Obstruction of justice

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

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

Generally, obstruction charges are laid when it is discovered that a person questioned in an investigation, other than a suspect, has lied to the investigating officers. However, in most common law jurisdictions, the right to remain silent can be used to allow any person questioned by police merely to deny answering questions posed by an investigator without giving any reason for doing so. (In such a case, the investigators may subpoena the witness to give testimony under oath in court, though the witness may then exercise their rights, for example in the Fifth Amendment, if they believe their answer may serve to incriminate themselves.) If the person willfully and knowingly tried to protect a suspect (such as by providing a false alibi) or to hide from investigation of their own activities (such as to hide their involvement in another crime), this may leave them liable to prosecution. Obstruction charges can also be laid if a person alters, destroys, or conceals physical evidence.[1] Obstruction charges may also be laid in unique situations such as refusal to aid a police officer, escape through voluntary action of an officer and refusing to assist prison officers in arresting escaped convicts.

Obstruction can include crimes committed by judges, prosecutors, attorneys general, and elected officials in general. It is misfeasance, malfeasance or nonfeasance in the conduct of the office. Most commonly it is prosecuted as a crime for perjury by a non governmental official primarily because of prosecutorial discretion.

Notable examples

  • Bill Clinton was impeached by the United States House of Representatives in 1998 for obstruction of justice charges based on allegations Clinton lied about his relationship with Monica Lewinsky in a sworn deposition in the Paula Jones lawsuit. This made Clinton only the second U.S. president to be impeached after Andrew Johnson. He was later acquitted by the Senate.
  • Richard Nixon was being investigated for obstruction of justice for his alleged role in the cover-up of the break-in at the Watergate hotel during his re-election campaign in 1972. Although it is unknown whether Nixon had foreknowledge of his re-election committee's "dirty tricks" campaign against Democratic presidential candidates that led to the break-in, he was aware of it after the fact and paid money to keep the participants quiet.
  • Former Vice-Presidential adviser I. Lewis "Scooter" Libby was convicted of obstruction of justice in March 2007 for his role in the investigation of a leak to reporters by Richard Armitage of the identity of a CIA agent, Valerie Plame. His prison sentence was commuted by President George W. Bush in July 2007, so that Libby was no longer required to serve a two-and-a-half-year prison sentence, but was still required to pay a $250,000 fine, be recorded as a convicted felon, obey probation terms, and be disbarred. Donald Trump pardoned Libby on April 13, 2018.
  • Conrad Black was convicted of obstruction of justice in July 2007[2] 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. On May 15, 2019, he was granted a full pardon by Donald Trump "Trump pardons billionaire friend Conrad Black, who wrote a book about him". The Washington Post. 2019..
  • Barry Bonds was convicted of obstruction of justice on April 13, 2011 for his testimony in front of the grand jury during the BALCO steroid scandal.[3] The conviction was later overturned by an appellate court.[4]
  • 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.[5]

Obstruction trends

"Anticipatory obstruction of justice" has recently appeared on the horizon in cases such as US v. Wolff.[6] However, the operative section, 1519, passed in 2002, has thus far languished in quasi-obscurity. Titled “Destruction, Alteration or Falsification of Records in Federal Investigations and Bankruptcy,” the provision was passed under Section 802 of the Sarbanes–Oxley Act of 2002.

The text of the statute is relatively straightforward:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, 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.

Aside from Section 1519's 20-year maximum prison sentence (no small benefit to the government in big-dollar fraud loss cases such as Wolff), its primary appeal is that it uniquely removes certain key proof burdens from prosecutors’ collective shoulders.

Prosecutors charging violations of Section 1519 must still establish either of the following:

  • The accused knowingly did the obstructive act with the intent to affect the investigation or proper administration of any matter within the jurisdiction of any U.S. department or agency or any case filed under Title 11; or
  • The accused knowingly did the obstructive act at least “in relation to or in contemplation of any such matter or case”.

Not on the list, however, is the requirement that prosecutors demonstrate to the finder of fact which specific “matter or case” the accused attempted to obstruct. That is a significant benefit to the government.[7]

See also

Footnotes

  1. ^ "18 U.S. Code § 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy". LII / Legal Information Institute. Retrieved September 13, 2016.
  2. ^ Siklos, Richard (July 14, 2007). "Conrad Black Found Guilty in Fraud Trial". The New York Times. ISSN 0362-4331. Retrieved August 31, 2016.
  3. ^ "Barry Bonds convicted of obstruction of justice in performance-enhancing-drugs case". Los Angeles Times. April 13, 2011. Retrieved May 22, 2018.
  4. ^ "Barry Bonds conviction overturned". San Jose Mercury News.
  5. ^ "Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing". Journal of the American Psychiatric Association. Retrieved October 10, 2007.
  6. ^ "FindLaw's United States DC Circuit case and opinions". Findlaw. Retrieved January 20, 2016.
  7. ^ Funk, T. Markus (March 2011). "Charges that Sting: 'Honey Laundering' and the New Era of Obstruction Prosecutions" (PDF). Westlaw Journal - White Collar Crime. 25: 6.

