President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey. According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn. In this post I want to briefly examine the legal doctrine of obstruction of justice.
To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell. That’s the gist behind the constitutional prohibition of ex post facto laws. Laws with vague terms raise the same danger. When laws are vague, police and prosecutors can abuse their power and trap people. And that’s the danger with a catch-all doctrine such as “obstruction of justice.”
“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation. Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.” Don’t the courts restrain those abuses? Yes, sometimes they do. I’m presently editing a book of Judge Alex Kozinski’s legal opinions. One case, United States v. Caldwell, touches on this subject. Here is Judge Kozinski:
Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.
I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law! When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms. He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.