how much coverage I give to severe
statutes.
(Tr. 29). For a strict textualist
like Scalia, that’s a pretty extreme statement. There is really no basis for
the Court to read a statute narrowly just because the government has an
internal policy about applying the statute whenever it is a lawful fit to the
alleged conduct. The mere fact that the government isn’t generous enough with
its exercise of discretion doesn’t change Congress’s intent when it passed the
statute, which as Justice Scalia is usually the first to point out, is what
actually matters.
Justice Kennedy also made some
intriguing comments on prosecutorial discretion: “But [Yates] has no – he has
no doctrinal basis to make that argument [limiting the scope of the term ‘tangible
object’ to not include fish] other than to say that there is such a doctrine as
prosecutorial discretion and, A, that it’s enforceable and, B, that it has some
substance, and you’ve indicated that it
has neither” and “Well, it seems to me that we should just not use the concept
or refer to the concept at all anymore.” (Tr. 52-53).
I find these statements very
confusing. They suggest that prosecutorial discretion is something other than
what it plainly is—a matter of discretion.
I’m unaware of any case where the concept of prosecutorial discretion was used
to read statutes narrowly.
More than anything, I think the
Court is trying to send a message to DOJ that it doesn’t want to see these
sorts of prosecutions going forward. DOJ might be wise to heed that message.
3. Justice Breyer appeared to think
that there were some void-for-vagueness problems with the statute. (Tr. 17). Again,
I have no idea why that would be. The term “tangible object” probably just
refers to any object that has a physical form. Because fish have a physical
form, they’re covered. What’s vague about that? (Justice Scalia made this point
at the argument, Tr. 17).
But when Yates’s counsel tried to
press that point in oral argument, even Justice Breyer was resistant—“Yes, but
it wasn’t raised below. And these are very difficult issues and it’s sort of
flying blind not to have lower court opinions and the thing fully argued out
before we get to it.” (Tr. 55). So while there were a few mentions of vagueness
in Yates’s brief, the Court likely won’t entertain that argument because of
waiver.
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