Vail Law: What constitutes obstruction of justice? (column)
December 25, 2018
It's kicked around a lot lately, like an old tin can by the toe of new Doc Martens. But what, exactly, is "obstruction"? What are its guts and sinew made of? What legal blood courses through its veins?
A little context first:
As you know, one Robert Mueller and his Merry Band of Interlocutors have been investigating the president and all the president's men. Despite the president's repeated declamations of "witch hunt" heads, like at the Place de la Revolution, have begun to roll. Flynn, Cohen, Gates, Manafort, Papadopoulos; the list goes on.
Although Mueller has played 'em pretty close to the vest, the quarry that he and his merry band are after clearly seems to be collusion and obstruction.
“Next, in order to obstruct, one must actually do something, must take some act or at least attempt to do so. Specifically, one must make a threat by some form of communication and by so doing, influence, obstruct or impede, or try to do so, in order to influence, obstruct or impede, the due administration of law.”
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Specifically, what Special Counsel Mueller was tasked with by the Justice Department was to focus on the 2016 presidential election. That investigation includes any possible links or coordination between the Trump presidential campaign and the Russian government (read this "collusion"), "and any matters that arose or may arise directly from the investigation." One path down which that investigation has pointed reportedly includes potential obstruction of justice by Trump and others.
Let's take it first in its plain English meaning. To "obstruct" means "to block or close up by an obstacle"; "to hinder from passage, action, or operation"; "to impede." I like the first and last definitions best. To "obstruct" means to trip or throw a shoulder in the way. So-and-So is trying to get from point A to B and, by hook, crook or tackle below the knees, you, by God, intend stop him!
Let's now sprinkle in legal music to this score.
Obstruction of justice is an attempt to interfere with the administration of the courts, the judicial system or law enforcement officers. It may include tampering with evidence, intimidating potential witnesses, hiding evidence, or interfering with an investigation or arrest. It is something a person does to impede the administration of a court process or proper discharge of a legal duty.
The federal statute dealing with obstruction of justice may be found at 18 U.S.C. (i.e., Unites States Code) Section 1503 which defines "obstruction of justice" as an act that "corruptly or by threats of force, or by any threating letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of law.
Let's pick apart this legal carcass.
One obstructs justice when he or she has a specific intent to hamper or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, that person must not only have the specific intent to obstruct the proceeding, but he or she must know (1) that a proceeding was actually pending at the time; and (2) there must be a connection between the endeavor to obstruct justice and the proceeding, and the person must have knowledge of this connection.
In order to obstruct justice, one must act "corruptly or by threats of force." You'll note this is disjunctive. One or the other but not both; by corruption or by force.
When one acts "corruptly" it contemplates an abuse of the public trust. Corruption implicates Illegality; a vicious and fraudulent intention to evade the prohibitions of the law. It is the act of an official or fiduciary who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.
As noted, above, this first line is disjunctive. To "obstruct" justice requires either corruption or "threat of force."
Next, in order to obstruct, one must actually do something, must take some act or at least attempt to do so. Specifically, one must make a threat by some form of communication and by so doing, influence, obstruct, or impede, or try to do so, in order to influence, obstruct, or impede, the due administration of law. Will a Tweet suffice? An interview with Lester Holt? Some other form of communication meant to throw a shoulder in the way of legal process? Well, in a word, "Uh-huh."
Lastly, to obstruct, one must interfere or try to interfere with the due administration of justice, which means that one must try to divert justice from following its otherwise normal course. To be convicted of the crime, one must take these actions both knowingly—that is with the specific intent to knock the administration of justice sideways—and knowing that repercussions, like ripples widening from a stone dropped in the pond of justice, would likely flow from your act.
Will Trump or others near him be implicated? Only time and Robert Mueller will tell. If the answer is ultimately "yes," Trump, like Nixon before him, will likely find himself isolated in the White House with the weight of public opprobrium weighing down upon his sinking presidency and nowhere to set his sails but out of Washington.
The New Year should bring new insights.
Buckle your seatbelt and stay tuned.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.