Obstruction of Justice

The most frequently used of these federal provisions is section 1503, often called the "general" obstruction statute, which has its roots in a section of the act of 2 March 1831 ("An Act declaratory of the law concerning contempts of court"). Until recently, the first part of section 1503 targeted obstructive efforts aimed at witnesses, parties, jurors, or court officers and officials. The Victim and Witness Protection Act of 1982, however, removed the references to witnesses and parties; created new provisions to protect such individuals, and left the initial parts of section 1503 to focus only on jurors and court officers and officials. The 1982 act, however, did not eliminate section 1503's broad "omnibus clause," which focuses on no particular victim and reaches "[w]hoever . . . endeavors to influence, obstruct, or impede, the due administration of justice." The "due administration of justice" is defined to include grand jury proceedings, criminal prosecutions, and civil proceedings.

The omnibus clause's use of "endeavors" allows prosecutors to use the statute against obstructive effort that merely had a reasonable tendency to impede a legal proceeding. Whether or not the effort was successful does not matter. As the Supreme Court noted in United States v. Aguilar (1995), however, the effort must have some clear relationship "in time, causation or logic" to a legal proceeding. Thus, in Aguilar, the Court rejected the government's effort to use Section 1503 against a federal district judge alleged to have lied to agents from the Federal Bureau of Investigation investigating his ties to a labor racketeer. There was no proof, the Court found, that the agents had acted as an arm of the grand jury, or that the judge had known that his false statement would later be provided to a grand jury. Section 1503, the Court held, does not reach actions intended "to influence some ancillary proceeding, such as an investigation independent of the Court's or grand jury's authority."

Cases brought under section 1503's omnibus clause tend to fall into two general categories: those involving the concealment, alteration, or destruction of subpoenaed documents, and those involving the giving or encouraging of false testimony, either in the context of a grand jury investigation or in that of a criminal trial. Technically, the giving of false testimony, before a grand jury or at trial, will not support a prosecution under section 1503, in the absence of a specific intent to obstruct. As a practical matter, however, this additional element can usually be inferred. Thus there will be many cases in which perjury and obstruction charges will both apply and, because of their different elements, can both be brought. Other applications of section 1503 in the 1990s include its use against a grand juror who disclosed grand jury information to the target of the grand jury's investigation.

While federal prosecutors have occasionally used section 1503 to prosecute obstructive efforts in civil litigation, those cases are rather rare, even though practitioners often decry the frequency of such misconduct. There are at least two reasons for this. Not only is the perceived public interest in criminal litigation usually greater, but it is the prosecutors themselves who are stymied by the obstruction of criminal cases. Moreover, efforts to derail criminal proceedings are all the more dangerous and worthy of prosecution because, under double jeopardy doctrine, any acquittal obtained, however improperly, cannot be overturned on appeal.

Unless the obstruction charged under section 1503's omnibus clause is by "threats or force, or by any threatening letter or communication," the statute requires proof that the alleged obstructive endeavors have involved a "corrupt" purpose. The precise meaning of this term is somewhat unclear. Courts have held that the element is satisfied not only when a defendant has acted with the purpose of obstructing justice, but also when the obstruction of justice is a reasonably foreseeable consequence of his actions, and not his main purpose. Moreover, they have held, the corrupt intent may be inferred from the circumstances. Despite its breadth, however, the statute has withstood numerous challenges alleging unconstitutional vagueness, with courts often noting that the corrupt purpose requirement is actually what saves the omnibus clause from unconstitutionality in this regard.

The centrality of section 1503's scienter element (the element focusing on the offender's guilty state of mind) can raise some particularly difficult issues for lawyers, especially criminal defense lawyers. Defense attorneys' representational obligations have never immunized them from obstruction charges. Indeed, the cases are clear that the giving of otherwise lawful advice, like encouraging a client to assert his Fifth Amendment privilege, or the use of legal processes, like filing a complaint, can violate section 1503 if done with a corrupt intent to obstruct justice. The difference between zealous representation and obstruction can thus lie solely in intent. Although prosecutors have argued that this is a bright line analytically, defense counsel understandably have not always felt secure in the distinction. Ironically, the chief reason why the law is not more clearly developed on the difference between zealous advocacy and illegal obstruction is that prosecutorial self-restraint in this area has limited the number of cases.

The penalty for a violation of section 1503 is imprisonment for up to ten years, but the sentence may be far greater under certain circumstances. If the offense occurred in connection with a criminal case and involved physical force or the threat of it, the maximum term will be the maximum term that could have been imposed for any offense charged in the underlying case, or ten years, whichever is greater. If the section 1503 offense involved a killing, the punishment can be life imprisonment or death.