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).
Source: Elections - nytimes.com
