Vanderbilt Law Review


Daniel A. Shtob

First Page



The year 2002 may be remembered in the annals of the law as the year that corporate America became accountable for its actions. The boardroom, equated with the smoke-filled room of corrupt enterprise and political machination, came under fire as industry giants sank amidst charges of misconduct. In response to high profile allegations of corporate fraud, Congress commenced a fervent bipartisan effort to draft and implement a law to counter corporate obstruction of justice. On July 1, 2002, President George W. Bush signed the Sarbanes-Oxley Act. The bill included a section that prescribes strong penalties for individuals who corruptly impede an official investigation. More specifically, 18 U.S.C. 1512(c), passed as part of Sarbanes-Oxley, provides that:

Whoever corruptly-(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

Since the passage of Sarbanes-Oxley, prosecution for obstruction of justice has gained prominence as a means of criminally sanctioning individuals suspected of involvement in other substantive misconduct. Subsequently, it appears that the obstruction charges have been levied as a type of proxy for substantive offenses, partially as a means to strengthen the prosecutor's hand during the inquiry stage of white-collar investigations.

Close examination of the Act indicates congressional intent to significantly increase the criminal penalty for unscrupulous acts in the business setting. Indeed, the Act was ascribed greater weight in Congress than a routine overhaul of criminal sanctions: its discussion was couched in crisis terms and its passage was deemed critical to both the efficient operation of capital markets and the restoration of faith in the American free enterprise system. Not only politicians stood up and took notice. A television commercial for Heineken beer, broadcast during the 2002 holiday season, vilified document destruction as being anathema to having been "good this year."

President Bush reiterated the important social interests behind subsection 1512(c), stating that the purpose of the Act was to "adopt tough new provisions to deter and punish corporate and accounting fraud and corruption, ensure justice for wrongdoers, and protect the interests of workers and shareholders." While the intent behind this portion of the Act appears manifestly clear, issues of construction give rise to ambiguous interpretation that may lead to inconsistent application. Perhaps recognizing this potential, the President attempted to provide some interpretive guidance, stating that Several provisions of the Act require careful construction by the executive branch as it faithfully executes the Act .... To ensure that no infringement on the constitutional right to petition the Government for redress of grievances occurs in the enforcement of section 1512(c) of title 18 of the U.S. Code ... which among other things prohibits corruptly influencing any official proceeding, the executive branch shall construe the term "corruptly" in section 1512(c)(2) as requiring proof of a criminal state of mind on the part of the defendant."