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The commentariat is now absorbed with the – frankly premature – question of whether President Trump can commit the crime of “obstruction of justice.” Luminaries such as Eric Posner and Daniel Hemel of the University of Chicago Law School say he can. Alan Dershowitz of Harvard Law School and former House Speaker Newt Gingrich say he can’t.

Posner and Hemel’s analysis in the New York Times is closer to right, but Dershowitz makes an important point and the issue is far more complex than it appears. Sorting it out requires understanding the interaction of substantive criminal law, rules and norms governing prosecutorial discretion, separation of powers doctrine, and the law of impeachment.

In this and subsequent posts, I will walk through each of these issues.

In federal criminal law, the term “obstruction of justice” refers to violations of a number of statutes. The two critical ones for our purposes are 18 United States Code, Section 1503 and 18 United States Code, Section 1512. In this post, I consider several technical points about Section 1503 obstruction. In the next post, I will examine Section 1512 obstruction. In the third post, I will discuss the key to both 1503 and 1512 obstruction – the requirement that the defendant act “corruptly.”

Section 1503 Obstruction:

A violation of Section 1503 occurs if a defendant “corruptly … endeavors to influence, intimidate, or impede any … officer in or of any court of the United States, or … corruptly… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The last phrase is the so-called “omnibus clause” and has been construed quite broadly by federal courts.

Nonetheless, the statute is subject to several technical limitations not immediately obvious from its text.

First, an obstruction charge may only be brought against a defendant who obstructed a “pending judicial proceeding.” See, e.g., United States v. Neal, 951 F.2d 630 (5th Cir. 1992); United States v. Guzzino, 810 F.2d 687 (7th Cir.), cert. denied, 481 U.S. 1030 (1987); United States v. Capo, 791 F.2d 1054, 1070 (2d Cir. 1986), reh’g granted on other grounds, 817 F.2d 947 (2d Cir. 1987) (en banc); United States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262, 1265 (6th Cir. 1974).

The term “judicial proceeding” includes cases that have been commenced before judges, and also, critically, grand jury investigations. United States v. Aguilar, 515 U.S. 593 (1995); United States v. Wood, 958 F.2d 963, 975 n. 18 (10th Cir.1992); United States v. Campanale, 518 F.2d 353, 356 (9th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1050 (1976).

Therefore, it would not be obstruction of justice under Section 1503 to interfere with a federal civil investigation that had not yet resulted in a court proceeding or a criminal investigation in which no grand jury had been or ever would be empaneled. That said, any federal criminal investigation will, if successful in securing evidence sufficient to establish probable cause of a federal felony, eventually involve a grand jury, if only because a grand jury indictment is a constitutional prerequisite to a federal felony prosecution. Ex parte Wilson, 114 U.S. 417 (1885). Therefore, in a criminal case where the alleged obstruction occurs before any charges have been filed, the operative question is whether there is a “pending judicial proceeding.”

A judicial proceeding is pending if a grand jury has been empaneled, has been advised of the existence of the investigation at issue, and has issued subpoenas in the matter. United States v. Nelson, 852 F.2d 706 (3d Cir. 1988). Even if Justice Department attorneys have (as they are entitled to do) issued subpoenas under the authority of and returnable to a particular grand jury, but have not yet informed the grand jurors of these actions, a judicial proceeding may be deemed pending for purposes of Section 1503. United States v. Steele, 241 F.3d 302, 305 (3d Cir. 2001); United States v. Simmons, 591 F.2d 206, 209-10 (3d Cir. 1979). Certainly this is true if the prosecutor contemplates presenting evidence produced in response to the subpoena to the grand jury at some future point. Id. at 210; United States v. Nelson, 852 F.2d 706 (3d Cir. 1988).

In sum, the absolute minimum requirement for a Section 1503 obstruction prosecution seems to be that a grand jury was empaneled at the time of the allegedly obstructive behavior and that one or more subpoenas relating to the investigation were issued under that grand jury’s authority.

Second, the Supreme Court holds that under Section 1503, “The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” United States v. Aguilar, 515 U.S. 595 (1995). Even when there is a “pending judicial proceeding” in the form of an ongoing grand jury investigation, several courts have said that the defendant must know that a grand jury investigation – as opposed to a general inquiry by, say, the FBI or the IRS — is occurring. United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996) (FBI), United States v. Fassenacht, 332 F.3d 440 (7th Cir. 2003). In addition, courts have held that a defendant must “know that his corrupt actions ‘are likely to affect the … proceeding.’” United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006).

At present (June 2017), the investigation Mr. Trump is suspected of obstructing is the Justice Department’s inquiry into Russian interference in the 2016 election, any collusion by persons associated with the Trump campaign with such interference, and, in particular, General Michael Flynn’s role in those events or other improper connections with foreign powers.  It is unclear from public sources if or when any grand jury became involved in these inquiries.

It is still less clear that Mr. Trump would have been aware of such grand jury proceedings or have harbored an intention to obstruct them, as opposed to entertaining a general notion that he wanted the Russia investigation, which he seems to have conceived as being conducted by the FBI alone, to stop. A court might impute to the President of the United States a basic understanding of the federal criminal process. Or this might be an instance in which Mr. Trump’s fairly transparent ignorance of governmental mechanics could be raised as a defense.