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The Crime of Obstruction of Justice

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Obstruction of Justice

            On July 27, 1974, the House Judiciary Committee voted to impeach President Richard Nixon for his role in the Watergate scandal, which led to his resignation before he could be impeached.[1] The first paragraph of Article 1 of the Articles of Impeachment alleged that President Nixon violated his constitutional oath to preserve, protect, and defend the Constitution of the United States and that he had “prevented, obstructed, and impeded the administration of justice.”[2] Nixon had allegedly done this by “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States and the Federal Bureau of Investigation” when he tried to cover up, conceal, and protect agents of the Committee for the Re-election of the President who were responsible for breaking into the headquarters of the Democratic National Committee on June 17, 1972.[3]

            Obstruction of justice is an offense that criminalizes any conduct in which a person willfully interferes with the orderly administration of justice.[4] Impeding, influencing, or obstructing any legal proceeding before a federal agency, court, or even Congress, could all potentially be considered obstruction of justice.

            Federal statutes criminalize an array of conduct as “obstruction of justice.” 18 U.S.C. Sections 1501 through 1521 provides the litany of activities that can be considered obstruction of justice. These sections identify more than 20 types of obstruction, such as influencing or injuring an officer or juror, obstruction of criminal investigations, tampering with a witness, victim, or an informant.  

            The elements required for a conviction on an obstruction of justice charge differ slightly by statute. For example, the government must prove the following elements for a conviction under 18 U.S.C. § 1503, which protects jurors as well as judicial officers from influence or injury:[5]

·         There was a pending federal judicial proceeding;

·         The defendant knew of the proceeding; and

·         The defendant had corrupt intent to interfere with or attempted to interfere with the proceeding.

            For a person to be found violating 18 U.S.C. § 1512, which protects witnesses, victims, and informants from any type of tampering, the government must prove that the defendant:[6]

·         The defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion toward another person; and

·         The defendant had the intent to influence, delay, or prevent testimony or cause any person to withhold a record, object, document, or testimony from an official proceeding

            The two elements that the government must satisfy in any obstruction of justice allegation are the “knowledge” and “proceeding” components. The “knowledge” or “intent” element requires that the actor proceed “knowingly … with intent to impede, obstruct, or influence.[7] This language requires the prosecution to prove consciousness of wrongdoing and the person charged with obstruction of justice must have acted with intent and must have been aware that he was interfering or impeding the administration of justice.[8] An 1893 case, Pettibone v. United States, that continues to help courts interpret the knowledge element, the United States Supreme Court stated that “general malevolence has no applicability” to obstruction of justice claims.[9] Someone accused of obstruction of justice must have specific intent and knowledge that he was interfering with a proceeding.

            Now let’s move to the “judicial proceeding” element. There doesn’t necessarily need to be a trial in court for someone to take part in obstruction of justice.[10] Courts have refrained from developing a “rigid rule” to determine when a proceeding is pending. It’s a fluid determination and applicable to some activities, but not applicable to others. Courts have repeatedly held that interfering with a police investigation alone is not enough to trigger an obstruction of justice statute.[11] This is because a police investigation doesn’t arise to the level of “judicial” proceeding.[12] A grand jury investigation, however, which is an investigation to determine whether probable cause exists to believe that someone has committed a crime,[13] does qualify as a pending judicial proceeding[14] because there is meaningful judicial supervision and extensive court involvement in the grand jury proceeding.[15]

            Obstruction of justice under federal statutes is punishable by up to five years in prison. However, the punishment imposed will vary depending on the applicable statute. The best way to really understand this is to examine several obstruction of justice statutes and compare the punishments associated with these crimes. 18 U.S.C. § 1505, which criminalizes obstruction of proceedings before departments, agencies, the House of Representatives and Congressional committees, is punishable by a fine and imprisonment of up to five years.[16] 18 U.S.C. § 1503, the statute that classifies influencing or injuring a juror or an officer of the court, makes that conduct punishable by a fine and a prison sentence of a maximum of ten years.[17]

Like the federal government, states broadly define obstruction of justice to include tampering with evidence, jurors, public records, or witnesses and victims as well as refusing to aid law enforcement officials.[18] Most states have also classified obstruction of justice as a felony. For example, in Illinois, destroying evidence, which is a form of obstruction of justice, is a Class 4 Felony punishable by up to three years in prison and a $25,000 fine.[19] As another example, In Washington state, the crime of “obstructing a law enforcement officer” is a gross misdemeanor and punishable by a fine of up to $5,000 and imprisonment in a county jail for a maximum of 364 days.[20]

Federal and state statutes account for the fact that so many different types of behavior can be viewed as “obstructing” justice. The common thread in these laws that specifically proscribe destroying, falsifying or secreting evidence, secreting witnesses, or influencing witnesses to testify falsely is that they protect against deliberate efforts to undermine the truth-seeking process.


[1] Jason Waggoner, “Crime and Ambition: Richard Nixon and Watergate,” http://ashbrook.org/publications/respub-v5n1-waggoner/, (April 1994).

[2] Articles of Impeachment Adopted by the House of Representatives Committee on the Judiciary

July 27, 1974, http://www.presidency.ucsb.edu/ws/?pid=76082.

[3] Andrew McCarthy, “The President’s Power to End a Criminal Investigation,” http://www.nationalreview.com/article/447801/obstruction-justice-president-can-end-criminal-investigation, (May 20, 2017).

[4] Eliza Relman, “Trump is reportedly being investigated for obstruction of justice — here's what that is,” http://www.businessinsider.com/what-is-obstruction-of-justice-donald-trump-impeachment-nixon-clinton-news-2017-6, (June 15, 2017).

[5] 18 U.S.C. § 1503

[6] Jeffrey Kallstrom, “Obstruction of Justice,” 38 Am. Crim. L. Rev. 1081, (2001).

[7] Samuel Buell, “Adjudicating the Guilty Mind: On the Mental State of Consciousness of Wrongdoing,” 75 Law & Contemp. Prob. 133, (2012).

[8] United States v. Stevens, 771 F. Supp. 2d 556, (2011).

[9] Pettibone v. United States, 148 U.S. 197, (1893).

[11] United States v. Davis, 183 F.3d 231, (1999).

[12] United States v. Brown, 688 F.2d 596, (1982).

[13] Caroline Kenny, “What is a grand jury?,” http://www.cnn.com/2017/08/03/politics/what-is-a-grand-jury/index.html, (August 4, 2017).

[14] United States v. Walasek, 527 F.2d 676, 678 (3d Cir. 1975).

[15] Id.

[16] 18 U.S.C. § 1505.

[17] 18 U.S.C. § 1503.

[18] John Decker, “The Varying Parameters of Obstruction of Justice in American Criminal Law,” 65 La. L. Rev. 49, (2004).