Barely Legal?

by publius

I'm not an expert in this field, and I certainly need more time to see how the statute I've cited below has been interpreted. But I think the text of this statute -- the federal criminal obstruction of justice statute -- might explain why Wilson and Domenici took so long to respond to press inquiries.

It's a little tough to read because there are a lot of "or's," but I've tried to highlight the provisions that might potentially apply.

18 U.S.C. 1503(a) -- Obstruction of Justice

(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or 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, shall be punished as provided in subsection (b)[.]

These are actually (by my reading) independent prohibitions -- the first prohibits intimidating an "officer" "in the discharge of his duty." The second prohibits impeding "the due administration of justice." I of course don't know what was said on the calls -- nor have I fully researched how the statute has been applied. So, it's not clear yet that this statute would apply. But, based on my very brief review of some case law, it does appear that "officer" includes a prosecuting attorney. More later. (And experts, please feel free to chime in).

UPDATE: After thinking about this some more, I suspect that the obstruction of justice statute has more potential to snag DOJ/administration officials than Domenici and Wilson. For instance, if there is email traffic at DOJ in which people talk about firing a USA to put a halt to an investigation, that's a far more serious matter. Wilson and Domenici play an interesting role to be sure. But at the end of the day, I think the real action is going to be up the chain, particularly if there are bad emails floating around.

Comments

[Doran Williams]

Publius. I have a question on a related matter. Apparently, when the former New Mexico Attorney General (Democrat Madrid) was investigating corruption by a well-known Democrat, she was told by the FBI to lay-off, that the Feds were taking over the investigation because there was also possibly or probably violation of federal law as well as of state law. Madrid truncated her investigation, and subsequently was criticized by Heather Wilson, during the race for Congress, for not prosecuting the perp, a prominent Democrat. I am basing this rendition on a report at Talking Points Memo.

My question has to do with the actions of the FBI. By what authority can the FBI direct a state law enforcement or prosecutorial official to refrain from investigation violations of state law? Is there a statute which authorizes the FBI to do so? Or is it based on threats by the FBI to charge the state prosecutor with obstruction of justice in the federal system? I find this very puzzling, as there are two distinct jurisdictions involved, both with its own interests in prosecuting illegal acts. Even if the fed investigation leads to a conviction, that would not prevent the state from seeking a conviction also. That is, the 5th Amendment prohibition against double jeopardy would not prevent convictions in both jurisdictions for the same wrongful act.

Thank you for your attention to this.

[Tulkinghorn]

All admitted attorneys are officers of the court, so certainly all prosecutors are.

Whether or not there is case law expanding or narrowing the meaning of 'officer of the court' as it is used in this statute, I don't know.

[Tulkinghorn]

A first reading of this leads me to the conclusion that Wilson and Dominici did not violate this statute, as they did not 'obstruct[], or impede' the investigation.

Did they seek to 'influence' the investigation? Probably, but seeking the prompt pursuit of an investigation that was already heading toward indictment may not be the sort of influence that the statute is intended to criminalize.

Thus, Wilson and Domenici are guilty of a serious ethical violation, but I don't think they broke this law. I may be wrong, though, if there are related statutes giving a broad definition to 'influence', or if there is caselaw on point.

[CharleyCarp]

By what authority can the FBI direct a state law enforcement or prosecutorial official to refrain from investigation violations of state law?

Comity, even if there's no statute or risk of obstruction.

[LizardBreath]

Did they seek to 'influence' the investigation? Probably, but seeking the prompt pursuit of an investigation that was already heading toward indictment may not be the sort of influence that the statute is intended to criminalize.

This assumes too much. Under the assumption that Iglesias was doing a reasonable job, the reason that the indictments hadn't come down yet was that the investigation hadn't yet progressed far enough to justify them. While it's not clear precisely what was said in the phone calls, a reasonable reading is that it was pressure to issue indictments that were not yet justified by evidence; and that seems clearly like one of the kinds of corrupt influence -- using law enforcement powers without justification for political ends -- that this law was intended to prohibit.

[OCSteve]

The legal stuff is beyond me – so I’ll just point out the humor (IMO) of those Internet searches for “Barely Legal” that will serve this up as the result :)

[judson]

Libby guilty on 4 of 5 counts

[Jesurgislac]

judson: Libby guilty on 4 of 5 counts

Any takers for Bush (if not impeached) pardoning him in December 2008?

[Nell]

Guilty! Guilty! Guilty! Guilty!

I had a dream last night that I worked for some organization in which Dick Cheney was a honcho, and he got me fired. Without ever opening his mouth -- his minions did the badmouthing. Premonition!

[Nell]

Does this U.S. attorney purge, a massive and unprecedented effort to pervert the justice system for political purposes, inspire anyone to impeach at least Attorney General Gonzales?

[Prodigal]

I'm intensely disappointed in Domenici forbeing a part of this.

[Tulkinghorn]

Does this U.S. attorney purge, a massive and unprecedented effort to pervert the justice system for political purposes, inspire anyone to impeach at least Attorney General Gonzales?

Definitely Gonzales - the AG position does not mean he is Bush's lawyer (whatever lickspittle replaced Meirs), but as the country's lawyer. Time to push the momentum, especially because it looks like outside the New Mexico situation there definitely was obstruction of justice (pressuring prosecutors to drop cases against republicans) going on.

It is the sort of blatant, illegal and cynical maneuver that Joe Sixpack can know is crooked within a 20 second sound-bite presentation.

[Dave Schuler]

Don't be surprised if, lurking in the fine print of the cited act, there's an exemption for Congress in there somewhere. That's pretty common.

[Hartmut]

If there was an US Nuremberg trial, Gonzales would sit in the first row and not just for firing a few attorneys that didn't toe the line enough. IMO he is a pervertor of justice worthy of any vile dictatorship of the 20th century.

[dr ngo]

I'm intensely disappointed in Domenici forbeing a part of this.

Posted by: Prodigal | March 06, 2007 at 01:28 PM

But are you surprised?

If so, why?

[Lettuce]

Wilson and Domenici play an interesting role to be sure. But at the end of the day, I think the real action is going to be up the chain, particularly if there are bad emails floating around.

I'm having a hard time considering the DOJ and the people who work there, including the AG, "up the chain" from a member of the House and a member of the Senate.

I have little doubt the White House and the Office of the Vice President would see it this way, but I can see no reason why anyone moderately familiar with our system of government would.

[Gary Farber]

"I'm having a hard time considering the DOJ and the people who work there, including the AG, 'up the chain' from a member of the House and a member of the Senate."

I think it's quite clear that publius meant "up the chain at the DOJ," myself, but I'll have to agree that his phrasing didn't make that crystal clear; however, it is decipherable, if one looks for it.