What is Obstruction? A BFK Primer

On Wednesday, Special Counsel Robert Mueller made his first public statement since, well, ever? He carefully water danced around interpreting the report that lines bookshelves and, likely, several coffee tables in the metropolitan area.  His statement further entrenched both sides of the “Did He or Didn’t He?” debate in their respective positions. Critically, and quite likely purposely, Mueller failed to distill the findings of his 400 page report into a few easy to understand lines, which is how much of the Twitter obsessed public now digests information.  

Given that, I thought it would be helpful to lay out, from a legal perspective, what much of the Mueller Report is talking about.  Obstruction. What does it mean? How does the government prove it?

Like with most crimes, in order to find someone guilty of obstruction, there must be proof beyond a reasonable doubt of an act and a guilty state of mind (or intent).  Under federal law (state law is an entirely different ball of obstructive wax), in order for one to have “obstructed,” they must have or attempted to “influence, obstruct or impede” an official proceeding.  The most common example of this is destroying or tampering with subpoenaed documents or encouraging or offering false testimony in a proceeding. This does not have to be a single act; it can be ongoing conduct.  An important note – and one that most seem confused about – a defendant who is innocent of the underlying charge can still be convicted of obstruction.  So, if John Smith receives a subpoena for documents relating to the government’s investigation into his acts of financial fraud, his innocence of that fraud would not absolve him of carefully burning those documents in his rustic fireplace (isn’t that how all crucial documents are destroyed?)

In order to prove that one is guilty of obstruction, the government must also prove “corrupt purpose.” This is where things get a little murkier as different courts have interpreted this language in different ways.  One view is that corrupt purpose equates to specific intent to obstruct a proceeding. Another view looks at how the defendant obstructs.  Did he act illegally in “influencing, obstructing or impeding?”  The most commonly held view, however, is that “corrupt purpose” equates to “improper purpose.”  This of course begs the question: how do we assess what is “improper?”

For private citizens, this is usually a somewhat straightforward assessment.  If, as a private citizen, you destroy documents and lie to law enforcement, you likely have acted improperly and wasted paper.  For public officials with oversight authority of the institutions conducting these investigations, this question is more complex.  The complexities grow when that official, for instance a President, may have mixed motives behind each action taken. For instance, that official might terminate an FBI director both because that director is likely investigating his dalliances with a foreign government and the creepy way in which he tried to blend in with curtains.  Mueller attempts to wade through and offer guidance to Congress on these complexities in his report.

That’s obstruction in a nutshell. So, if you are looking to use one of your beach days to wade through these complexities yourself, feel free to do so through the prism of whether the President “Influenced, obstructed or impeded” an official proceeding and whether he did so with an improper purpose.  If you conclude from the report that he did, then you have convicted him of obstruction in the courtroom of your mind. If you acquit, be sure to let him know on Twitter.  Succinctly.

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Lee Bergstein

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