External links

Arthur Andersen LLP v. United States

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), was a United States Supreme Court case in which the Court unanimously overturned accounting firm Arthur Andersen's conviction of obstruction of justice in the fraudulent activities and subsequent collapse of Enron, on the basis that the jury instructions did not properly portray the law Arthur Andersen was charged with breaking. As the Arthur Andersen name had become infamous and the firm had been obligated to cease audit activities, the business was unable to recover even after the conviction was overturned in its favor.

Barr letter

The Barr letter is a four-page letter sent in March 2019 from Attorney General William Barr to leaders of the House and Senate Judiciary Committees detailing the "principal conclusions" of the report of the Special Counsel investigation led by Robert Mueller into Russian efforts to interfere in the 2016 United States presidential election, allegations of conspiracy or coordination between Donald Trump's presidential campaign and Russia, and allegations of obstruction of justice.

Conrad Black

Conrad Moffat Black, Baron Black of Crossharbour, KCSG (born 25 August 1944), is a Canadian-born British former newspaper publisher and author. In 2007, he was convicted on four counts of fraud in U.S. District Court in Chicago. While two of the criminal fraud charges were dropped on appeal, a conviction for felony fraud and obstruction of justice were upheld in 2010 and he was re-sentenced to 42 months in prison and a fine of $125,000. In 2018, he wrote a glowing book about President Donald Trump. On May 15, 2019, he was granted a full pardon by Trump.Black controlled Hollinger International, once the world's third-largest English-language newspaper empire, which published The Daily Telegraph (UK), Chicago Sun-Times (U.S.), The Jerusalem Post (Israel), National Post (Canada), most of the leading newspapers in Australia and Canada and hundreds of community newspapers in North America, before controversy erupted over the sale of some of the company's assets.

Dismissal of James Comey

James Comey, the seventh Director of the Federal Bureau of Investigation (FBI), was dismissed by U.S. President Donald Trump on May 9, 2017. Comey had been criticized in 2016 for his handling of the FBI's investigation of the Hillary Clinton email controversy and in 2017 for the FBI's investigation of Russian interference in the 2016 U.S. elections as it related to possible collusion with the 2016 Donald Trump campaign.Trump dismissed Comey by way of a termination letter in which he stated that he was acting on the recommendation of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. In the following days, he gave numerous explanations of the dismissal that contradicted his staff and also belied the initial impression that Sessions and Rosenstein had influenced his decision. Trump publicly stated that he had already decided to fire Comey; it later emerged that he had written his own early draft of the termination letter, and had solicited the Rosenstein memo the day before citing it. He also stated that dismissing Comey relieved unnecessary pressure on his ability to engage and negotiate with Russia, due to Comey's "grandstanding and politicizing" the investigation. Trump was reportedly "enormously frustrated" that Comey would not publicly confirm that the president was not personally under investigation. After his dismissal, Comey publicly testified to the Congress that he told Trump, on three occasions, that he was not personally under investigation in the counterintelligence probe.Shortly after his termination, in a move that he hoped would prompt a special counsel investigation, Comey asked a friend to share excerpts from a memo he had written when he was FBI Director, recounting a private conversation with Trump in February 2017, with the press. According to Comey, Trump had asked him to "let go" of potential charges against former National Security Advisor Michael Flynn whom Trump had fired the day before. In light of the dismissal, the memo, and Comey's testimony to the Senate Intelligence Committee in June 2017, several media figures, political opponents and legal scholars said that Trump's acts could be construed as obstruction of justice, while others disagreed.Following Comey's dismissal, Rosenstein appointed former FBI Director Robert Mueller as special counsel to investigate into Russian meddling and related issues that Comey had supervised during his tenure.

Fred LaRue

Frederick Cheney "Fred" LaRue, Sr. (October 11, 1928 – July 24, 2004), was an aide in the administration of U.S. President Richard Nixon. He served a short prison sentence for his role in the Watergate break-in and the subsequent Watergate scandal and cover-up.

