I would guess that most people have a basic understanding of what it means to commit murder or kidnap someone or sell illegal drugs. Yes, some lawyer is dying to tell me how people don’t really understand malice aforethought, but you get my point.
Many of our clients face criminal charges that are far less understandable and far subtler. One of the most common charges for our clients is obstruction of justice. As I was digging into this issue for a recent case, I realized that I, too, was confused by it. (Yep, I get confused too.)
That’s not because the concept of obstruction of justice is complicated. The basic idea is simple: you can’t do something that impedes the government from investigating something or prosecuting a case. The problem is that there are so many statutes that cover this category of wrongdoing and so many ways to violate those statutes.
When I realized recently that I didn’t even understand the whole panoply of obstruction statutes, the lightbulb went on. Hey, that’s a blog post! I’ll create a list of the obstruction-related statutes. It will be easy, I though. Ha. Three hours later, I’m finally finishing this post.
The types of acts that fall within these statutes are incredibly broad: destroying hard copy documents; deleting electronic documents; trying to convince a witness to change her story or to lie; creating false documents; giving false testimony (this is also perjury in some circumstances); persuading someone else not to testify or to destroy documents; and so forth. The list is truly endless and the government is constantly pushing the envelope to find new conduct to charge as obstruction.
These offenses have a range of punishments—from a misdemeanor to a statutory cap of 20 years in prison. Most of them have a 5-year cap.
When you think about it, having broad and vague statutes, where violations can result in years in prison, that’s the perfect storm for government overreach.
But that’s a topic for another post. This post is here to help you understand all the different statutes that cover obstruction of justice.
This list is based on Chapter 73 of Title 18, which is titled “Obstruction of Justice” and includes the key provisions. Note that this list doesn’t include what I’d call “obstruction-adjacent” statutes. For example, § 1001 prohibits making false statements to federal agents; §§ 1621-1623 prohibit perjury and false declarations in court; § 401 is criminal contempt of court; §§ 371-372 prohibit any offense against the United States or to prevent the lawful discharge of any official duty; and § 201 prohibits bribery of a government official. These also fall under the umbrella of obstructive acts.
Here’s the list broken down by my very scientific categories: (1) the four big statutes; (2) statutes specific to industries; (3) statutes specific to witnesses; (4) statutes specific to jurors; (5) miscellaneous statutes.
The Four Big Statutes
These four statutes have the broadest coverage and are most likely to form the basis of criminal charges.
18 U.S.C. §?1503 (Influencing or injuring officer or juror generally). Although the title is narrow, there is a catch-all or omnibus portion at the end of this statute that reaches nearly any conduct that obstructs a judicial proceeding. The key prohibition is against one who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
There are a lot of vague terms in here, which have led to a lot of case law interpreting them. Here are the key definitions:
- “Corruptly” means to act knowingly and intentionally—that is, not innocently or accidentally.
- “Administration of justice” is interpreted to cover only judicial proceedings.
- “Endeavor” means any effort to violate the statute. An attempt to obstruct justice is enough; you need not be successful in the effort to obstruct justice to violate the statute.
18 U.S. Code § 1505 (Obstruction of proceedings before departments, agencies, and committees). This statute’s broadest prohibit is against anyone who “corruptly . . . influences, obstructs, or impedes” the “due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States” or any congressional investigation. It also prohibits any “endeavor” to do so.
- Like § 1503, this statute has some very broad terms. It covers “proceedings,” which has been read to include less formal matters and a criminal investigation that is pre-indictment as well.
- This statute also covers proceedings before any federal agency, not just court proceedings. So, if you are a government contractor and have a suspension proceeding before the Department of Defense, this statute prohibits obstructing or impeding that proceeding.
18 U.S.C. §?1512 (Tampering with a witness, victim, or an informant). Witness tampering includes The Sopranos-type conduct—killing or physically intimidating a witness. But this statute also prohibits other, more common types of witness tampering that do not involve any use or threat of force. It also includes a broad “catch-all” section in subsection (c)(2) that mirrors the catch-all provision in § 1503.
- It prohibits someone who tries 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.”
- It prohibits someone from “corruptly persuad[ing]” a witness from testifying, to withhold testimony or documents, to destroy or conceal evidence.
- It punishes someone who “corruptly . . alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so” or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” (the catch-all provision).
18 U.S.C. §?1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy). This one is short but powerful. Congress enacted it in response to the Enron document-shredding controversy. It covers a range of destruction or concealment of records. It criminalizes any effort to “knowingly alter, destroy, mutilate, conceal, cover up, falsif[y], or make a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
Other Statutes – Specific to an Industry
18 U.S.C. §?1510 (Obstruction of criminal investigations). Although this has a broad title, this statute has three specific provisions:
- If you use “bribery” to “obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator,” that’s a crime.
