Lying on a Security Clearance Form: The Crime of False Statements

A number of Trump administration figures are under investigation for having contacts with Russian officials. Former National Security Advisor Michael Flynn allegedly had repeated contacts with the Russians during the Trump campaign and transition. Flynn was forced to resign and has asserted his Fifth Amendment right to remain silent in response to the ongoing inquiries.

At his confirmation hearing Attorney General Jeff Sessions denied having any contact with Russian officials, but he later admitted to having several meetings with the Russian ambassador. This led to allegations that Sessions may have committed perjury during his hearing testimony.

Most recently there were reports that Trump’s senior advisor and son-in-law Jared Kushner allegedly met with Russian officials about setting up some back channel communications through the Russian embassy. Kushner also is alleged to have had multiple contacts with other Russians, including a Russian banker closely tied to Russian intelligence.

The FBI, Special Counsel, and several Congressional committees are now investigating these various contacts. Some may turn out to be criminal, others may turn out to be simply unwise, and others may be perfectly innocent. But most have one thing in common: the administration officials who had the Russian contacts apparently failed to disclose them when they applied for a security clearance.

Even innocent contacts could result in criminal prosecution if people lied about them or failed to disclose them when required. The charge would be false statements, a key workhorse in the white collar crime stables.

False statements on a security clearance form may be a crime

SF-86: Questionnaire for National Security Positions

The Disclosure Requirement: Form SF-86

All those seeking a security clearance and access to classified information are required to complete a Standard Form 86, or SF-86. This lengthy (over 100 pages) questionnaire is painfully familiar to many government employees. The federal government uses the information in the SF-86 to conduct a background investigation and determine whether access to classified information is appropriate.

The SF-86 requires you to report detailed information about your personal background, employment history, education, marital status, family members, places you have lived, travel, and much more. It also asks about foreign contacts and foreign activities.

In particular, question 20B.6 asks whether the applicant has had any contact at all with any foreign governments or their representatives in the past seven years. If the answer is “yes,” the applicant must provide detailed information about those contacts.

All high-level members of the new administration would have filled out an SF-86. The allegation concerning Kushner, Flynn, Sessions, and others is that when completing the form they failed to report their various meetings with Russian officials.

The Relevant Statute: False Statements

The instructions for the SF-86 include the following warning:

The U.S. Criminal Code (title 18, section 1001) provides that knowingly falsifying or concealing a material fact is a felony which may result in fines and/or up to five (5) years imprisonment.

Many of us have seen similar warnings on other government forms. But what exactly is title 18, section § 1001, and what does it require the government to prove?

False statements, 18 U.S.C. § 1001, makes it a crime to knowingly and willfully –

1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

2) make any materially false, fictitious, or fraudulent statement or representation; or

3) make or use any false writing or document knowing that it contains any materially false, fictitious or fraudulent entry,

in any matter within the jurisdiction of one of the three branches of the federal government.

The false statements statute is extremely broad. It potentially applies to virtually any lie to the federal government. Unlike perjury, you don’t have to be under oath. The government does not need to be harmed or to have relied on your statement in any way. The lies may be written (as on an SF-86) or verbal.  (Martha Stewart and Scooter Libby were both convicted under 1001 for lying during FBI interviews.)

Sometimes the false statement itself is part of the central misconduct in a case. If I lie on an application for a government grant or contract, the lie is an integral part of my criminal scheme to cheat the government out of something. False statements may be one of the statutes used to prosecute such a scheme, along with mail or wire fraud or other appropriate charges.

But sometimes a violation of section 1001 falls into the category of a cover-up crime, similar to perjury or obstruction of justice. In such a case the false statement is a secondary offense that conceals some other underlying misconduct. That’s the allegation in the investigations involving Trump officials. The claim is they lied on the SF-86 in order to conceal underlying contacts with the Russians that may have been improper — or at the very least embarrassing.

False Statements on a Security Clearance Form

To convict under section 1001, the government must prove the following elements beyond a reasonable doubt:

1) The defendant made a false statement, used a false document or writing, or concealed facts through a trick, scheme, or device;

2) The false statements or concealed facts were material;

3) The statement or concealment took place in a matter within the jurisdiction of one of the three branches of the federal government; and

4) The defendant acted knowingly and willfully.

