Obstruction of justice

Obstruction of justice, in United States jurisdictions, is a crime consisting of obstructing prosecutors, investigators, or other government officials. Common law jurisdictions other than the United States tend to use the wider offense of perverting the course of justice.

Obstruction is a broad crime that may include acts such as perjury, making false statements to officials, witness tampering, jury tampering, destruction of evidence, and many others. Obstruction also applies to overt coercion of court or government officials via the means of threats or actual physical harm, and also applying to deliberate sedition against a court official to undermine the appearance of legitimate authority.

Legal overview

Obstruction of justice is an umbrella term covering a variety of specific crimes.[1] Black's Law Dictionary defines it as any "interference with the orderly administration of law and justice".[2] Obstruction has been categorized by various sources as a process crime,[3] a public-order crime,[4][5] or a white-collar crime.[6]

Obstruction can include crimes committed by judges, prosecutors, attorneys general, and elected officials in general.

Federal law

In federal law, crimes constituting obstruction of justice are defined primarily in Chapter 73 of Title 18 of the United States Code.[7][8] This chapter contains provisions covering various specific crimes such as witness tampering and retaliation, jury tampering, destruction of evidence, assault on a process server, and theft of court records.[9] It also includes more general sections covering obstruction of proceedings in federal courts, Congress,[10] and federal executive agencies.[9] One of the broadest provisions in the chapter, known as the Omnibus Clause, states that anyone who "corruptly... endeavors to influence, obstruct, or impede, the due administration of justice" in connection with a pending court proceeding is subject to punishment.[11]

Statistics regarding the frequency of obstruction of justice prosecutions are unclear.[12] In 2004, federal agencies arrested 446 people for obstruction, representing 0.3 percent of all federal arrests.[13] This does not include, however, people who were charged with obstruction in addition to a more serious underlying crime.[12]

Sentencing enhancement

Under the Federal Sentencing Guidelines, a defendant convicted of any crime is subject to a more severe sentence if they are found to have obstructed justice by impeding the investigation or prosecution of their crimes.[14][15] While a separate conviction for the crime of obstruction would require proof beyond a reasonable doubt, a finding of obstruction for sentencing purposes only needs to meet the looser standard of "a preponderance of the evidence" (unless the enhanced sentence would exceed the statutory maximum sentence for the underlying crime).[16]

An obstruction finding adds two levels to the offender's sentence, which can result in as much as an additional 68 months of prison.[17] In 2017, the obstruction enhancement was applied in 1,319 cases, representing 2.1 percent of all sentences issued in federal courts.[18]

State law

State laws regarding obstruction of justice vary widely. A 2004 survey found that 24 states and the District of Columbia had a general statute criminalizing obstruction of justice or obstruction of government functions in broad terms, similar to those found in federal law.[9] All states have laws prohibiting some specific types of obstruction, such as witness tampering, jury tampering, or destruction of evidence.[9]

History

From the creation of the federal courts by the Judiciary Act of 1789, judges had the power to summarily punish those who obstructed justice by holding them in contempt of court.[19][20]

A scandal in 1830 led to reform of the contempt law and the creation of obstruction of justice as a separate offense. Federal judge James H. Peck imprisoned a lawyer for contempt for publishing a letter criticizing one of Peck's opinions. In an effort to prevent such abuses, Congress passed a law in 1831 limiting the application of the summary contempt procedures to offenses committed in or near the court. A new section, which survives today as the Omnibus Clause, was added to punish contempts committed outside of the court, but only after indictment and trial by jury.[19][20]

In 1982, in response to concerns that the obstruction law did not provide adequate protection to crime victims and other witnesses, Congress broadened the law against witness tampering and criminalized retaliation against witnesses, as part of the Victim and Witness Protection Act.[21]

The Sarbanes–Oxley Act of 2002 strengthened the obstruction laws regarding destruction of evidence before an investigation or proceeding has begun, in response to accounting firm Arthur Andersen's widely reported shredding of documents related to the Enron scandal.[22]

