Subject: Review of Special Counsel’s Report Page 4

The Special Counsel’s Report cites over a dozen federal obstruction decisions in the Report, yet in nearly every one, the charged conduct involved (i) inherently wrongful acts to destroy evidence, to create false evidence, or to tamper with witnesses or jurors, and (ii) an effort to prevent the investigation or punishment of a separate, underlying crime. We have identified only two cases that lack one of those elements. The first is Arthur Anderson LLP v. United States, 544 U.S. 696, 707-08 (2005), which concerned the destruction of evidence in advance of an expected SEC investigation. Although there was no evidence in that case of an underlying crime, the exception essentially proves the rule, because the Supreme Court vacated the conviction precisely because the prosecution could have covered innocuous conduct. When it comes to actions otherwise lawful in themselves, the Court emphasized the need to “exercise restraint in assessing the reach of a federal criminal statute,” because of the need to provide “fair warning.” Id. at 696, 703-04. The Court emphasized that such restraint is particularly appropriate where the “act underlying the conviction… is by itself innocuous,” is not “inherently malign” and could be performed for appropriate, non-criminal reasons. Id. In construing the obstruction statute, the Supreme Court observed that “corrupt” and “corruptly” “are normally associated with wrongful, immoral, depraved, or evil” conduct, and the Court vacated the conviction because the jury instruction did not meet that demanding standard. Id. at 705.

The Report also cites United States v. Cueto, 151 F.3d 620, 631 (7th Cir. 1998), which was a case that clearly involved an effort to protect an underlying crime-namely an illegal gambling operation but that also involved actions that would have been lawful if undertaken for a noncorrupt purpose. The Seventh Circuit there affirmed the conviction of one of the owners of the gambling operation, because he had repeatedly abused state court processes in order to take discovery from grand jury witnesses in an effort to impede the federal investigation. Although the obstruction charge involved otherwise lawful conduct, we cannot describe it as in any way resembling the facts described in the Special Counsel’s Report.²

In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018). Indeed, in seeking to identify cases in which the misuse of otherwise lawful authority established an obstruction case, the memorandum cited three charging documents, two of which arose from state court and thus did not involve federal criminal violations. See id. All three cases involved an effort to use official authority to prevent the prosecution or punishment of a distinct crime. The one federal case did not involve just the abuse of official authority, but rather witness tampering and manufacturing false evidence, concerns that go to the heart of the obstruction statutes. Accordingly, there simply does not appear to be any clear legal precedent similar to the kinds of conduct evaluated here.

2

The Special Counsel also cites United States v. Cintolo, 818 F.2d 980, 992 (1st Cir. 1987), which recognized that “any act by any party-whether lawful or unlawful on its face-may abridge § 1503,” but that case involved both an inherently wrongful act (tampering with a grand jury witness) and separate, underlying crimes (an illegal gambling and loan-sharking operation). More

As voters cast their ballots in a pivotal election, many in the southern English city of Portsmouth expressed disillusionment over what they see as national and local decline.Voters streamed into a polling station in Portsmouth, a city nestled along England’s southern coast that is known for its naval base and historic dockyard, on Thursday morning as ballot workers greeted them warmly.Older couples walked hand in hand into the local church, which had been temporarily fitted out with ballot boxes, alongside parents with children in strollers, and young adults rushing in on the way to work.One by one, they weighed in on the future of the nation in a vote that polls suggested could end 14 years of Conservative-led government.“I just want to see change,” said Sam Argha, 36, who was outside the polling station on Thursday morning. “I just really want to see us do something differently.”Many people in the city expressed a similar desire for a new start at a moment of intense national uncertainty. Polls have predicted that the election could be a major turning point, with the center-left Labour Party expected to unseat the right-wing Conservative Party, possibly with a crushing landslide.Portsmouth North is considered a bellwether seat — the area has voted for the winning political party in every general election since 1974.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

