We have a case set before the Fifth Circuit Court of Appeals in New Orleans in July. It’s a tax case – an excise tax case. It has nothing to do with Obstruction of Justice, and yet it has everything to do with Obstruction of Justice because all white-collar Federal cases have something to do with Obstruction of Justice, and plenty of other types of criminal cases. (Obstruction of Justice can be found in Sections 1503, 1505 and 1512 of Title 18.) Like the warning on a pack of cigarettes; there should be a warning on criminal cases: “WARNING: handling this case may be construed as Obstruction of Justice.”
Justice, as defined by the Feds means a successful prosecution. Anything you do to get in the way of that, “Obstructs, “that “justice.” The Constitution Itself Obstructs “justice” because it’s essential purpose is to defend citizens against the government.
In the case in reference, a Special Agent for the United States Criminal Tax Division claimed that our client “destroyed” records, and he had him on videotape doing so. After a year of “investigating” the tape showed up, and on the video, our client was just “moving” records to a warehouse to protect them. The agent stood his shaky, and incredible ground. “Same thing,” he said. “Destroying, hiding, moving… it’s all obstruction.” We have been petitioning the courts to get the agent’s affidavit to see if he said, “destroying” or some other word, or more than one. If he said “destroying” with that picture as his evidence, he committed perjury. But is he, still right? If records are being routed, either with a valid or invalid warrant, if a citizen protects them can he be accused of obstruction? The easy answer is, yes. By the same standards that “the government can indict a ham sandwich” (courtesy of Judge Sol Wachtler) almost anyone can be charged with Obstruction of Justice. In that same case, the Government cautioned numerous witnesses that should they tell our client he was being investigated, it might obstruct justice. If the defense were to suggest that to witnesses, that they can’t talk to the government investigators, the government might claim the legal defense team was obstructing justice. So in general, it’s something the prosecutor often does, that has no practical remedy, and something the defense can’t do. If the defense offers to pay the witness… obstruction. If the government does it, that’s ok. The government can, in fact, give the witness something more valuable than money… freedom, or threaten something worse than a fine, imprisonment… and that’s ok, that’s not obstruction. We anticipate that regardless of what the government does, or how it indicts, if it indicts, that a jury of twelve citizens will not be pleased that the Special Agent called “moving” or “hiding” “destroying,” that the Special Agent obstructed the truth with a lie.
Obstruction’s ugly cousin is lying to a federal agent. (Lying to a federal agent can be found in section 1001 of Title 18.) The federal agent can lie to you. He can claim to be a lawyer and ask confidential questions, and use them against you. If you lie to him, it’s a felony. Over and over again we find that while the investigation is going on (Martha Stewart, Roger Clemens) … the citizen talking to the government investigators, under oath or not can face trial, and if convicted (or more commonly if he pleads guilty to avoid trial, whether he is guilty or not) for making the mistake of talking to a federal agent… and the federal agent claiming he said X and X was not true. Lying to a Federal agent can be charged under that crime, or if the purpose is to derail the investigation, Obstruction of Justice.
The entire Water Gate affair was essentially Richard Nixon trying to cover up what happened. Covering stuff up is obstruction. If you do it by simply saying “Fifth Amendment” it’s legal. If you do it by any other action or even misleading… you might find an obstruction charge.
In Denver, we had a client who wrote the Grand Jury, the Federal Judge, and the Prosecutor, telling them to back off, they had no legal authority on a Tax Case. He was charged with obstruction. The prosecutor was prepared to testify about the letter he received. We filed a motion to toss him off (you can’t be prosecuted by a witness against you) and the prosecutor dropped the charge rather than be thrown off the case. The client mistakenly thought what he was doing was ok. It wasn’t. It was obstruction. It would have been a tough case to win. However, our legitimate demand that the prosecutor be removed from the case since he was a witness was also obstruction. He wanted to stipulate that he received the letter and not testify. My plan was to put him on the stand. It was a legitimate and ultimately successful plan. It was also obstruction.
No competent criminal defense lawyer lets his or her client talk to the prosecuting attorney… no matter how guilty or innocent the client. There is no upside. The prosecutor is just looking for damaging information. And taking the fifth is obstruction of the goals of the prosecutor. But it is perfectly constitutional, and legal, and necessary.