Notable examples

• The impeachment proceedings against Richard Nixon in 1974 included charges of obstruction of justice for impeding the investigation of the Watergate burglary. Nixon's acts of obstruction, as alleged by the House Judiciary Committee, included lying to investigators and withholding evidence, influencing witnesses (including through payments of hush money), and making false statements to the public about the investigation.[23][24] Nixon resigned before impeachment could be considered by the full House of Representatives, and he was preemptively pardoned by Gerald Ford before any criminal investigation could occur.[25]
• In the wake of the Iran–Contra affair, several members of the Reagan Administration were charged with obstruction of justice for alleged actions including lying to the Congressional committees investigating the matter and concealing evidence.[26]
• The impeachment of Bill Clinton in 1998 included allegations that Clinton obstructed justice by trying to influence the testimony of witnesses, including Monica Lewinsky, in the sexual harassment lawsuit filed against him by Paula Jones, and by encouraging Lewinsky to conceal evidence.[27] Clinton was acquitted of all charges by the Senate.
• Accounting firm Arthur Andersen was charged with obstruction of justice in 2002 for allegedly destroying and altering documents in anticipation of an investigation of the Enron scandal.[28] The company was convicted and effectively destroyed, though the conviction was later overturned.[29]
• Martha Stewart was convicted of obstruction of justice in 2004 for lying to investigators in the ImClone stock trading case about the reasons for a stock sale that was being investigated as potential insider trading.[30]
• In United States v. Binion, malingering (feigning illness) during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence.[31]
• Scooter Libby, advisor to Vice President Dick Cheney, was charged with obstruction of justice in 2007 for allegedly lying to a grand jury investigating the Plame affair about conversations that he had with reporters about Valerie Plame's identity as a CIA agent.[32][33] Libby was convicted of obstruction and related crimes, but his 30-month prison sentence was commuted by George W. Bush, and he was pardoned by Donald Trump in 2018 after a key witness recanted her testimony.[34][35]
• Conrad Black was convicted of obstruction of justice in July 2007[36] for removing 13 boxes containing financial records from his office in Toronto after they had been sealed by a court order, returning the boxes a few days later. Black was pardoned by Donald Trump in May 2019.[37]
• Barry Bonds was charged with obstruction of justice in 2011 for allegedly lying to a grand jury investigating the BALCO steroid scandal about whether his personal trainer had given him steroids.[38] Bonds was convicted and served 30 days of house arrest, but the conviction was later overturned on appeal.[39]
• Efforts to impeach Donald Trump have involved allegations that he obstructed justice by impeding the investigation of Russian interference in the 2016 Presidential election and the investigation of Trump–Ukraine scandal. The Mueller Report described ten alleged instances of potential obstruction, including Trump's dismissal of FBI director James Comey, attempts to influence witnesses, attempts to influence the Justice Department's oversight of Special Counsel Robert Mueller, and an attempt to have Mueller fired.[40] The House Judiciary Committee opened an investigation of the allegations.[41][42]

See also

• Accessory (legal term)
• False evidence
• Jury tampering
• Obstructing government administration
• Perverting the course of justice, a similar concept in the Commonwealth of Nations
• Spoliation of evidence
• Witness tampering

