Obstructing an official proceeding

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Corruptly obstructing, influencing, or impeding an official proceeding is a felony under U.S. federal law. It was enacted as part of the Sarbanes–Oxley Act of 2002 as a reaction to the Enron scandal, and closed a legal loophole on who could be charged with evidence tampering by defining the new crime very broadly. It later became known for its use as a charge against defendants associated with the 2021 U.S. Capitol attack for attempting to obstruct that year's Electoral College vote count.

Legal basis

The crime is codified as 18 U.S.C. § 1512(c)(2). The relevant subsection reads:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The term "official proceeding" is defined in 18 U.S.C. § 1515(a)(1) to include proceedings before federal judges, Congress, federal government agencies, and regulators of insurance businesses.

History

Enactment

Representative Mike Oxley and President George W. Bush shake hands at the signing of the Sarbanes–Oxley Act of 2002, which created the crime of obstructing an official proceeding.

The provision was enacted by Section 1102 of the Sarbanes–Oxley Act of 2002 as a reaction to the Enron scandal, where Enron's auditor Arthur Andersen had destroyed potentially incriminating documents.[1][2][3][4] It added a new subsection to the Victim and Witness Protection Act of 1982, which had already defined the term "official proceeding" and used it in describing other crimes.[5] In a signing statement, President George W. Bush stated that the term "corruptly" would be construed as requiring proof of a criminal state of mind, in order to avoid infringing on the constitutional right to petition.[6]

Prior to the Sarbanes–Oxley Act, anyone who corruptly persuaded others to destroy, alter, or conceal evidence could be prosecuted, but the individuals actually performing the act, or individuals acting alone, could not be prosecuted.[3][7] The new provision closed this loophole by defining the new crime very broadly.[4][7] The case Arthur Andersen LLP v. United States, which was prosecuted under an older subsection of the law, resulted in Arthur Andersen's conviction being overturned by the Supreme Court in 2005 because flawed jury instructions did not account for that subsection's requirement that the action be taken not only "corruptly" but "knowingly".[8]

Use prior to 2021

In the 2010s, some examples of convictions for obstructing an official proceeding included an associate of the Colombo crime family who obstructed a grand jury investigation,[9] a teacher who tipped off drug dealers that they were under investigation using information from a relative who was a detective,[10] and a former tour bus company executive who concealed and instructed subordinates to destroy documents sought in a federal antitrust investigation.[11]

In 2019, Roger Stone was convicted of obstructing an official proceeding as part of the Mueller Special Counsel investigation, for lying to the U.S. House Committee on Intelligence and encouraging another witness to lie for him.[12][13] Stone was later pardoned by President Donald Trump.[14]

Obstructing an official proceeding is one of the charges in United States v. Joseph, a 2019 case where a Massachusetts state court judge and court officer helped a state court defendant evade a U.S. Immigration and Customs Enforcement agent by allowing the defendant to leave a court hearing through a rear door of the courthouse.[15]

2021 U.S. Capitol attack

Rioters who entered the Senate chamber were among those more likely to be charged with obstructing an official proceeding, a felony, unlike others who were charged only with misdemeanors.

As of December 2021, 270 out of over 690 defendants associated with the 2021 U.S. Capitol attack had been charged with obstructing an official proceeding.[1] It tended to be used with defendants who had entered the Senate chamber or the offices of Congress members, or members of groups such as the Oath Keepers, Proud Boys, and Three Percenters who were alleged to have prepared for violence in advance. Those who entered other areas of the Capitol were typically charged only with misdemeanors such as entering a restricted federal building, or parading, demonstrating, or picketing in the Capitol.[1][2] For those charged with a felony, prosecutors preferred an obstructing an official proceeding charge in most cases, rather than insurrection or seditious conspiracy charges which are harder to prove and were considered to have more potential to be politically incendiary.[1]

Those who have pleaded guilty to obstructing an official proceeding include "QAnon Shaman" Jacob Chansley,[1] Olympic medalist Klete Keller,[16] and musician Jon Schaffer.[17] On March 8, 2022, in the first criminal trial of a Capitol attack defendant, Guy Reffitt became the first to be convicted of obstructing an official proceeding, along with other charges.[18] In November 2022, Stewart Rhodes and four other members of the Oath Keepers were convicted of obstructing an official proceeding along with other crimes.[19]

Applicability dispute

Some defendants argued that, given the circumstances of its passage, the law should apply only to proceedings involving the administration of justice where evidence is being presented, and not the Electoral College vote count as an administrative and ceremonial event.[1][20] Although two federal judges of the District Court for the District of Columbia initially expressed concerns in court about the law's use,[1][2] by March 2022, they and eight other federal judges had rejected challenges to the obstruction charge, finding that the law had been properly invoked and was not unconstitutionally vague.[1][21][22][23]

However, on March 7, Carl J. Nichols became the first federal judge to rule that the law was not applicable to the Capitol attack, on the basis that the word "otherwise" in the statute required that the conduct must involve "some action with respect to a document, record, or other object".[23][24] At least two other district court judges subsequently criticized Nichols' reading of the statute in their own rulings, and in August 2022, Nichols' rulings on three such defendants was appealed to the Court of Appeals for the District of Columbia Circuit.[25][26][27] The hearing was scheduled for December 12, 2022.[28]