- If an officer of a financial institute “directly or indirectly notifies any other person about the existence or contents of a subpoena for records of that financial institution, or information that has been furnished in response to that subpoena,” then that’s a crime.
- If you work in the insurance industry and “directly or indirectly notif[y] any other person about the existence or contents of a subpoena for records of that person engaged in such business or information that has been furnished to a Federal grand jury in response to that subpoena,” then that’s a crime.
18 U.S.C. §?1511 (Obstruction of State or local law enforcement). This statute is specific to efforts to obstruct justice “with the intent to facilitate an illegal gambling business.”
18 U.S.C. §?1516 (Obstruction of Federal audit). This statute relates to federal contracts and grants. You cannot “endeavor to “influence, obstruct, or impede a Federal auditor in the performance of official duties” that relate to a federal contractor.
18 U.S.C. §?1517 (Obstructing examination of financial institution). You cannot “corruptly obstruct or attempt to obstruct any examination of a financial institution.”
18 U.S.C. §?1518 (Obstruction of criminal investigations of health care offenses). You cannot “willfully prevent, obstruct, mislead, delay or attempt to prevent, obstruct, mislead, or delay the communication of information or records relating to a violation of a Federal health care offense to a criminal investigator.”
18 U.S.C. §?1520 (Destruction of corporate audit records). Accountants for public companies must keep their audit papers for 5 years and the SEC has promulgated rules about what must be maintained. Violation of this statute or any SEC regulation is a crime.
Other Statutes – Specific to Witnesses
18 U.S.C. §?1513 (Retaliating against a witness, victim, or an informant). This statute prohibits killing, attempting to kill, or using any threats against a witness. But it also makes it a crime to “retaliate” against a witness by taking “any action harmful to any person, including interference with the lawful employment or livelihood of any person.”
18 U.S.C. §?1514 (Civil action to restrain harassment of a victim or witness). This statute permits a court to enter a TRO or restraining order against harassment of a victim or witness and makes it a crime to violate that order. Then, § 1514A allows for civil retaliation actions against public companies.
Other Statutes – Specific to Jurors or Jury Deliberations
18 U.S.C. § 1503 (Influencing or injuring officer or juror generally). The catch-all provision is discussed above, but the first part of this statute prohibits anyone from “corruptly” or “by threats or force” trying to “influence, intimidate, or impede” any juror or court officer from discharging his duty and imposes punishment for “injuring” a juror because of an indictment or verdict.
18 U.S.C. §?1504 (Influencing juror by writing). This statute prohibits action to “influence the action or decision of any grand or petit juror” by “writing or sending to him any written communication.”
18 U.S.C. §?1508 (Recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting). This one is self-explanatory. Don’t record jury deliberations.
Other Miscellaneous Statutes
18 U.S.C. §?1501 (Assault on process server). Prohibits an act that “obstructs, resists or opposes” a government officer from serving any sort of process on someone. This includes acts to resist service of a search warrant or an arrest warrant.
18 U.S.C. §?1502 (Resistance to extradition agent). Prohibits an act that “obstructs, resists, or opposes an extradition agent of the United States in the execution of his duties.”
18 U.S.C. §?1506 (Theft or alteration of record or process; false bail). A rarely-used statute that covers efforts to falsify records or testimony about bail issue.
18 U.S.C. §?1507 (Picketing or parading). I’m sure there must have been First Amendment challenges to this one but it covers anyone “pickets or parades” near a courthouse with the corrupt intent to influence a judge, juror, witness, or court officer.
18 U.S.C. §?1509 (Obstruction of court orders). Once a court enters an order, it is binding on the parties. If you use “threats or force” to “prevent, obstruct, impede, or interfere with” the exercise of rights under a court order, then it is a crime.
18 U.S.C. § 1515 (Definitions for certain provisions; general provision). This statute defines certain terms, such as “official proceeding,” “misleading conduct,” and “corruptly.” It contains a key provision excluding acts by lawyers to defend a client from obstruction.
18 U.S.C. §?1521 (Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title). Another rarely-used and very specific statute. It prohibits a person from filing a false lien against a government official.
Finally, Good News for Lawyers!
Defending people in criminal investigations is not obstruction of justice. That seems basic but I’m glad Congress made it explicit.
Section 1515(c) provides that this chapter of the U.S. Code “does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.”
To be fair, much of what we do on the defense side is to slow down or prevent a case from resulting in a conviction. We may persuade our clients not to testify or appear for a witness interview, because the legal risks are too great. That could be perceived as obstruction, I suppose.
As lawyers, we are bound by rules of professional conduct and court rules that limit what we can do. But this provision makes it difficult for the government to intimidate lawyers by threatening them with criminal charges for vigorously defending our clients.