Oddly, LaRue had no rank, title, salary, or even listing in the White House directory. LaRue was present at an early meeting with his friend, United States Attorney General John N. Mitchell, at which the Watergate burglary was planned. Afterwards, LaRue assisted the cover-up, supervising the shredding of documents and the destruction of financial records.

H. R. Haldeman

Harry Robbins "Bob" Haldeman (October 27, 1926 – November 12, 1993) was an American political aide and businessman, best known for his service as White House Chief of Staff to President Richard Nixon and his consequent involvement in the Watergate scandal.

Born in California, Haldeman served in the Navy Reserves in World War II and attended UCLA. In 1949, he joined the J. Walter Thompson advertising agency, where he worked for 20 years as a prominent advertising executive in both Los Angeles and New York City. He made a name for himself early in Los Angeles social circles from his work as Chairman of the UCLA Alumni Association and a member of the University of California Board of Regents.

A long family association with the Republican Party and his own interest drew Haldeman to politics and he became acquainted with Nixon in the 1950s, for whom he developed both an intense respect and steadfast loyalty. He began as an advance man on President Dwight D. Eisenhower's reelection campaign in 1956, again worked as an advance man on Nixon's 1960 presidential campaign, and managed Nixon's 1962 run for Governor of California. When Nixon was elected President in 1968, he selected Haldeman as his Chief of Staff.

Haldeman is credited with implementing more significant changes to White House staffing systems and Executive Branch governance and operations than any Chief of Staff before him or since, and it is the "Haldeman system" that presidential administrations continue to operate on today. His intensity and no-nonsense management style earned him a reputation as a stern taskmaster who expected top-notch performance.After he left the Nixon administration in April 1973, Haldeman was tried on counts of perjury, conspiracy, and obstruction of justice for his role in the Watergate cover-up. He was found guilty and imprisoned for 18 months. Upon Haldeman's release, he returned to private life and was a successful businessman and real estate developer until his death from cancer in 1993 at the age of 67.

Impeachment of Bill Clinton

The impeachment of Bill Clinton, the 42nd President of the United States, was initiated in December 1998 by the House of Representatives and led to a trial in the Senate on two charges, one of perjury and one of obstruction of justice. These charges stemmed from a sexual harassment lawsuit filed against Clinton by Paula Jones. Clinton was subsequently acquitted of these charges by the Senate on February 12, 1999. Two other impeachment articles – a second perjury charge and a charge of abuse of power – failed in the House.Leading to the impeachment, Independent Counsel Ken Starr turned over documentation to the House Judiciary Committee. Chief Prosecutor David Schippers and his team reviewed the material and determined there was sufficient evidence to impeach the president. As a result, four charges were considered by the full House of Representatives; two passed, making Clinton the second president to be impeached, after Andrew Johnson in 1868, and only the third against whom articles of impeachment had been brought before the full House for consideration (Richard Nixon resigned from the presidency in 1974, while an impeachment process against him was underway).

The trial in the United States Senate began right after the seating of the 106th Congress, in which the Republican Party held 55 Senate seats. A two-thirds vote (67 senators) was required to remove Clinton from office. Fifty senators voted to remove Clinton on the obstruction of justice charge and 45 voted to remove him on the perjury charge; no member of his own Democratic Party voted guilty on either charge. Clinton, like Johnson a century earlier, was acquitted on all charges.

J. Irving Whalley

John Irving Whalley (September 14, 1902 – March 8, 1980) was a Republican member of the U.S. House of Representatives from Pennsylvania.

J. Steven Griles

James Steven "Steve" Griles (born December 13, 1947) was an American coal industry lobbyist and the United States Deputy Secretary of the Interior during the George W. Bush administration from July 12, 2001, until his resignation on December 7, 2004.

Griles held the second-ranking position at the United States Department of the Interior, ranking below only the Secretary of the Interior, at the time Gale Norton.

Griles "effectively was Interior's chief operating officer...and its top representative on Vice President Dick Cheney's energy task force. In 2007, he pleaded guilty to felony obstruction of justice in the Senate investigation of the Abramoff scandal, the top Bush administration official to do so. He was sentenced to a fine and 10 months imprisonment.

John Ehrlichman

John Daniel Ehrlichman (; March 20, 1925 – February 14, 1999) was counsel and Assistant to the President for Domestic Affairs under President Richard Nixon. Ehrlichman was an important influence on Nixon's domestic policy, coaching him on issues and enlisting his support for environmental initiatives.Ehrlichman was a key figure in events leading to the Watergate break-in and the ensuing Watergate scandal, for which he was convicted of conspiracy, obstruction of justice, and perjury and served a year and a half in prison.

