In my previous post, I began discussing the possibility that Mr. Trump could be charged criminally with obstruction of justice. I noted that in federal law “obstruction of justice” refers to violations of a number of statutes. I discussed how 18 United States Code, Section 1503, might apply to Mr. Trump. Today, I consider two subsections of a different statute – 18 U.S.C. 1512.
A violation of 18 United States Code, Section 1512(b)(3) occurs if a defendant: “corruptly persuades another person … with intent to … hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense….”
A violation of 18 United States Code, Section 1512(c) occurs if a defendant: “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so….”
At present (June 2017), the primary arguments for obstruction by Mr. Trump are: (1) that in his February 14, 2017, private meeting with then-FBI Director James Comey, Mr. Trump attempted to stop the FBI’s investigation into General Michael Flynn, and (2) that Mr. Trump’s subsequent firing of Comey was intended to hamper or stop altogether the broader investigation into Russian interference in the 2016 election and any collusion by persons associated with the Trump campaign with such interference.
Sections 1512(b)(3) and 1512(c) might, arguably, apply to either or both of these events.
For example, one could argue under Section 1512(b)(3) that Trump’s request to Comey to “Let Flynn go,” was an attempt to “persuade another person … to … hinder, delay, or prevent the communication to a … judge of the United States information relating to the commission or possible commission of a crime.” If evidence of a crime by Flynn existed, and if Comey – and by extension the FBI and the Justice Department — were persuaded by Trump to drop the investigation or not prefer charges against Flynn, the result would be that a judge of the United States would never receive information about Flynn’s alleged crimes. At a minimum, Mr. Trump’s importunings might have the effect of hindering or delaying transmission of criminal evidence to a judge. The same would be true if firing Comey had the effect of hampering or stopping the Russia investigation generally. The result would be to hinder or delay transmission to a judge of information about actual or possible criminal conduct.
Similarly, under Section 1512(c), either the “Let him go” meeting or the Comey firing could be viewed as an attempt to “obstruct, influence, or impede an official proceeding.”
Charging obstruction under Section 1512 might eliminate some of the technical difficulties presented by Section 1503. Notably, as discussed in my last post, Section 1503 requires that there be a “pending judicial proceeding” (which can include a grand jury proceeding) at the time of the obstructive behavior, and that the defendant be aware of the existence of such a proceeding and intend to obstruct it.
By contrast, Section 1512(b)(3) contains no limiting reference to any kind of proceeding; it criminalizes attempts to hinder communication to law enforcement officers or judges of information about crime.
Moreover, Section 1512(c) uses the term “official proceeding” – which is broader than “judicial proceeding” in that it includes proceedings before judges, grand juries, Congress, and federal agencies. It is unclear whether “official proceeding” would include a federal criminal investigation limited only to agent inquiries that did not involve a grand jury or judge. See, e.g., United States v. Ramos, 537 F.3d 439, 463 (5th Cir. 2008). But the point is moot because both the Flynn investigation and the broader Russia inquiry will at some point, if they have not already, involved both a grand jury and judges. And Section 1512(f) specifically provides that in 1512 prosecutions “an official proceeding need not be pending or about to be instituted at the time of the offense.” Finally, Section 1512(g) specifies that the government does not have to prove that the defendant knew the official proceeding was before a “judge, court, magistrate, grand jury, or government agency.”
In short, under Section 1512(c), all the government must prove is that the defendant corruptly attempted to obstruct, influence, or impede some official proceeding, either actual or impending. See generally, United States v. Reich, 479 F.3d 179 (2d Cir. 2007).
The bottom line is that charging Mr. Trump with obstruction under Section 1512(b)(3) or 1512(c) would be somewhat simpler than doing so under Section 1503. The $64,000 question under Section 1503, 1512(b)(3), and 1512(c) is whether Mr. Trump could fairly be said to have acted “corruptly.” To that subject I will turn in my next post.