However, Andersen lawyers are planning to argue that Mr. Duncan denied having the intent to obstruct justice until almost the day he decided to reach a plea bargain.
"The defense wants to show that Mr. Quattrone didn't have the intent to obstruct justice," a former S.E.C. lawyer, Robert G. Heim, said.
"We want to assure ourselves," he wrote, "that you have not attempted to mislead this committee with the intent to obstruct an investigation".
In other words, the defendants cannot be convicted of obstructing the administration of justice in the federal court because they did not know that justice was being there administered, and that, as they did not combine with the intent of obstructing the administration of justice, no such intent can, in law, be imputed to them.
The Supreme Court in 2005 overturned the conviction of Arthur Andersen on the grounds that the government did not prove the firm destroyed documents with the intent of obstructing justice.
If the intent is to obstruct a federal investigation, then it becomes obstruction of justice".
If there is evidence that anyone at the company covered up or destroyed records "with the intent to impede, obstruct, or influence" a future investigation, that could be grounds for a criminal charge.
That lines up rather nicely with 18 U.S. Code § 1519, which defines as a felony anyone who "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States".
The destruction of documents with the intent to impede or obstruct an investigation is a crime punishable by up to 20 years in jail under US law.
At issue in Yates is 18 U.S.C. §1519 which makes anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object" with the intent to impede or obstruct an investigation guilty of a federal crime.
The big questions are what kind of proof is necessary to show intent to obstruct justice and to what extent can the intent of one Andersen partner or employee be attributed to the entire firm.
