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Engel Explains: The Trump-Comey “Tapes” and the Anti-Shredding Law

Engel Explains:  The Trump-Comey “Tapes” and the Anti-Shredding Law

Donald Trump has suggested that he has tapes on conversations in the White House, perhaps even the oval office.

The White House has not officially confirmed or denied the presence of such tapes.

But what if the tapes were destroyed before Congress or a Special Prosecutor can issue a subpoena.  Is that a crime?

The answer is yes.  This wuld be bstruction of justice in violation of what is known as the “Anti-Shredding Statute,” 18 U.S.C. § 1519.  The Anti-Shredding Statute states:

Whoever 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, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

The Anti-Shredding Statute was enacted as part of the Sarbanes-Oxley Act of 2002, which focuses on criminalizing corporate and accounting deception and cover-ups.

The Supreme Court of the United States recently rejected an argument by the Government that 18 U.S.C. § 1519 should be broadly read to expose, “individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal of civil.”  Yates v. United States, 135 S. Ct. 1074, 1079 (2015).  So what does the state cover?

The first question is whether the tapes are “tangible objects.”  For that, we have to look to fish.  Yes, fish.  In Yates, the Court considered a charged brought under § 1519 against the captain of a commercial fishing boat operating in the Gulf of Mexico.  An officer with the Florida Fish and Wildlife Conservation Commission, during an inspection discovered that the crew had caught a number of undersized red grouper.  The Officer directed the Captain to segregate and keep the undersized fish.  Instead, the Captain threw the undersized fish overboard.  The Captain was later charged with a violation of § 1519.  See 135 S.Ct. at 1080.

The government suggested that the statute was applicable to the missing fish because the fish were “tangible objects” within the meaning of the statute.  The Court disagreed.  Justice Ginsburg, in an opinion joined by the Chief Justice, Justice Breyer, and Justice Sotomayor, found that a “’‘Tangible object’ in §1519. . . is better read to cover only objects one can use to record or preserve information, not all objects in the physical world.”  135 S.Ct. at 1081.  The opinion by Justice Ginsburg explains that “§1519 was not intended to serve as a cross-the-board ban on the destruction of physical evidence of every kind.” 135 S.Ct. at 1083. Justice Ginsburg noted that a reading of the statute must matches the purpose of the statute: to deter and criminalize corporate and accounting deception and cover-ups.  She wrote:

Congress did not intend “tangible object” in §1519 to sweep within its reach physical objects of every kind, including things no one would describe as records, documents, or devices closely associated with them. . . .  If Congress indeed meant to make §1519 an all-encompassing ban on the spoliation of evidence, as the dissent believes Congress did, one would have expected a clearer indication of that intent.

135 S.Ct. at 1083 (citations omitted). Justice Alito’s concurring opinion is consistent with Justice Ginsburg’s for purposes of this motion.  He wrote, “the term ‘tangible object’ should refer to something similar to records or documents. A fish does not spring to mind—nor does an antelope, a colonial  farmhouse, a hydrofoil, or an oil derrick. All are ‘objects’ that are ‘tangible.’  But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a ‘record’ or ‘document,’ said ‘crocodile’?” 135 S.Ct. at 1089 (Alito, J., concurring).

In the case of any White House recordings, such tapes would almost certainly be considered to be “tangible object” under Yates since they can record or preserve information.

Clearly destryong the tapes would match the words of the statute.  But what if the White House simply tries to slow the investigation by continuing to refuse to confirm the existence of the tapes?  Would that violate the anti-shredding statute?  Probably not. In United States v. Katakis, 2015 U.S. App. LEXIS 15340 (9th Cir. 2015), a defendant was alleged to have violated 18 U.S.C. § 1519 by deleting emails from four computers; the emails were retrieved from one of the four computers by investigators.  The defendant had deleted the emails on one computer simply by moving them from the inbox to the deleted items folder.  The Government hinged its case on this as a “concealment” even though the emails were still present on the computer.  The Government urged the court to adopt a definition of conceal as, “anything that makes something harder for a casual onlooker to see, observe, or notice.”  Id., at *29 (internal quotations omitted).   The court rejected this proposal.  Instead, the Court held that, “[a]ctual concealment must do more than merely inconvenience a reasonable investigator–there must be some likelihood that the item will not be found.  That low bar is not met in this case.”  Id., at *34.  The court noted, “In essence, [the defendant] placed the ten incriminating emails into an email folder that is by default not displayed to the user.  But the first place that any competent investigator would look for emails that are not in the inbox is in the deleted items folder.”  Id., at *31.

A key part of the law is that the federal law is that it does not allow a defendant to escape liability for concealing, covering up, falsifying, or making a false entry in any record, document, or tangible object with intent to obstruct a foreseeable investigation of a matter within the jurisdiction of a federal agency just because the investigation has not yet co So the White House can’t destroy the tapes and later say, “Well, we had not received a subpoena, yet.”  If that happened, intent would be important.  Routine document destruction would be permissible, because the statute does not impose liability for knowingly destroying any record concealing, covering up, falsifying, or making a false entry in any record, document, or tangible object in contemplation of any federal matter without an intent to impede, obstruct, or influence a matter. United States v. Gray, 692 F.3d 514, 519 (6th Cir. 2012); United States v. Kernell, 667 F.3d 746, 753 (6th Cir. 2012), citing United States v. Yielding, 657 F.3d 688 (8th Cir. 2011),  Thus, a prosecutor would have to present evidence to suggest that the Defendants were acting to impeded a federal investigation.

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