Let’s consider how these elements would be met in a hypothetical case involving failure to disclose foreign contacts on an SF-86.

1) False Statement, Writing, or Concealment

The first requirement is that the statement be false. That may seem a bit obvious. But as it is with the related crime of perjury, the requirement of actual falsity is important. It means there is no room for ambiguity or uncertainty. If a question or answer is open to different interpretations, a statement that initially appears false may not be.

The statute prohibits making false statements and using false documents. The SF-86 asks whether the applicant has had any contact with foreign representatives in the past seven years and asks the applicant to check “yes” or “no.” Checking “no” could be a false statement under section 1001(a)(2) if in fact such contacts had occurred.

Section 1001(a)(1) also prohibits concealing material facts through a “trick, scheme, or device,” even in the absence of outright lies. This portion of the statute likely would also come into play in a case involving failure to disclose meetings with foreign officials. The SF-86 requires the applicant to list the details about any foreign contacts. Failing to list those meetings could qualify as concealment of material facts.

Because there is no general duty to speak to the government, the concealing material facts theory may be used only when the defendant is under a duty to disclose the facts in question. In this case the obligation to disclose is readily found in the requirements of the SF-86 itself. Those who choose to complete the application are required to provide all relevant information.

2) Materiality 

As with the related crime of perjury, the false statements or concealed facts must be material. The law does not punish lies that are trivial or irrelevant.

Materiality is defined very broadly. The statement need only have the potential to affect the decision of the agency to which it is made. There is no requirement that the statement actually affected any outcome, that it was believed, or that the government relied on it in any way. In other words, materiality is judged based on the nature of the statement, not on any actual impact that it had.

In this case materiality would be clear. A primary purpose of the SF-86 is to reveal any potential foreign entanglements that might pose a security risk. Information about contacts with Russian officials, especially so close to the election, would undoubtedly have the potential to affect the decisions of those doing the background investigation. Lying about or concealing that information could therefore violate the statute.

3) Within the Jurisdiction of the Federal Government  

The statement or concealment also must be in a matter within the jurisdiction of one of the three branches of the federal government. “Jurisdiction” is broadly defined. It simply means the agency or office to which the statement is made has some authority to act on the matter in question.

This requirement serves to establish a basis for federal criminal jurisdiction. The lies must be in connection with business of the federal government. Lying to your boss, or your neighbor, or even to a state agency is generally not going to fall within the statute.

In this case the jurisdiction requirement would be easily satisfied. The SF-86 is submitted to the Executive branch, which has the authority to act on the information and investigate whether to grant a security clearance. Any statements or concealment on the SF-86 are plainly in a matter within the jurisdiction of the Executive branch.

4) Knowing and Willful 

As with so many white collar offenses, the intent requirement is where the rubber meets the road. In any case involving an allegedly false SF-86, the key issue would be proving the defendant’s state of mind.

The knowing and willful requirement means the lies or concealment must be intentional and done with a bad purpose. The statute does not apply to mistakes or inadvertent failures to disclose. It doesn’t apply if a person was simply confused or misunderstood the question. It doesn’t apply if he failed to disclose the relevant information because he forgot it.

Courts generally interpret the “willful” requirement to mean the defendant knew not only that the statement was false but also that making the false statement was unlawful. That would not be much of a hurdle in an SF-86 case. The form itself warns that false statements or concealment can be a criminal offense. Any applicant would certainly know that foreign contacts are critical information when it comes to granting a security clearance.

The Defense: Lack of Criminal Intent

Attorney General Jeff Sessions

At this point it may be undisputed that SF-86 forms filed by various Trump officials are inaccurate. But filing a false form is not automatically a crime. The issue will be why the information was missing. The government would bear the burden of proving beyond a reasonable doubt that a defendant deliberately sought to lie about or conceal the foreign contacts.

Attorney General Sessions has claimed officials conducting his background investigation told him he did not need to report some of his contacts with foreign officials. If this is true, it could be a defense. It suggests Sessions did not act willfully because he did not believe failing to include that information was unlawful. Even if the advice were incorrect, that would not matter if Sessions believed he was properly filling out the form.

Jared Kushner apparently has claimed he forgot about some of his meetings with Russian officials. If he omitted foreign contacts because he honestly forgot about the meetings, that too would be a defense. Again, it demonstrates a lack of intent. If he did not recall the meetings when he completed the form, then he did not willfully conceal the information.