References

  1. ^ a b c d e f g h Parloff, Roger (December 14, 2021). "Government Wins Key Ruling on Issue Affecting Hundreds of Capitol Riot Cases". Lawfare. Retrieved January 15, 2022.
  2. ^ a b c Hsu, Spencer S. (September 8, 2021). "Second U.S. judge questions constitutionality of lead felony charge against Oath Keepers in Capitol riot". The Washington Post. ISSN 0190-8286. Retrieved January 15, 2022.
  3. ^ a b "Field Guidance on New Criminal Authorities Enacted in the Sarbanes-Oxley Act of 2002 (H.R. 3763) Concerning Corporate Fraud and Accountability". U.S. Department of Justice. August 1, 2002. Retrieved January 15, 2022.
  4. ^ a b Perino, Michael A. (2002). "Enron's Legislative Aftermath: Some Reflections on the Deterrence Aspects of the Sarbanes-Oxley Act of 2002". SSRN Electronic Journal. doi:10.2139/ssrn.350540. ISSN 1556-5068.
  5. ^ "18 U.S. Code § 1512 - Tampering with a witness, victim, or an informant". Cornell Law School. Retrieved January 15, 2022.
  6. ^ Bush, George W. (July 30, 2002). "Statement on Signing the Sarbanes-Oxley Act of 2002". The American Presidency Project. Retrieved January 15, 2022.
  7. ^ a b Wilbur A., Glahn, III (January 1, 2002). "The Sarbanes-Oxley Act: New Criminal Liability for Destruction of Corporate Documents". McLane Middleton. Retrieved January 15, 2022.{{cite web}}: CS1 maint: multiple names: authors list (link)
  8. ^ Greenhouse, Linda (May 31, 2005). "Justices Unanimously Overturn Conviction of Arthur Andersen". The New York Times. ISSN 0362-4331. Retrieved January 15, 2022.
  9. ^ "Colombo Family Soldier Sentenced to 50 Years in Prison". U.S. Federal Bureau of Investigation. April 28, 2014. Retrieved January 15, 2022.
  10. ^ McMahon, Paula (April 4, 2014). "Broward elementary school teacher admits she alerted drug dealers to investigation". South Florida Sun Sentinel. Retrieved January 15, 2022.
  11. ^ Kully, David C.; Fuentes, Amy L. (April 6, 2017). "Obstruction Sentence Underscores Importance of Compliance with Government Process". Holland & Knight Regulatory Litigation Blog. Retrieved January 15, 2022.
  12. ^ Prokop, Andrew (November 15, 2019). "Roger Stone was just found guilty on all counts". Vox. Retrieved January 15, 2022.
  13. ^ Shafer, Jack. "Week 88: Did Stone's Indictment Finally Tie Trump's Campaign to Russia?". Politico Magazine. Retrieved January 15, 2022.
  14. ^ Haberman, Maggie; Schmidt, Michael S. (December 24, 2020). "Trump Gives Clemency to More Allies, Including Manafort, Stone and Charles Kushner". The New York Times. ISSN 0362-4331. Retrieved January 15, 2022.
  15. ^ "United States District Court District Of Massachusetts: United States Of America v. (1) Shelley M. Richmond Joseph and (2) Wesley Macgregor, defendants". U.S. Department of Justice. April 25, 2019. Retrieved January 15, 2022.
  16. ^ Draper, Kevin (September 29, 2021). "Klete Keller, a 3-Time Olympian, Pleads Guilty in Capitol Riot Case". The New York Times. Retrieved September 29, 2021.
  17. ^ Williams, Pete (April 16, 2021). "Prosecutors secure first guilty plea in Capitol riot cases". NBC News. Retrieved January 15, 2022.
  18. ^ Feuer, Alan (March 8, 2022). "Texas Man Convicted in First Jan. 6 Trial". The New York Times. ISSN 0362-4331. Retrieved March 9, 2022.
  19. ^ "Leader of Oath Keepers and Oath Keepers Member Found Guilty of Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach". U.S. Department of Justice. November 29, 2022. Retrieved November 30, 2022.
  20. ^ Kanefield, Teri (February 15, 2022). "Perspective | Jan. 6 defendants are raising a creative defense. It isn't working". The Washington Post. ISSN 0190-8286. Retrieved February 17, 2022.
  21. ^ Swanson, Ian (December 21, 2021). "Federal judge rules against Oath Keepers, upholding felony charge". The Hill. Retrieved January 15, 2022.
  22. ^ Sarnoff, Marisa (January 21, 2022). "Sixth Federal Judge Rejects Attempt to Dismiss Jan. 6 Federal Obstruction Charge, This Time Against 'Murder the Media' Duo". Law & Crime. Retrieved January 24, 2022.
  23. ^ a b Sarnoff, Marissa (March 8, 2022). "Federal Judge Departs from Rulings by 10 Peers, Tosses Obstruction Charge in Jan. 6 Case". Law & Crime. Retrieved June 14, 2022.
  24. ^ Hsu, Spencer S.; Jackman, Tom; Weiner, Rachel (March 8, 2022). "U.S. judge dismisses lead federal charge against Jan. 6 Capitol riot defendant". Washington Post. ISSN 0190-8286. Retrieved March 9, 2022.
  25. ^ Fischer, Jordan (June 22, 2022). "Justice Department asks appeals court to overturn judge who dismissed Capitol riot charges". WUSA 9. Retrieved June 23, 2022.
  26. ^ Fischer, Jordan (August 8, 2022). "DOJ appeals 'absurd' ruling, wants felony charges reinstated in Jan. 6 cases". WUSA 9. Retrieved August 10, 2022.
  27. ^ DOJ Appellant Brief in Joseph Fischer, Edward Lang and Garrett Miller Cases. August 8, 2022. Retrieved August 9, 2022 – via Internet Archive. {{cite book}}: Cite uses deprecated parameter |authors= (help)
  28. ^ Fischer, Jordan (October 27, 2022). "Judge dismisses false statement count against former DEA agent charged in Capitol riot". WUSA. Retrieved November 30, 2022.
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