The New Yorker:

The former President notwithstanding, the government’s position in Fischer v. United States is unsettling.

By Amy Davidson Sorkin

On Monday, October 15, 2001, an executive assistant arrived for work at the Houston office of Arthur Andersen, at the time one of the Big Five accounting firms, to find that the break room was a mess. “There was food everywhere,” she later said, “like they had been there the whole weekend.” Near the remnants of meals were bags stuffed with paper strips. This was the opening scene in what became—as Bethany McLean and Peter Elkind recount in “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron”—a bacchanalia of document shredding. Arthur Andersen executives had learned that their client Enron was likely being investigated by the Securities and Exchange Commission for what would prove to be egregious fraud. Subpoenas might arrive any day. They also knew, to varying degrees, that their own work on Enron’s books would not hold up to scrutiny. Soon, “files awaiting destruction spilled out into the hallways,” McLean and Elkind write. The pretense was that the paper obliteration was just a reflection of the accounting firm’s “document-retention policy,” and yet, in the space of about two weeks, the Houston office shredded more than it would in a year. At one point, Arthur Andersen, with its own machines at capacity, hired a mobile shredding truck from a company called Shred-It. Even the firm’s London office got in on the shredding.

That sorry episode was revisited, repeatedly and somewhat incongruously, before the Supreme Court on Tuesday, in oral arguments for Joseph W. Fischer v. United States. Fischer was part of the mob that assaulted the Capitol on January 6, 2021. He, like hundreds of other January 6th defendants, has been charged with, among other things, violating the Sarbanes-Oxley Act, a law that Congress passed, as Justice Elena Kagan put it on Tuesday, when “it had just gone through Enron” and had wanted to be sure that people like the Arthur Andersen accountants could be punished. However, Jack Smith, the special counsel overseeing the Justice Department’s investigations of Donald Trump, has used the same law for two of the four charges against the former President in the indictment that he brought in Washington, D.C. (Next week, the Court will also hear Trump’s argument that he is immune to those charges; he is facing three other criminal cases, too, and denies all wrongdoing.) Fischer argued that the prosecutors overreached by using Sarbanes-Oxley this way. Unfortunately for Smith, judging from the questions, a majority of the Justices seem to agree.

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