You may recall the recent fiasco in which a trove of important, possibly incriminating e-mails involving former IRS official Lois Lerner mysteriously went missing. Rep. Darrell Issa (R-Calif.) claims to have at least 20 examples of Obama administration officials destroying evidence or not fulfilling their legal obligation to report records that have been lost. You may also recall similar episodes of important e-mails going missing during the George W. Bush administration, including e-mails involving the torture memos and the U.S. attorney firings. No one faced any criminal legal consequences. You might also remember that five years ago, the CIA admitted that its agents destroyed evidence of illegal torture by other CIA agents, then felt it didn’t really owe the public an explanation. The Department of Justice and the National Security Agency have also been caught destroying evidence of possible illegal spying on several occasions. Again, no legal consequences.
If you read the blog of Carlos Miller, you’re probably aware of dozens of incidents in which police officers have illegally confiscated citizen cellphones and deleted incriminating videos, which is not only an act of destroying evidence of possible wrongdoing but is also the unlawful destruction of someone else’s property. They rarely, if ever, face any legal consequences. (These are, of course, local infractions, not federal. But still.)
I could go on, but you get the idea. In any case, keep all of that in mind as you read this:
Look up the definition of “fisherman” and John Yates’ wrinkled, weather-beaten, Winston-puffing mug might appear. But these days, he’s limited to restoring antique furniture and dealing in scrap metal.
Now look up the Sarbanes-Oxley Act of 2002, and you’ll find the federal government’s Enron-inspired crackdown on financial fraud and document shredding.
But three years ago, the act reeled in Yates for tossing 72 undersized red grouper into the Gulf of Mexico.
On Wednesday, the Supreme Court will examine the curious case of Yates v. United States, which asks the question: Was it the government that went overboard?
“It’s obvious that a fish is not a document,” says Yates, 62, over a lunch of grouper bites and Budweisers on the Gulf coast, which has been his home for the past 15 years. “You don’t have to be that smart to figure that out.” . . .
The facts of the case: Yates was captaining the 47-foot “Miss Katie” in 2007 when a state conservation officer with federal enforcement power boarded, measured some 3,000 pounds of fish and found 72 grouper under the 20-inch minimum. He ordered them returned to shore.
Not throwing back in the undersized fish is a civil violation, punishable by a fine or fishing license suspension. But this fish tale got more complicated when Yates allegedly ordered a crew member to throw the offending fish overboard and replace them with longer ones. When the fish were remeasured on dry land, the government smelled a rat. So to speak.
It’s a charge Yates still denies to this day; He says they were the same fish, measuring differently based on their mouths, tails and temperature. His wife, Sandy, a former paralegal, keeps a voluminous file that includes the original handwritten measurements of each fish.
Yates was convicted in 2011 of violating Sarbanes-Oxley, which carries a possible 20-year sentence for tampering with or destroying “any record, document or tangible object.” He served a 30-day sentence over the Christmas holidays and still lives under a three-year supervised release program. When Sandy’s sister died earlier this year, he quips, “It took an act of Congress for me to bury her in Ohio.”
As the court date has approached, several legal commentators have commended the government for stating a strong case. Despite the existence of more than 4,500 criminal statutes, it lacked a go-to law prohibiting destruction of evidence, particularly before legal action was threatened.
Sarbanes-Oxley filled that need. It’s been used to go after the destruction of cars, cash, cocaine, child pornography — even murder weapons and bodies. Recently, it was used to convict a man who helped the Boston Marathon bombers conceal a backpack containing fireworks and other evidence . . .
Yates even has the support of Michael Oxley, the co-author of Sarbanes-Oxley. That has persuaded the federal government to drop the charges.
The 4,500 count in the excerpt is almost certainly lowballing it, by the way. Previous efforts to find out just how many federal criminal laws there are have ended in futility. The problem is not only the fat (and getting fatter) federal criminal code, but also the thousands of regulations that can also be enforced criminally. In April, the Congressional Research Service published a summary of just “some” of the federal laws aimed at nabbing people who attempt to destroy or tamper with evidence. That report alone — just a summary — was more than 80 pages long.
Point is, when a federal law enforcement agency wants to charge you with something, it can probably find a way to do it. If you make it more difficult for it to do so by destroying evidence, intentionally or not, the agency will get you for that, too, or at least instead. Yet somehow when it comes to finding a way to charge federal officials and law enforcement officers who destroy evidence, those vague laws seem to get pretty specific, and broad laws seem to narrow. (Currently, Sarbanes-Oxley doesn’t apply to government agencies, though as noted, other laws do.)
Somehow, we’ve reached the point where allegedly returning 72 undersized groupers to the sea can get a fisherman rung up on federal charges, but destroying evidence of possible government torture, illegal spying or the political targeting of taxpayers aren’t crimes worth pursuing.