Footnotes

1. Posner, Richard A. (2009). An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Harvard University Press. p. 37. ISBN 9780674042322.
2. Doyle, Charles (April 17, 2014). Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities (Report). Congressional Research Service. p. 1. Retrieved June 17, 2019.
3. Murphy, Erin. "The Crime Factory: Process, Pretext, and Criminal Justice" (PDF). Georgetown Law Journal. 97: 1437. Retrieved June 19, 2019.
4. Burfeind, James; Bartusch, Dawn Jeglum (2011). Juvenile Delinquency: An Integrated Approach. Jones & Bartlett. p. 62. ISBN 9781449654337.
5. "All Terms & Definitions". Bureau of Justice Statistics. Retrieved June 19, 2019.
6. Baer, Miriam H. "Sorting Out White-Collar Crime" (PDF). Texas Law Review. 97 (2): 227. Retrieved June 19, 2019.
7. Riley, Tina M. (January 1, 1999). "Tampering with Witness Tampering: Resolving the Quandary Surrounding 18 U.S.C. §§ 1503, 1512". Washington University Law Review. 77 (1): 249–275.
8. 18 U.S.C. ch. 73
9. Decker, John (November 1, 2004). "The Varying Parameters of Obstruction of Justice in American Criminal Law". Louisiana Law Review. 65 (1).
10. "United States of America, Plaintiff-appellee, v. Michael B. Mitchell; Clarence M. Mitchell, Iii, defendants-appellants, 877 F.2d 294 (4th Cir. 1989)". In sum, we affirm appellants' convictions of violating 18 U.S.C. § 1505 because the evidence at trial supported the jury's verdict that they corruptly endeavored to influence a House investigation
11. Hsen, Mark; Evert, Nicholas; Susca, Rien; Wendzel, Bailey (2018). "Obstruction of Justice". American Criminal Law Review. 55 (3): 1499–1501.
12. Hill, Dana (January 1, 2004). "Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction under the Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. 1519". Cornell Law Review. 89 (6): 1519.
13. Compendium of Federal Justice Statistics, 2004 (PDF) (Report). Bureau of Justice Statistics. December 2006. p. 17. Retrieved June 20, 2019.
14. Guidelines Manual (PDF). United States Sentencing Commission. 2018. pp. 359–361. Retrieved June 14, 2019.
15. Flumenbaum, Martin; Karp, Brad S. (May 30, 2014). "Perjured Statements as a Basis for Sentencing Enhancement". New York Law Review. 251 (103).
16. Foster, Michael A. (August 24, 2018). Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change (Report). Congressional Research Service. Retrieved June 14, 2019.
17. Doyle, Charles (April 17, 2014). Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities (Report). Congressional Research Service. p. 79. Retrieved June 17, 2019.
18. Sourcebook of Federal Sentencing Statistics (PDF) (Report). U. S. Sentencing Commission. 2017. Table 18. Retrieved June 20, 2019.
19. "Criminal Venue in the Federal Courts: The Obstruction of Justice Puzzle". Michigan Law Review. 82 (1): 98–99. 1983. JSTOR 1288587.
20. Fitzpatrick, James (January 1, 1996). "The Supreme Court's Bipolar Approach to the Interpretation of 18 U.S.C. 1503 and 18 U.S.C. 2232(c)". Journal of Criminal Law and Criminology. 86 (4): 1383. doi:10.2307/1144062. JSTOR 1144062.
21. Riley, Tina M. (January 1, 1999). "Tampering with Witness Tampering: Resolving the Quandary Surrounding 18 U.S.C. §§ 1503, 1512". Washington University Law Review. 77 (1): 249–275.
22. Hill, Dana (January 1, 2004). "Anticipatory Obstruction of Justice: Pre-Emptive Document Destruction under the Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. 1519". Cornell Law Review. 89 (6): 1519.
23. Lyons, Richard; Chapman, William (July 28, 1974). "Judiciary Committee approves article to impeach President Nixon, 27 to 11". Washington Post. Retrieved June 13, 2019.
24. "For the purpose of deceiving the people". Wall Street Journal. November 13, 1998. Retrieved June 13, 2019.
25. Holson, Laura M. (September 8, 2018). "'No One Could Believe It': When Ford Pardoned Nixon Four Decades Ago". The New York Times. ISSN 0362-4331. Retrieved June 11, 2019.
26. Johnston, David (December 24, 1992). "Bush pardons 6 in Iran affair, aborting a Weinberger trial; prosecutor assails 'cover-up'". The New York Times. Retrieved June 13, 2019.
27. Marcus, Ruth (December 20, 1998). "Explanation of Article III". Washington Post. Retrieved June 13, 2019.
28. Weil, Jonathan; Barrionuevo, Alexei (June 16, 2002). "Arthur Andersen is convicted on obstruction-of-justice count". Wall Street Journal. Retrieved June 18, 2019.
29. Mears, Bill (May 31, 2005). "Arthur Andersen conviction overturned". CNN. Retrieved June 18, 2019.
30. Seigel, Michael; Slobogin, Christopher (December 31, 2003). "Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts". UF Law Faculty Publications.
31. Darani, Shaheen (January 1, 2006). "Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing". Journal of the American Academy of Psychiatry and the Law Online. 34 (1): 126–128.
32. "Highlights from Libby indictment". CNN. October 28, 2005. Retrieved June 13, 2019.
33. Lewis, Neil A. (March 7, 2007). "Libby guilty of lying in C.I.A. leak case". The New York Times. Retrieved June 13, 2019.
34. Baker, Peter (April 13, 2018). "Trump Pardons Scooter Libby in a Case That Mirrors His Own". The New York Times. ISSN 0362-4331. Retrieved June 11, 2019.
35. Miller, Judith (April 14, 2018). "Belated justice for Scooter Libby". Retrieved June 13, 2019.
36. Siklos, Richard (July 14, 2007). "Conrad Black Found Guilty in Fraud Trial". The New York Times. ISSN 0362-4331. Retrieved August 31, 2016.
37. "Trump pardons billionaire friend Conrad Black, who wrote a book about him". The Washington Post. May 15, 2019. Retrieved June 11, 2019.
38. "Barry Bonds convicted of obstruction of justice in performance-enhancing-drugs case". Los Angeles Times. April 13, 2011. Retrieved May 22, 2018.
39. Egelko, Bob (April 23, 2015). "Appeals court overturns Barry Bonds' obstruction conviction". San Francisco Chronicle. Retrieved June 13, 2019.
40. Sherman, Mark (April 18, 2019). "The 10 instances of possible obstruction in Mueller report". Associated Press. Retrieved June 18, 2019.
41. Schmidt, Michael S.; Savage, Charlie (April 18, 2019). "Mueller Rejects View That Presidents Can't Obstruct Justice". The New York Times. ISSN 0362-4331. Retrieved June 3, 2019.
42. "House Judiciary Committee Unveils Investigation into Threats Against the Rule of Law". Committee on the Judiciary - Democrats. March 4, 2019. Retrieved June 16, 2019.