Louis Wolfson

Louis Elwood Wolfson (January 28, 1912 – December 30, 2007) was a Wall Street financier and one of the first modern corporate raiders, labeled by Time Magazine as such in a 1956 article.

Louis Wolfson became a self-made millionaire before he was 29 years old.

He significantly contributed to the wealth of U.S. and global financial markets by creating the modern hostile tender offer, which laid the technical framework to the LBO.

In later years he was a major thoroughbred horse racing participant best known as the owner and breeder of 1978 American Triple Crown winner, Affirmed.

In 1967, he was convicted of selling unregistered shares and obstruction of justice for which he served nine months in a federal prison. The conviction eventually led to the 1969 resignation of Supreme Court Justice Abe Fortas, who first returned a $20,000 retainer to a Wolfson foundation.

Making false statements

Making false statements (18 U.S.C. § 1001) is the common name for the United States federal process crime laid out in Section 1001 of Title 18 of the United States Code, which generally prohibits knowingly and willfully making false or fraudulent statements, or concealing information, in "any matter within the jurisdiction" of the federal government of the United States, even by merely denying guilt when asked by a federal agent. A number of notable people have been convicted under the section, including Martha Stewart, Rod Blagojevich, Michael T. Flynn, Rick Gates, Scooter Libby, Bernard Madoff, and Jeffrey Skilling.This statute is used in many contexts. Most commonly, prosecutors use this statute to reach cover-up crimes such as perjury, false declarations, and obstruction of justice and government fraud cases.Its earliest progenitor was the False Claims Act of 1863. In 1934, the requirement of an intent to defraud was eliminated. This was to prosecute successfully, under the National Industrial Recovery Act of 1933 (NIRA), the producers of "hot oil", i.e. oil produced in violation of restrictions established by NIRA. In 1935, NIRA was declared unconstitutional by the Supreme Court.

Pursuant to the decision in United States v. Gaudin, the jury is to decide whether the false statements made were material, since materiality is an element of the offense.

Moshe Katsav

Moshe Katsav (Hebrew: מֹשֶׁה קַצָּב; born 5 December 1945) is an Israeli former politician  who was the eighth President of Israel from 2000 to 2007. He was also a leading Likud member of the Israeli Knesset and a minister in its cabinet. He was the second Mizrahi Jew to be elected to presidency (after Yitzhak Navon).

The end of his presidency was marked by controversy, stemming from allegations of rape of one female subordinate and sexual harassment of others. Katsav resigned the presidency in 2007 as part of a plea bargain. Katsav later rejected the deal with prosecutors and vowed he would prove his innocence in court. In an unprecedented case, on 30 December 2010, Katsav was convicted of two counts of rape, obstruction of justice and other charges. On 22 March 2011, in a landmark ruling, Katsav was sentenced to seven years in prison. Katsav appealed his conviction to the Supreme Court of Israel. On 10 November 2011, the Supreme Court affirmed Katsav's conviction and punishment.

On 7 December 2011, Katsav arrived at Maasiyahu Prison in Ramla to begin serving his seven-year sentence. He was released from prison, under restrictive conditions, on 21 December 2016, having served five years of his sentence.

Mueller Report

The Mueller Report, officially the Report on the Investigation into Russian Interference in the 2016 Presidential Election, is the official report documenting the findings and conclusions of Special Counsel Robert Mueller's investigation into Russian efforts to interfere in the 2016 United States presidential election, allegations of conspiracy or coordination between Donald Trump's presidential campaign and Russia, and allegations of obstruction of justice. The report was submitted to Attorney General William Barr on March 22, 2019, and a redacted version of the 448-page report was publicly released by the Department of Justice (DOJ) on April 18, 2019. It is divided into two volumes.