Subscribe to Popcast!Apple Podcasts | Spotify | Amazon MusicVampire Weekend recently released its fifth album, “Only God Was Above Us.” From the band that got started nearly two decades ago at Columbia University but now resides in Los Angeles, it’s an LP that ponders hitting 40, the lessons of history, generational legacies, myths and memories of New York City and Vampire Weekend’s own peculiar status as both an indie-rock success story and an arty pop outlier. It’s also the band’s noisiest album — and perhaps its kindliest.On this week’s Popcast with the guest host Jon Pareles, three critics discuss Vampire Weekend’s latest conundrums, counterpoint, sonic extremes and hidden jam-band core — and its fascination with tunnels.Guests:Amanda Petrusich, staff writer at The New YorkerMatthew Strauss, deputy managing editor of PitchforkConnect With Popcast. Become a part of the Popcast community: Join the show’s Facebook group and Discord channel. We want to hear from you! Tune in, and tell us what you think at popcast@nytimes.com. Follow our host, Jon Caramanica, on Twitter: @joncaramanica. More

President Biden’s executive order Wednesday to cancel thousands of dollars in college debt for millions of Americans has divided Democratic candidates like few other policies of his administration, with some Democrats using the plan to distance themselves from a president who could prove to be a heavy burden in their states and districts.The responses were starkly divided along racial and generational lines, with Black candidates and younger voters more likely to approve and Democrats running as centrists more likely to be critical. But among Democratic candidates in tough campaigns, there was little consistency to be found.Senator Raphael Warnock of Georgia and Lt. Gov. Mandela Barnes of Wisconsin, both Black and both hoping to be in the Senate next year, were supportive. Senator Catherine Cortez Masto of Nevada, a Democrat in a tight race for re-election and running as a moderate conciliator, was highly critical.Yet Senator Mark Kelly of Arizona, another Democrat seeking re-election in a swing state as a bipartisan moderate, backed the plan.Lt. Gov. John Fetterman of Pennsylvania, a Senate candidate hoping to appeal to working-class voters, praised the move as relief to struggling Pennsylvanians too often forgotten by policymakers. Representative Tim Ryan of Ohio, also running for the Senate as a voice of the working class, decried it as a gift to those already on a path to success at the expense of Ohioans shut out of higher education.“While there’s no doubt that a college education should be about opening opportunities, waiving debt for those already on a trajectory to financial security sends the wrong message to the millions of Ohioans without a degree working just as hard to make ends meet,” Mr. Ryan said in a statement.The sharp divisions over the debt relief order were somewhat surprising considering how long the plans were under consideration and the lengthy journey the issue has taken from a rallying cry at Occupy Wall Street protests more than a decade ago to a Biden campaign promise in 2020.The provenance of the plan was no doubt from the left wing of the party — including Senators Bernie Sanders, independent of Vermont, and Elizabeth Warren, Democrat of Massachusetts — that campaigned on promises of far more generous debt forgiveness. The fact that Mr. Biden issued a moderate version a little more than two months before the November midterm elections might have been expected to unite the party, not divide it.But the move was coming from an unpopular president at a time when Republicans — and some Democratic economists — have been portraying any expensive social welfare proposal as jet fuel for skyrocketing inflation.“There’s still a real debate in the party on how interventionist the government should be,” said Waleed Shahid, a liberal strategist and spokesman for Justice Democrats, a progressive group that has strongly pushed for student debt relief. He added, “Some of these Democrats feel like they have to punch back at the president in purple states, and this is what they have chosen to punch back on.”Senator Catherine Cortez Masto, Democrat of Nevada, said the debt relief was not targeted enough at low-income Americans.John Locher/Associated PressBeneath the raw politics of the moment are substantive criticisms. Mr. Biden’s action would cancel $10,000 in debt for Americans earning less than $125,000 per year and cancel $20,000 for low-income students who received Pell grants.Ms. Cortez Masto and Mr. Ryan both said the debt relief was not targeted enough at low-income Americans or college students entering fields with low pay and desperate need, like rural health care or emergency medicine. More

WASHINGTON — The Supreme Court seemed ready on Wednesday to allow states to require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support. In two arguments concerning “faithless electors” from the states of Washington and Colorado, several of the justices focused on the practical consequences of […] More