On Sunday, Attorney General William Barr released a very brief summary of the 300-page-long Mueller report, presenting what he called the “principal conclusions” of the special counsel’s investigation into the Trump campaign’s relationship to Russia during the 2016 election. According to Barr, Special Counsel Robert Mueller’s investigation found no coordination between now-President Donald Trump’s camp and the Russian government and declined to make a judgment as to whether Trump obstructed justice throughout the course of the investigation. Left to make the determination of whether to charge Trump with obstruction, Barr—together with Deputy Attorney General Rod Rosenstein—wrote that he found the evidence insufficient.
Since the Mueller report remains classified, the country must rely on Barr’s judgment here. However, Barr’s assertion in the summary that the absence of an underlying crime “bears on” whether Trump obstructed justice raised many a lawyer’s eyebrow. “Nothing in the obstruction statute requires that another crime has occurred,” says Robert Weisberg, the director of the Criminal Justice Center at Stanford Law. So Trump could have committed no illegal acts prior to the investigation and still have obstructed justice by interfering in the investigation.
An obstruction of justice charge only requires three elements. First, there must be an attempt to thwart a “proceeding“—which can be an open case, a grand jury hearing, or even an investigation that never leads to any other charges. Second, the obstructive act must be done out of “corrupt intent.” And third, the obstructive act also must be something that is reasonably foreseeable as affecting the investigatory proceeding. None of these requirements hold that there must be an underlying crime.
Corrupt intent is a legal concept that dates back to English common law, according to Weisberg, but he calls its presence in the obstruction of justice statutes “mostly redundant” and unnecessarily confusing—especially since the text of the law doesn’t explicitly spell out what it means. However, he says courts have a largely agreed-upon consensus on what it is. “If you interfere with a proceeding, because you don’t want it to get to the right outcome, then you had a corrupt intent,” he says. “It doesn’t require profound immorality or a deeply evil, anti-social motive. It’s just self-interested, illicit intent.”
The requirement that an act of obstruction be something that a reasonable person would predict might affect an investigation is called the nexus test, which Barr references in his summary: “The report identifies no actions that, in our judgment … had a nexus to a pending or contemplated proceeding,” he writes.
Some legal scholars view obstruction of justice cases as part of a class of “pretextual prosecutions,” in which defendants are charged with one crime based on suspicion of another—sometimes because the pretextual crime is easier to prove than the underlying one. Al Capone getting busted for tax evasion is the most famous example of a pretextual conviction, but many obstruction cases also fall into the category. A 2005 article in the Columbia Law Review argues that pretextual prosecution causes credibility and efficacy issues for the justice system. “Charging criminals with their ‘true’ crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence,” the authors write.
Still, Barr is no pretextual prosecution reform hero. “Barr’s very cramped reading of what can constitute obstruction is inconsistent with almost all precedents,” notes Duke Law professor Lisa Kern Griffin. The last half century’s pop cultural and political history is filled with examples of obstruction of justice charges and convictions unaccompanied by the prosecution of another crime.
Most major obstruction of justice charges are relatively recent, in part because obstruction of justice practically requires the expensive, complex proceedings of Big Government. “The New Deal is the emergence point for the modern complex administrative state that we’re so used to and simultaneous with the largest explosion of administrative regulation at the state and federal level,” Weisberg says.
In the 19th century, obstruction laws were on the books, but—save for the occasional perjury case—obstruction cases were extraordinarily rare, given the relative lack of large police forces and public prosecutors. “A more common kind of deception crime, if you want to call it that, in the 19th century, would have been various things involving customs and tariffs to avoid taxation,” Weisberg says.
Some of the most consequential examples of obstruction convictions have involved the hindering of a congressional investigation, absent any other charges. “If you prevent, tamper with witnesses, or shred documents that are of congressional interest, you can be accused of obstructing Congress,” Weisberg says. “And Congress can’t even convict anybody of a crime!”
Indeed, the Congressional investigation into the Reagan administration’s Iran-Contra affair resulted in numerous obstruction of justice (and related withholding evidence and perjury) charges and convictions, in some cases without charges of an additional crime. The affair involved several Reagan administration officials selling arms to Iran in order to fund a right-wing, anti-socialist militia in Nicaragua known as the Contras—in violation of both a United States arms embargo and legislation prohibiting any more funding of the group. Following extensive congressional hearings, Secretary of Defense Caspar Weinberger was indicted for obstruction of justice and two counts of perjury, and National Security Adviser Robert McFarlane and Assistant Secretary of State Elliott Abrams were convicted of withholding evidence. None of the three were charged with non-obstructive crimes. In another kind of contravention of justice, all were pardoned by President George H.W. Bush soon after. (Abrams is currently the Trump administration’s special envoy to Venezuela.)
Scooter Libby, a top adviser to Dick Cheney who held a slew of positions in the other Bush administration, was convicted of obstruction of justice, perjury, and making false statements during the Federal Bureau of Investigation’s look into the Plame affair. Valerie Plame was a Central Intelligence Agency agent whose identity was leaked to the New York Times, perhaps in retaliation for her marriage to a prominent Iraq War critic. No one was ever charged for the leaks themselves. (Trump pardoned Libby last year.)
Other prominent examples of obstruction of justice have involved corrupt intent that seemed as much rooted in reputation protection as in fear of prosecution for underlying crimes. This type of obstruction case may have reached a high point during the collapse of the performance-enhancing-drug (PED) era in professional sports, over the last decade and a half. “There weren’t a lot of distribution cases involving the PEDs,” Griffin says. “There were congressional, grand jury, and criminal investigations into the use and distribution of performance-enhancing drugs in sports and almost all of those cases that were charged in the end were obstruction cases.” Gold-medal sprinter Marion Jones was convicted of obstruction in 2008, and baseball player Miguel Tejada of perjury the following year. Barry Bonds’ obstruction of justice conviction was overturned in 2015 on a nexus test challenge.
Recent decades have also seen several noteworthy obstruction of justice cases surrounding the financial services industry. Martha Stewart is perhaps the most famous example—in 2004 she was found guilty of obstruction of justice during an investigation into whether she engaged in insider trading of a biotech stock, but the judge dismissed her securities fraud charges.
That same year, investment banker Frank Quattrone was convicted of obstruction of justice for forwarding an email reminding his subordinates of his bank’s (legal) document destruction policy and telling them to “clean up those files,” in light of an investigation into the bank. Nevertheless, Quattrone’s conviction was later overturned due to faulty jury instructions.
In 2002, Arthur Andersen went defunct after it was convicted of destroying documents from its audit of the disgraced energy company Enron. The Supreme Court later reversed the conviction long after the company was past reviving.
No obstruction of justice, but maybe for once, the justice of destruction.