Volume I of the report concludes that Russian interference in the 2016 presidential election occurred "in sweeping and systematic fashion" and "violated U.S. criminal law". It lists two methods by which Russia attempted to influence the election. Firstly, a social media campaign by the Internet Research Agency (IRA) which supported the Trump presidential campaign, attacked the Hillary Clinton presidential campaign, and aimed to “provoke and amplify political and social discord". Secondly, Russian intelligence GRU conducted computer hacking and strategically released damaging material stolen from the Clinton campaign and Democratic Party organizations. The report identifies links between Trump campaign officials and individuals with ties to the Russian government, about which several persons connected to the campaign made false statements and obstructed investigations. During the investigation, the special counsel recommended the indictment of former Trump campaign chairman Paul Manafort and his former deputy Rick Gates, and they were found guilty of criminal offenses stemming from their prior lobbying work for the Ukrainian Party of Regions. However, the investigation did not establish that the campaign "coordinated or conspired with the Russian government in its election-interference activities" and did not pursue charges for others beyond Manafort and Gates under statutes governing conspiracy or foreign agents.Volume II of the report addresses obstruction of justice. The investigation intentionally took an approach that could not result in a judgment that Trump committed a crime. The Mueller team refrained from charging Trump because investigators abided by an Office of Legal Counsel (OLC) opinion that a sitting president cannot stand trial, and they feared that charges would affect Trump's governing and possibly preempt his impeachment. Meanwhile, investigators felt it would be unfair to accuse Trump of a crime without charges and without a trial in which he could clear his name. As such, the investigation "does not conclude that the President committed a crime"; however, "it also does not exonerate him", as investigators were not confident that Trump was innocent after examining his intent and actions. The report describes ten episodes where Trump could potentially have obstructed justice while president and one before he was elected, noting he privately tried to "control the investigation" in multiple ways, but mostly failed to influence it because his subordinates or associates refused to carry out his instructions. The report further states that Congress can decide whether Trump obstructed justice, as Congress has the authority to take action against a president in reference to potential impeachment proceedings.On March 24, Barr described the conclusions of the report to Congress in his letter, stating: "The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime", further stating that "Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense". On March 27, Mueller privately wrote to Barr, stating that the March 24 Barr letter "did not fully capture the context, nature, and substance of [the Mueller team's] work and conclusions", and that this led to "public confusion". Mueller asked Barr to release the report's introduction and executive summaries ahead of the full report; Barr declined, saying he preferred to avoid "piecemeal" release of part of the report before releasing a redacted version of the entire document. Justice Department officials described a March 28 call where Mueller expressed to Barr concerns about public misunderstandings of the obstruction investigation due to media coverage. On May 1, Barr testified that he "didn't exonerate" Trump on obstruction; and that neither he nor Rosenstein had reviewed the underlying evidence in the report.

Reed Slatkin

Reed Eliot Slatkin (January 22, 1949 – June 23, 2015) was an initial investor and co-founder of EarthLink and the perpetrator of one of the largest Ponzi schemes in the United States since that conducted by Charles Ponzi himself.Slatkin had been an ordained Scientology minister since 1975. Around 1984 he changed from being a full-time minister to becoming a self-employed investor, and many of his investment clients and victims were also Scientologists.

Roy Frankhouser

Roy Everett Frankhouser, Jr. (also spelled "Frankhauser"), (November 4, 1939 – May 15, 2009) was a Grand Dragon of the Ku Klux Klan, a member of the American Nazi Party, a government informant, and a security consultant to Lyndon LaRouche. Frankhouser was reported by federal officials to have been arrested at least 142 times. In 2003 he told a reporter, "I'm accused of everything from the sinking of the Titanic to landing on the moon." He was convicted of federal crimes in at least three cases, including dealing in stolen explosives and obstruction of justice. Irwin Suall, of the Anti-Defamation League, called Frankhouser "a thread that runs through the history of American hate groups".

Steve Rubell

Steve Rubell (December 2, 1943 – July 25, 1989) was an American entrepreneur and co-owner of the New York disco Studio 54.

Tampering with evidence

Tampering with evidence, or evidence tampering, is an act in which a person alters, conceals, falsifies, or destroys evidence with the intent to interfere with an investigation (usually) by a law-enforcement, governmental, or regulatory authority. It is a criminal offense in many jurisdictions.

Tampering with evidence is closely related to the legal issue of spoliation of evidence, which is usually the civil law or due process version of the same concept (but may itself be a crime). Tampering with evidence is also closely related to obstruction of justice and perverting the course of justice, and these two kinds of crimes are often charged together. The goal of tampering with evidence is usually to cover up a crime.

Thomas Finneran

Thomas Michael Finneran (born January 27, 1950), is a radio talk host and former Massachusetts Democratic politician who served as Speaker of the Massachusetts House of Representatives from April 1996 to September 2004. He represented the district that included parts of the Boston neighborhoods of Dorchester, Mattapan and Hyde Park as well as parts of the town of Milton for 26 years. He resigned and accepted the position of President of the Massachusetts Biotechnology Council. He subsequently resigned in 2007 after pleading guilty to criminal obstruction of justice, in a court case about his testimony about his influence and participation in the redistricting process following the 2000 census. He was disbarred in 2010 (retroactive to January 23, 2007). From February 2007 to May 2012, he co-hosted a talk radio morning drive slot with WRKO.

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