Quite the flaying (fileting?) from Anush Khardori of Politico Magazine:

It does not take long — the first chapter — before Gorsuch misleads the reader in Over Ruled.

He is discussing the case of John Yates, a commercial fisherman who was prosecuted after wildlife agents discovered that he had caught undersized red grouper in the Gulf of Mexico in violation of federal regulations.

Here is the story as Gorsuch tells it: One day in 2007, an agent boarded Yates’ boat and spent hours “rummaging through” a pile of fish before he then “declared” that Yates had caught 72 fish considered too small to capture under federal law. The agent returned several days later and again found nearly 70 undersized fish, but the measurements did not match those from days earlier. “From that and other evidence,” Gorsuch writes, “the agent grew suspicious that the fish at the dock were not the same fish he had measured at sea.”

Prosecutors eventually charged Yates with violating a provision of the Sarbanes-Oxley Act that makes it a crime to alter or falsify “any record, document, or tangible object” with the intent to impede a federal investigation. Yates was convicted at trial and sentenced to 30 days in prison, which he served. He later appealed, and in 2015, he prevailed at the Supreme Court when a plurality of justices agreed that the provision applies only to objects that “one can use to record or preserve information, not all objects in the physical world,” and that it therefore did not cover Yates’ misconduct.

Gorsuch lambastes federal officials for having “robbed [Yates] and his family of the life they cherished” and mocks them for trying “to extend financial fraud legislation to red grouper.” He argues that the charge relied on dubious and at times speculative evidence about why the fish on Yates’ boat appeared to be different when law enforcement officers returned after their first visit. In interviews about the book, Gorsuch has described the facts of the case in the same way — as an inexplicable tale of federal overreach.

Gorsuch provides a tidy and persuasive account of overzealous federal prosecutors, but he does not mention two important facts that change how you ought to see the case.

First, at Yates’ trial, the government presented testimony from a cooperating witness — a fisherman on the boat who worked for Yates — who testified that after the first visit, Yates instructed the crew to throw out the fish that had drawn the wildlife agent’s attention and to replace them. According to the witness, Yates also told them to lie to the government if asked about it.

Second, Yates was not just convicted on the Sarbanes-Oxley charge. He was also tried and convicted under a separate statute of destroying or removing property to prevent its seizure by federal authorities, and he did not contest that conviction at the Supreme Court….

After two months of trying and failing to get an audience with Gorsuch, I asked Gorsuch’s book publisher if he would comment simply on the problems with his chapter on John Yates: Why had he omitted some key facts? Was it an honest error? And would he, as a judge, accept such a misleading treatment of facts if a lawyer did something similar in a case before him?

I never got a response from Gorsuch, but I did receive an unsolicited statement from Gorsuch’s co-author — a former clerk named Janie Nitze whom Gorsuch describes in the book as “one of the most remarkable lawyers of her generation” and “the best of friends.” This didn’t appear to be the first time Nitze had mounted a public defense of the book without Gorsuch being willing to attach his own name to it.

“How can Politico complain with a straight face that our book didn’t address two facts about John Yates’s case when Politico omitted those very same facts in a lengthy piece it published about the case in 2014?” Nitze asked.

This was apparently a reference to a first-person account written by Yates himself that was published in the run-up to the Supreme Court’s oral argument. It appears that Yates obscured the same facts from our readers at the time, but that is hardly a reason for Gorsuch and Nitze to do the same…..