Ivan Hoffman, B.A., J.D.

          At the heart of the bedrock legal principle of equal justice under law (read “Respect For The Law.”) is the requirement that the law must be unimpeded in its search for the truth.  When someone interferes with that process or even attempts to do so, our legal institutions are irrevocably harmed. 

          Obstruction of justice finds its origins in the English common law but also in various statutes, both federal and state.   For simplicity, and because this topic has been coming up in regard to federal officials, this article will focus on the federal statutes.  Keep in mind, however, that it is legally unclear whether a sitting president can be criminally prosecuted.  Notwithstanding those legal uncertainties, it seems clear that obstruction of justice can be the basis for impeachment of that president.  It was so in the impeachments of both Presidents Nixon and Clinton.  Read “Impeachment.” 

The Federal Statutes 

         The crime is defined in a series of statutes (18 United States Code, sections 1501-1517).  These statutes define the crime in various contexts but, also for the sake of simplicity, this article will focus on the 3 sections most relevant given current events. 

       Section 1503 provides in part that the crime is committed when anyone “corruptly” threatens, intimidates or retaliates against any judicial officers (judges etc.) as well as jurors and witnesses and applies to such actions in either a civil or a criminal proceeding.  It also makes it illegal to attempt to bribe an official to change the outcome of any of those proceedings. 

          However, the provisions in Section 1503 that are most potentially newsworthy today makes it a crime if a person 

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,

          The phrase “due administration of justice” is broadly interpreted.  Note that the actions of the defendant do not have to be successful since the statute makes it a crime to “endeavor” “to influence” etc. 

          Section 1505 has similar provisions and requirements but that section applies to proceedings being conducted by 

any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— 

          In all these instances and others, the federal government has to prove that: 

1.      There was a pending federal judicial or other official proceeding (such as a grand jury proceeding, as but one example, but perhaps, according to the case law, not including an investigation by the FBI unless that investigation is accompanied by a proceeding by a congressional or other committee with adjudicative powers);


2.      The defendant knew of the proceeding or the likelihood of a future proceeding;


3.      That the defendant had a corrupt intent to interfere or attempt to interfere with the said proceeding as indicated; and


4.      That the defendant’s conduct had a likely connection to and effect on the said proceeding (a “nexus” in legal terminology) so that that conduct would have the natural and probable effect of interfering with the proceeding.

          Finally, section 1512 (c) provides in part that it is obstruction of justice if: 

(c)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,…. 

          Of singular importance is that there be a “corrupt” intent.  This is a vague term but the courts have generally described it as conduct “with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct the [proceeding].”  (U.S. v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013)) 

          Thus, the act must be done out of an improper motivation to either accomplish an unlawful result or a lawful result by an unlawful means.  So for example, if a person were to interfere with a proceeding to benefit himself or his family or others, that would likely be deemed to be a “corrupt” intent.  On the other hand, if person were to assert his or her rights under the Fifth Amendment to not testify, clearly that would be interfering with a proceeding but would not be done with a “corrupt” intent.  Moreover, “mixed” motivations are not exculpatory so that if a defendant were to have a corrupt intent along with more benign motivations, that could be sufficient to convict under the statutes. 

Can A President Obstruct Justice? 

          The foundational question is whether a president is legally capable of obstructing justice.  The response is that even if a president has wide ranging law enforcement powers, if the exercise of those powers is done with a corrupt intent to interfere with an ongoing investigation, such conduct may constitute obstruction of justice.  In the Nixon articles of impeachment, it stated that the President violated the President’s oath to “preserve, protect, and defend the Constitution of the United States.” 

          Furthermore, as the articles on “The Presidential Pardon Power” and “Impeachment” indicate, even though a president has the pardon power, if it is used or dangled in front of other parties for the purpose of undermining the investigation into the president or otherwise, it may also be a crime and the basis for impeachment proceedings.  Article 9 of those Nixon articles of impeachment stated:

 endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony. 

Has The President Obstructed Justice? 

         Of course as of this writing, the only answer to this question is “perhaps.”  Until a person is tried  and convicted (including by the Senate via impeachment), lawyers can only speculate.  There is a wide variety of further information and evidence that is required to make any definitive opinions and ultimately the determination is up to the trier of fact.  So this article and discussion are merely speculation. 

          If a president has a constitutional duty to uphold the law but engages in conduct that is designed to either thwart the law or to use the law for personal motivation and aggrandizement, that may constitute a corrupt intent.  Since it is rare that there is direct evidence of such intent, often it is the circumstances and individual facts that are used to prove the intent. 

          Overall, courts look to the entirety of a defendant’s conduct to try to determine if there has been a violation of the law.  Some but not all of the conduct that may rise to the level of obstruction of justice may include: 

1.      Seeking to impede the investigation into Michael Flynn.  Through the public record, former FBI Director James Comey has stated that he interpreted the private conversation between he and the President in which the President expressed “hope” as being a request by the President to back off investigating Gen. Flynn.  As part of an understanding of the meaning of this “hope” is that Mr. Comey stated that the President cleared the room of other personnel before speaking to him. 


a.       Included in this can be the President’s tweet that Director Comey had better hope there are no tapes of that conversation.  The implication of that tweet was that the Director should perhaps reconsider his statements because there might be such tapes.  This may be a violation of section 1512 (b) which proscribes corrupt conduct to “influence, delay, or prevent the testimony of any person” and similar conduct.


b.      Furthermore, when a superior uses the term “hope” in the context as herein, is it unreasonable for a junior to understand that as an order?  On the other hand, is it illegal on its face for the President to suggest to the FBI that it use its customary discretion (such as in plea bargains)?


2.      Demanding loyalty to the President in contravention of the FBI Director’s constitutional duties that require loyalty to the Constitution and the nation. 


3.      Firing James Comey.  However, since the president can fire the Director, was that firing motivated by a desire to thwart the investigation into Russian interference in the election or simply the president’s constitutional discretion?

          In these, undoubtedly the President would assert that he cannot be deemed to have a corrupt intent since he has the Constitutional authority to engage in all this conduct.  See discussion above.

4.      Tweets and other public statements that may be seen to imply the possibility of offering a pardon to various defendants.  (see above).  As such, statements to defendants that they should “stay strong” and not cooperate with the government may be considered to be obstruction of justice.


5.      Possibly participating in fabricating a story about the purpose of the meeting with the Russians.  Instructing witnesses on what to say may constitute obstruction of justice. 


          As indicated above, at the present time all this is merely speculation.  There is much evidence that needs to be further accumulated before any decisions can be made.   Moreover, there are many, many other issues and sub-issues that are not discussed in the above very general overview.

Copyright © 2018 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com). 


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.




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