Our political discourse these days has been focused on three key words – obstruction of justice. Whatever your politics may be, these words and the law surrounding obstruction of justice are important to understand.

We do not know if the country will have to endure another impeachment process, but obstruction of justice will be a critical part of the investigation. After all, the impeachment proceedings against President Nixon and President Clinton focused on this same exact concept.

Obstruction of justice is any interference with the orderly administration of law and justice.  Assuming that the current reports are accurate, I thought it would be helpful to outline the federal law surrounding obstruction of justice. In this situation, the key statutes are set out in Title 18 of the United States Code Sections 1503 and 1512.

Section 1503 is intended to prohibit obstruction of judicial proceedings.  However, prosecutors have used the “catch-all” language in Section 1503 to charge criminal obstruction for non-coercive conduct intended to obstruct the due administration of justice.  See United States v. Aguilar, 515 U.S. 593 (1995).

Section 1503(a) provides in pertinent part:

Whoever  . . . corruptly . . . influences, obstructs or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).

While Section provides for a broad application of conduct, the violation must have some nexus to a pending  grand jury or judicial proceeding.  See United States v. Quattrone, 441 F.3d 153, 170 (2nd Cir. 2006).  Such proof in the case of the Russia investigation may not be very difficult to establish.

Section 1512 also includes a broad, catch-all obstruction of justice crime, although there is some suggestion that such conduct must relate to destruction or concealment of documentary evidence.  As part of the Sarbanes-Oxley Act, Congress expanded the reach of  Section 1512 beyond witness tampering by including a general obstruction prohibition whose reach is not yet clear but which appears to be even broader in scope than the omnibus clause of Section 1503.  Section 1512(k) includes a provision prohibiting conspiracies to obstruct justice in Section 1512(k).

As we learn more about the facts being investigated by Special Counsel Mueller, Section 1512 (c)(2) might be a focus of any decision as to criminal liability.

Section 1512(c) provides:

Whoever corruptly –

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

Section 1512(c)(2) is broadly drafted to apply to any corrupt conduct to obstruct, influence or impede any official proceeding.  Just like many other federal criminal statutes, the offense must be committed with “corrupt intent,” which has been defined to mean “acting with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct the proceeding,” or acting with “consciousness of wrongdoing.”  See United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013); United States v. Mann, 701 F.3d 274, 305-306 (8th Cir. 2012).

As I have written on many occasions, white-collar crimes usually turn on the actor’s state of mind. The government’s ability to prove “corrupt intent” focuses on circumstantial evidence – the surrounding circumstances and contemporaneous actions or statements. It is rare for an actor to make a direct statement of intent when committing the alleged unlawful act.

Under Section 1512(c), a significant issue is whether an FBI investigation falls within the definition of an “official proceeding,” which is defined under 1512(a)(1) as

(A) a proceeding before a judge or court of the United States, a United States magistrate, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Claims Court, or a Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal Government agency which is authorized by law; or (D) . . ..

The courts appear divided on whether an FBI investigation alone falls within the definition. Under Section 1512(f)(1), an “official proceeding” need not be pending or about to be instituted at the time of the offense.  Some courts have suggested that a person’s conduct must have some “relationship in time, causation or logic with the official proceeding,” or that there must be a “natural and probable effect” interfering with the due administration of justice. See United States v. Ramos, 537 F.3d 439 (5th Cir. 2008); United States v. Gonzalez, 922 F.2d 1044 (2d Cir. 1991). In United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014), the Court explained:

Though a proceeding need not be actually pending at the time of the obstructive act, an obstruction of justice conviction requires some “nexus” between the obstructive act and some official government proceeding. A proceeding must at least be foreseen, such that the defendant has in contemplation some particular official proceeding in which the destroyed evidence might be material.

Again, assuming that the reported facts are accurate, the “official proceeding” definition is likely to be satisfied. The public reporting of the FBI’s counter-intelligence and federal grand jury investigation, and the president’s statements and actions may have occurred with sufficient “nexus” to these ongoing investigations.

The definition of “official proceedings” also includes Congressional proceedings. Such conduct could fall separately under Section 1505, which has similar requirements to the broad portion of Section 1512.  The president’s conduct might be examined in relation to then ongoing investigations being conduct by the House and Senate Intelligence Committees (and possibly the  Senate Judiciary Subcommittee on Crime’s investigation).

I am sure there will be many twists and turns in this investigation, and it is easy to spin out scenarios that Special Counsel Mueller’s investigation will take. The issues to be investigated and the actions of numerous players on Capitol Hill, in the White House, and in the campaign create numerous potential targets for investigation and prosecution.