Michael Flynn may also claim he forgot about various Russian contacts. Or he may claim he did not believe they needed to be disclosed. His position is unclear at this point, because he has declined to speak with investigators unless he is granted immunity.

To prove a crime the government would need to establish that a defendant was not forgetful or acting on outside advice but was deliberately and wrongfully trying to conceal the information. Absent some direct evidence (such as statements by the defendant), the proof may consist of circumstantial evidence that ultimately makes innocent explanations completely implausible.

Whatever the outcome of the investigation into the Russian contacts themselves, the potential false statements are a separate investigative track. Even if the underlying contacts end up being perfectly innocent, lying about those contacts could be criminal.

People in D.C. are familiar with the maxim that sometimes the cover-up is worse than the original misconduct. The Independent Counsel will determine whether that’s the case here.

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Why Jeff Sessions Is Unlikely To Face Perjury Charges

Did Jeff Sessions commit perjury? Washington is abuzz over whether the new Attorney General may have lied during his confirmation hearing before the U.S. Senate. During his sworn testimony and in a written questionnaire, Sessions denied having any communications with Russian officials during the course of President Trump’s campaign.

Then last week the Washington Post reported Sessions had met with the Russian ambassador to the United States in July and September of 2016. At the time, then-Senator Sessions was a member of the Senate Armed Services Committee but was also serving as a top foreign policy advisor to the Trump campaign.

In public statements and at a press conference last Thursday, Sessions claimed his responses were truthful. He said he understood the questions to relate only to contacts with Russians on behalf of the campaign. His meetings with the Russian ambassador, he maintained, were in his role as a Senator, not as a Trump campaign surrogate. As such, he did not consider those meetings relevant. Although he said in hindsight he wished he had mentioned the meetings, he said he had no intent to lie.

Attorney General Sessions has now recused himself from any investigation involving President Trump’s campaign. But this has not put to rest the controversy surrounding his Senate testimony. Some Democrats have called on him to resign, and there have been widespread allegations that the new Attorney General may be guilty of perjury.

The political implications of all of this are still playing out. But criminal implications are a different matter. New information may come to light, but based on the facts we have now it’s extremely unlikely a perjury case against Sessions would be appropriate or successful.

Did Jeff Sessions commit perjury? Testifying before Congress.

The Questions and Answers

The precise questions and answers are extremely important in any perjury case. Here is the question posed by Senator Al Franken during the Senate Judiciary Committee hearing on January 10, and Senator Sessions’s response (video here):

Franken: CNN just published a story alleging that the intelligence community provided documents to the president-elect last week that included information that quote, “Russian operatives claimed to have compromising personal and financial information about Mr. Trump.” These documents also allegedly say quote, “There was a continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government.”

Now, again, I’m telling you this as it’s coming out, so you know. But if it’s true, it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?

Sessions: Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I didn’t have — did not have communications with the Russians, and I’m unable to comment on it.

As many have observed, Sessions did not answer the question asked. Rather than saying what he would do as Attorney General, he volunteered information about his own contacts with the Russians. After this non-response, Franken did not follow up about Russian contacts but simply said, “Very well,” and moved on.

In a written questionnaire submitted after the hearing, Sessions again denied any contact with Russian officials regarding the 2016 election. In that questionnaire Sen. Patrick Leahy asked: “Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?” Sessions responded: “No.”

The Law of Perjury

The relevant perjury statute, 18 U.S.C. § 1621, applies to any witness under oath who “willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” Sessions was under oath. He now admits he met with the Russian ambassador. There is little doubt this information would have been material to the Senate’s inquiry. So as with so many white collar cases, the issue boils down to the potential defendant’s state of mind.

Not all false statements under oath are perjury. A perjury charge requires the government to prove the defendant was deliberately lying. If the witness misunderstood or misinterpreted the question, that is not perjury. Nor is it perjury if the witness didn’t remember relevant information. Even if a witness is deliberately evasive, it’s not perjury if the testimony is literally true. To convict, the government must prove beyond a reasonable doubt not only that the statement was false but also that the witness believed it was false when he made it.

Bronston v. United States

Any discussion of perjury should begin with the leading Supreme Court case, Bronston v. United States (1973). Mr. Bronston testified in a bankruptcy proceeding involving his motion picture company. During that testimony the following exchange took place:

Q:      Do you have any bank accounts in Swiss banks, Mr. Bronston?

A:      No, sir.

Q:      Have you ever?

A:      The company had an account there for about six months, in Zurich.

At the time of this testimony Bronston had no Swiss bank accounts and his company had previously had an account in Zurich. His answers were therefore literally true. It was also true, however, that Bronston had previously held a personal Swiss bank account. That account was closed at the time of his testimony. His non-responsive answer to the second question effectively concealed that information.

The government later prosecuted Bronston for perjury. It alleged that his answers, although literally true, were misleading and left a false impression and therefore constituted perjury “by negative implication.”

The Supreme Court rejected this theory and held perjury requires testimony that is actually false. The Court noted that true statements do not violate the language of the statute, even if they are non-responsive or potentially misleading. The statute requires that the witness make a statement he does not believe to be true.

Even if a witness is deliberately evasive, the Court noted, that is to be expected in an adversary proceeding. The burden is on the questioner to pin the witness down. Perjury will not be charged “simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth.”

President Clinton denies allegations concerning Monica Lewinsky

What Is the Meaning of “Is?”

A more well-known example of allegations of perjury involved former President Bill Clinton. When testifying in the grand jury he was asked about a statement made by his lawyer in a civil deposition. His lawyer had stated that Monica Lewinsky filed an affidavit saying there “is no sex of any kind in any manner, shape or form, with President Clinton.” When asked whether that statement by his lawyer was false, Clinton famously replied, “It depends on what the meaning of ‘is’ is.”

As Clinton explained, his lawyer’s statement was present tense – there “is” no sexual relationship. At the time of the statement the relationship between the President and Ms. Lewinsky had ended some time ago. As a result, Clinton testified, the statement that there “is” no sexual relationship was literally true.

The House of Representatives characterized this testimony as perjury in its Articles of Impeachment. But no criminal prosecutor worth his salt would have brought a perjury case. In a trial for perjury the President would have had a rock solid defense: his answer was true. The political consequences of an answer seen as slick and evasive were devastating, but the testimony was not criminal.

Why Proof of Perjury Is So Demanding

As these cases demonstrate, proving perjury is difficult. This is by design. As the Court noted in Bronston, if perjury is not narrowly construed even honest witnesses might fear to testify. Being examined under oath is stressful and unfamiliar territory for most people. Questions may be misunderstood or misinterpreted. Witnesses might forget relevant information. People should not fear being charged with perjury for inaccurate testimony that may have resulted simply from confusion, stress, or misunderstanding.

This is particularly true considering how easy it usually is for a skilled questioner to avoid any such confusion. The questioner must be alert to any evasion or uncertainty and ask appropriate follow-up questions. For example, the lawyer in Bronston failed to ask the obvious next question: “I didn’t ask about the company Mr. Bronston. Did you personally ever have any Swiss bank accounts?” And the questioner in President Clinton’s deposition also failed to follow up: “OK, so you say there is no sexual relationship of any kind. Was there ever?”

It’s not enough if testimony ends up being misleading or unclear. Perjury prosecutions are only successful when a good questioner has removed any reasonable possibility of uncertainty or confusion. Short of that, there is usually too much wiggle room. If the witness later claims the answer was literally true or the question was misinterpreted, proving a deliberate lie beyond a reasonable doubt will be extremely difficult.

Did Jeff Sessions Commit Perjury?

With these principles in mind, let’s consider whether there might be a valid perjury case against Sessions. His critics have focused on his statement to Senator Franken that he “did not have communications with the Russians.” Taken in isolation, that is untrue. But Franken’s question was based on a news report that Trump campaign representatives had been in contact with Russian officials. Sessions’s statement was preceded by his observation that he was occasionally considered a campaign surrogate.

Given the context of Franken’s question and Sessions’s full response, it’s not unreasonable for Sessions to maintain he was referring to any Russian contacts he may have had in his role as a campaign surrogate. Both the question and answer were couched in terms of contacts by the campaign. If it’s true his meetings had nothing to do with the campaign, Sessions could have thought they were not relevant.

Senator Franken has said he believes Sessions should have mentioned the meetings anyway. Sessions himself said in his news conference he now thinks it would have been better if he had done so. But testimony that ends up being misleading or incomplete is not perjury if it is based on an unclear or misinterpreted question the witness thought he was answering.

When it comes to the written questionnaire the potential case against Sessions is even weaker. It specifically asked whether he had communicated with any Russian officials “about the 2016 election.” If in fact his meetings did not involve the election, then his “no” response was completely truthful.

Senator Sessions may have been honestly trying to respond to the questions. He may have been confused or may have interpreted the question differently, as he says. He may have been trying to be cagey to conceal relevant information. Or he may have been deliberately lying. Just as in the case of Mr. Bronston, we’re not sure. And in criminal law, that kind of uncertainty usually translates to reasonable doubt.

Senator Al Franken questions Jeff Sessions

The Unasked Follow-Up Questions

Some have argued that Sessions used his non-responsive answer to pre-empt further questioning by his blanket denial of any contact with the Russians. That doesn’t make a lot of sense to me. Even if you are willing to commit perjury if forced, why go out of your way to lie about something that wasn’t asked? Why try to head off a line of questions that Sen. Franken did not even appear to be pursuing? Sessions could have easily given some non-committal answer about what he would do as Attorney General without exposing himself to possible perjury charges.

In any event, a non-responsive answer does not “pre-empt” further questioning — it invites it. As the Court said in Bronston, the burden is on the questioner to pin a wily witness down. Imagine if Sen. Franken had followed up with this series of questions:

“Well, OK, I didn’t ask you about your own contacts with the Russians, but since you brought it up — are you testifying that you never had any contact with any Russian officials in your role as an advisor to the Trump campaign?”

“Did you have any contact with any Russian officials at all during the time you served as an advisor to the Trump campaign, whether or not those contacts were on behalf of the campaign?”

“Are you aware of anyone else involved in the Trump campaign who had any contact with representatives of the Russian government?”

“Did anyone in the Trump campaign ever ask you to contact any officials in the Russian government on behalf of the campaign?”

If we had answers to these questions, there would be no ambiguity. If Sessions had denied any contact with Russian officials in any capacity at all, the perjury argument would be much stronger. On the other hand, if he had responded truthfully about his meetings with the Russian ambassador, all the controversy of the past week would have been avoided.

Political Remedies v. Criminal Remedies

Critics of Sessions may say I am being too lenient. They may say I am bending over backwards to give him the benefit of the doubt. Yes, I am. That’s how the criminal justice system works. Sessions is innocent until proven guilty – not the other way around. And proving guilt beyond a reasonable doubt to a unanimous jury is a lot tougher than indicting someone on Twitter.

Many are convinced that Sessions deliberately lied. They may be correct. But a criminal case has to be based on evidence, not on gut feelings and suspicious circumstances. Currently the government could muster little in the way of admissible evidence to contradict what Sessions has said about his intent.

Of course this assumes no additional evidence comes to light. If emails, other documents, or witness testimony were to surface indicating that Sessions’s meetings with the ambassador were in fact on behalf of the campaign, that would completely change the picture.

As with President Clinton and his “meaning of is” answer, the political consequences of all of this for Sessions and Trump may be severe. But political remedies are one thing, and criminal remedies are quite another. At least at this stage, those calling for perjury charges are off the mark.

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Cover-up Crimes

What do one of baseball’s greatest players, a former senior White House official, a domestic diva and Fortune 500 CEO, and a former Speaker of the House all have in common?

This is not the beginning of some bad joke about how they all walk into a bar. Barry Bonds, Scooter Libby, Martha Stewart, and Dennis Hastert all were investigated for possible criminal misconduct and ended up being charged not with that misconduct but with other crimes they committed to try to conceal their actions or thwart the investigation.

Barry Bonds was implicated in baseball’s steroids scandal. He ended up being indicted not for using illegal steroids but for perjury and obstruction of justice after allegedly lying in the grand jury about his steroid use. (He was found guilty of one count of obstruction, but that conviction was recently overturned on appeal.)

I. Lewis “Scooter” Libby, who was Chief of Staff to former Vice President Dick Cheney, was implicated in the potentially illegal leak of the identity of a covert CIA agent, Valerie Plame. He was ultimately not charged with the leak but was convicted of perjury, obstruction of justice, and false statements for lying to the grand jury and the FBI about his actions.

Martha Stewart was suspected in 2002 of insider trading after she dumped her stock in a company called Imclone the day before bad news from the FDA caused the stock’s price to plummet. She and her broker Peter Bacanovic ultimately were not indicted for insider trading, but were convicted of multiple counts of false statements, perjury, and obstruction of justice for concocting a phony story about why she sold the stock and then lying to the FBI and SEC.

And Dennis Hastert, the former U.S. Speaker of the House, allegedly had sexual contact with students decades ago while he was working as a high school teacher and coach. He was recently indicted not for any sexual misconduct but for lying to the FBI about his apparent hush-money payments to one of his victims and for structuring his bank transactions to conceal those payments. (Hastert recently pleaded guilty to one count of structuring bank transactions and is awaiting sentencing.)

It’s a legal maxim, particularly in the post-Watergate era, that often the cover-up is worse than the crime. But cover-up crimes are the Rodney Dangerfield of the white collar world: they don’t get any respect. You frequently hear them derided as “gotcha” crimes, or as something prosecutors charge only when they can’t “get” a defendant for anything else. There is a widespread perception that these crimes are somehow less serious than many other white collar offenses.

But the truth is that prosecution of cover-up crimes is vitally important to the proper functioning of the justice system. It’s time these crimes got the respect they deserve.

fingers crossed 2

The Leading Cover-up Crimes

Perjury – 18 U.S.C. §§ 1621, 1623:  Perjury, or lying under oath, is the classic cover-up crime. There are two principal federal statutes: 18 U.S.C. § 1623 applies only in federal judicial and grand jury proceedings, while 18 U.S.C. § 1621 applies in any proceeding where an oath is authorized by law, including Congressional hearings and investigations by agencies such as the SEC.

Perjury requires that the defendant was under oath, made a false statement about something material to the proceeding, and knew that it was false at the time. Mistakes or innocent failures of recollection are not perjury; it requires a knowing lie.

Perjury is the narrowest of the cover-up crimes because of the oath requirement, which sharply limits the types of proceedings in which it applies. It is also notoriously difficult to prosecute. Perjury requires strict proof that the defendant was deliberately lying and that there was no room for confusion, misunderstanding or ambiguity. Pinning down evasive witnesses is not easy. As a result, testimony that is unresponsive or even misleading may not be perjury because nothing is said that is provably false.

A well-known example of this occurred during the investigation of President Bill Clinton, when he denied under oath ever having “sexual relations” with Monica Lewinsky. It was later determined, of course, that the two did have a relationship that was sexual in nature. But the questioner’s convoluted definition of “sexual relations” coupled with a failure to pin Clinton down with follow-up questions resulted in sworn testimony that was potentially misleading but likely not perjury.

False Statements – 18 U.S.C. § 1001:  The false statements statute is perjury’s more sweeping cousin, and broadly criminalizes lying to the government. The statement must be knowingly false, must be in a matter within the jurisdiction of one of the three branches of the federal government, and must be material, or potentially important. Most notably, there is no requirement that the statement be under oath. False statements can also apply to defendants who do not actually lie, but who conceal material facts from the government through a trick, scheme or device when they were under a legal obligation to reveal those facts (such as a reporting requirement created by statute, for example).

Martha Stewart, Scooter Libby, and Dennis Hastert all were charged with false statements for lying to the FBI in unsworn interviews. Lies in government contracting documents, in reports to administrative agencies, in applications for government programs, and in any other communication with the federal government may potentially result in false statements charges.

Obstruction of Justice – 18 U.S.C. §§ 1503, 1505, 1512, 1519:  A number of different statutes apply to obstruction of justice; I’ve listed only the principal ones. They differ in the types of proceedings to which they apply and in some other particulars, but also overlap a great deal. In general, obstruction of justice means the defendant knowingly and wrongfully endeavored to impair, obstruct or impede the due administration of justice in some proceeding.

Obstruction of justice covers a wide variety of conduct, including tampering with witnesses, threatening or injuring judges or jurors, and destroying, altering or concealing evidence. It may also apply to lying to investigators or in official proceedings with the intent to obstruct, and to that extent can overlap with both perjury and false statements. In the cases of Scooter Libby and Martha Stewart, for example, the defendants were charged with false statements for lying to investigators and were also charged with obstruction of justice for an overall pattern of conduct during the investigation that included, among other things, telling those lies.

Decorative Scales of Justice in the library

Prosecution Priorities and Cover-up Crimes

Cases charging cover-up crimes are often met with a reaction that ranges from skepticism to outrage. When Barry Bonds was prosecuted for perjury and obstruction of justice, there was a lot of commentary suggesting that the case was just an attempt by the prosecutors to “get” Bonds for something trivial because they didn’t like him. When Hastert was recently indicted, some suggested the charges were not appropriate and that Hastert was being unfairly singled out. And even more than a decade after her trial, it’s not unusual to hear someone express outrage over the fact that Martha Stewart was prosecuted.

The sense that these are not serious crimes is widespread. I’ll never forget seeing a sitting U.S. Senator on cable news, when the Scooter Libby case was going on, saying something like, “If there are indictments, I hope it’s for a real crime, and that the prosecutors don’t just go after someone on some technicality like perjury.”

But prosecutors certainly don’t see cover-up crimes as mere technicalities or trivial offenses. These often-maligned charges play a number of important roles.

First, when included in a case with other charges, cover-up crimes may provide valuable evidence of criminal intent. In many white collar cases, proof of intent is the critical issue. It’s often pretty clear what happened and who did what; in a contracting fraud case, for example, the paper trail may easily establish that the defendant overbilled the government. The key issue is likely to be not what happened, but why: the defense will claim it was just a mistake or accounting oversight, not a fraud.

Cover-up crimes may provide powerful evidence of intent in such cases: people generally try to conceal their activities when they realize they’ve done something wrong. If the defendant in our contracting case shredded documents when they were subpoenaed, or tried to intimidate a witness, or lied to investigators, those cover-up crimes provide strong evidence of guilty knowledge. The argument is simple: if they thought they did nothing wrong, why did they try to cover it up?

In other cases, cover-up crimes may serve the interest of justice by ensuring that defendants who engaged in criminal conduct that cannot now be prosecuted are still punished. For example, a defendant may have committed crimes that are now outside the statute of limitations, a key witness may have died making prosecution impossible, or some other critical piece of evidence may be unavailable. If during an investigation of that other criminal activity the defendant engages in a cover-up crime, bringing those charges can ensure that the defendant does not entirely escape the criminal consequences of the earlier activity.

Charges in such a case do not unfairly circumvent the statute of limitations. The defendant is not being charged for the original misconduct. But the cover-up crime can be seen as part of an ongoing course of conduct that includes the earlier bad acts; without those acts, there would be nothing to cover up. It’s perfectly appropriate to hold the defendant accountable for the cover-up that arises from earlier misconduct that cannot now be punished — particularly when, as in the Hastert case, for example, that prior misconduct was particularly egregious.

But more fundamentally, even when such considerations are not in play, pursuing cover-up charges plays a crucial role in the criminal justice system. Prosecuting such crimes is important because these offenses strike at the very foundation of the justice system.

The justice system, of course, depends upon the ability of finders of fact to receive all relevant and appropriate information necessary to decide a particular case. Cover-up crimes undermine that ability.

If witnesses lie in the grand jury, lie on the witness stand, destroy evidence, tamper with witnesses, lie to investigators, or otherwise interfere with the due administration of justice, there must be consequences. If not, such behavior becomes the logical choice of anyone who has some reason to fear the truth.

Prosecution of cover-up crimes, by seeking to deter such behavior, preserves the fundamental operation of the justice system itself.   If these crimes took place with impunity it would become impossible to investigate or prosecute anything effectively, whether white collar crime, violent crime, or terrorism. The effective functioning of the justice system depends upon people telling the truth and complying with the system’s lawful demands — and knowing they will pay a price if they do otherwise.

You can bet that every CEO knows what happened to Martha Stewart when she tried to lie her way through an SEC and FBI inquiry. Every government official knows what happened to Scooter Libby when he tried to obstruct an FBI investigation at the highest levels of government and lied about it in the grand jury. Such prosecutions can have a tremendous deterrent effect, and for that reason are tremendously important.

These crimes are not mere technicalities; they seek to preserve those aspects of our justice system upon which all else rests. That’s why prosecutors, who make their living within the justice system and working to further its goals, take these crimes so seriously, even if others do not always agree. And that’s why prosecution of cover-up crimes deserves a little more respect.

dangerfield

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