So, uh… What is Obstruction of Justice?

I’ve been hearing a lot about “obstruction of justice” lately. But when I sat down to think about it, I didn’t really know what it was, legally speaking. I’d read about it in cases, and I’d, of course, seen it on Law & Order, but what specifically were the elements for establishing a federal charge of obstruction of justice?

As I listened to James Comey’s testimony, I thought, what would this look like to the eyes of a jury and judge, who are only to consider the law and evidence that are presented to them. What would it look like to eyes that had not been influenced by the partisan pundits, many of whom hold their opinions before they’ve even heard the evidence?

In truth, I wanted to make up my own mind, free from the vacuous talking heads and poorly reasoned opinion pieces (although, some are good). So, during my lunch break yesterday, I spent about 45 minutes researching the legal landscape on obstruction of justice, seeking to answer the questions floating around in my head as I listened to the testimony.

To be efficient, I decided to limit these legal questions to a single issue: Could the President’s alleged statement “I hope you … can let this go” constitute obstruction of justice?

So what did I do when I found myself facing an interesting legal question? I did what I always do, I ran to Fox News (just kidding.) I consulted the relevant statute and accompanying court opinions. After a quick search, Google presented a list of results, from which I learned that there are, generally speaking, two different obstruction of justice statutes: 18 U.S.C. §1503 and §1505. I’ll skip ahead and tell you that §1505 is the statute that likely applies here. United States v. Aguilar, 115 S.Ct. 2357 (1995). Importantly, however, courts appear to interpret the two statutes similarly.

We’ll get to the statute in a minute, but I can tell you that like most statutes, it’s not the pinnacle of clarity. So, what do I usually do when I want to better understand a complex legal issue? Well, the nice thing about having so many lawyers in America is that someone has usually written a treatise (academic, not partisan) on whatever issue you’re researching. And to allay any fears of “media bias” or “fake news,” I went straight to the U.S. Department of Justice’s U.S. Attorney Manual on “Obstruction of Justice.” I think you’d be hard-pressed to find a less “biased” compendium than the Executive Branch’s own thoughts on the matter.

The Law

So, what does the statute say? Here are the relevant parts (I’ve bolded the more relevant parts), which make it a crime for:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States….

Seem straightforward? Well, what does it mean? Is intent required? What constitutes “endeavoring”? What does “corruptly” mean?

Well, Congress gave us the definition to only one of those words: “Corruptly” means “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement….” 18 U.S.C. § 1515(b) (relevant words in bold).

Let’s rephrase and rearrange § 1505 into three elements so that it reads a little easier:

First, we need to have a pending Department or Agency proceeding;

Second, we need to have someone acting corruptly: “acting with an improper purpose, personally or by influencing others;”

Third, we need to have that person (1) influencing, obstructing, or impeding OR (2) endeavoring to influence, obstruct, or impede that proceeding.

The first element seems to be straightforward; it’s the second two that are a bit more vague. Specifically, what does it mean for someone to “corruptly influence, obstruct…” or “endeavor” to do those things?

And the truth is, the case law isn’t clear either. In short, some courts have required a specific intent to do these things, while others say it’s sufficient that a defendant acted such that “influencing, obstructing, or impeding” was a reasonably foreseeable result of their actions. (See U.S. Attorneys Criminal Resource Manual, at 1723–24.)The Supreme Court has commented — but not held — that conduct might rise to the level of obstruction of justice if such obstruction was the “natural and probable effect” of interfering with the administration of justice. (Id.)

But those cases appear to be more straightforward cases: someone hid evidence from the IRS or intimidated a witness in a criminal trial. Add the fact that this is a highly politicized debate involving the President, and it becomes even murkier. I’m sure there’s constitutional issues that I surely don’t have time to investigate concerning the Presidential appointment/removal privileges and his ability to or proscription from interfering in investigations.

So for our purposes, let’s look quickly at the evidence, and then apply the law to that evidence.

The Evidence

Now, what are the relevant facts, as alleged.

(1) Michael Flynn was allegedly under criminal investigation by the FBI.

  • Source: James Comey. However, this would seem to be an easily verifiable (or refutable) fact that could be resolved by the FBI itself.

(2) The President allegedly made a statement that boils down to: “I hope you can see your way clear to letting this go, to letting Flynn go.”

  • Source: James Comey. It is unclear at this time whether this information can be corroborated by other sources.
  • Comey made a contemporaneous, written recording of this conversation. In a courtroom, the fact that Comey made such a recording would likely allow Comey’s written recording to be submitted as evidence.

(3) The rest of the evidence is circumstantial; it’s shaky, but it’s there. There’s the context of these events: the timing of the president’s statements, the need to tell Comey the above statement in private, the subsequent firing of Comey, and the (perhaps weak) inference that the President would not have made the statement if he had not intended to effect a result. Counter to that, there’s similar facts that cut the other way. There’s no smoking gun, but it’s not a blank crime scene either.

Applying the Law to the Facts

Trial lawyers love to use checklists. So, if I were in trial, I’d put a big poster board up in front of the jury that lists the elements of the statute, with a checkbox next to each element. And I’d put on my best trial lawyer routine and say something like, “Like a lot of you all (or y’all if I’m in the South), my momma raised me to never make a promise if I didn’t think I could keep it. Now, I made you all a promise that I was going to put a checkmark in all those boxes and if I didn’t keep my promise, then you have to hold me accountable. So now what I’m going to ask you to do is to put a checkmark in each one of those boxes too. But, don’t just do it because I’m telling you to. Do it because that’s what the evidence shows.”

So, let’s look at the check boxes. And note that I’m not arguing a side here, I’m trying to raise all of the evidence and accompanying questions. You could just as easily change a few words around, pepper in some jabbing arguments about reasonable doubt (or lack thereof), and have a pretty compelling argument for either side.

First, was there an department or agency proceeding? It seems likely that the investigation of Flynn would qualify. This is something that seems verifiable and would likely be decided by a judge, as a matter of law, before trial.

Second, did the defendant influence, obstruct, or impede or endeavor to do any of these things with respect to this investigation?

That’s a tough question. We heard Mr. Comey say that the President may have done exactly those things with respect to the investigation when he asked him to “let this go.” Is the testimony reliable? Does that constitute “endeavoring to influence, obstruct, or impede”? Is that enough?

And third, was this done corruptly?

Equally as tough as the second question. There’s some inferences to be made from the evidence; you could argue that the President was attempting to “improperly…influence another” with his statement to Mr. Comey and the surrounding context, but nothing I’d want to hang my hat on.

As judges often tell juries: You are to consider each piece of evidence and you may give that evidence as little or as much weight as you deem appropriate. But more importantly, you are not to form any conclusions until you’ve heard all of the evidence to be presented.

My point is this: at the present time, I don’t think either side has presented a case that clearly and definitively proves obstruction or an absence of obstruction.

As for me. I kind of agree with James Comey’s answer to the question: “I don’t know. That’s Bob Mueller’s job to sort that out.” Plus, I have to get back to work.

Criminal Resource Manual: