New York Times’ Adam Cohen has this analysis of the possible charges in the U.S. Attorney firings issue. I’m not passing judgment one way or the other because as I’ve indicated to you previously, there simply isn’t enough info out there on the issue to do so. Cohen clearly agrees, and bravo to the NYT for taking the high-road approach when so many others have jumped on the tabloid ignore-the-facts-ride-the-buzz bandwagon. Nevertheless, it is an interesting legal exercise to examine exactly what charges could be brought if anything wrong was done (which, again, we just don’t know).
Cohen lists the following possible charges:
- Misrepresentations to Congress, 18 U.S.C. § 1505.
- “Obstruction of proceedings before departments, agencies, and committees” is the actual title of the statute. Key here is that “intent to avoid, evade, prevent, or obstruct compliance, in whole or in part” is required, as is “willful” withholding, covering-up, and so on, “oral testimony.” This is the charge and § 1505 paragraph that the NYT cites, although the word “impede” is wrongly attributed by the Times article to the crime listed in the first paragraph of § 1505.
- The second paragraph of § 1505 is also a basis for charging any influencing official investigations if the investigation is corrupt. So while the Times cites 1505 as merely a basis for charging misrepresentations to Congress, in fact § 1505 can be a charge where anyone “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due process and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” (emphasis added). So clearly, if someone tried to corruptly influence U.S. attorneys, who are part of the Department of Justice (a “department . . . of the United States”), in their role conducting investigations or prosecutions, then that might be a chargeable offense. So I diverge with the Times and think there’s a possibly far broader application of 1505. Key, however, would be proving “corrupt” influencing and impeding, which is an additional element above mere intent to influence.
- Punishment: fine, imprisonment for not more than 5 years. (enhanced sentence where international or domestic terrorism is involved).
2. Obstructing or influencing official proceedings, 18 U.S.C. § 1512(c), for either (a) calling prosecutors to influence them, or actually firing the attorneys to obstruct the official proceedings.
- § 1512(c) simply requires proof that one “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”
- Punishment: fine, imprisonment for not more than 20 years.
- The title to § 1512 is “Tampering with a witness, victim, or an informant.” An argument could be made that the statute and its subsections deal with attempts to influence those individuals — witnesses, victims, informants. I suspect given the broad wording of section (c), however, that this is the one section that intends for a broader application. Note, that the maximum punishment here is far higher than under § 1505, at 20 years vs. 5 years. Likely cause is the higher punishment is merited because § 1512 offenses all deal with actual courtroom proceedings, versus the § 1505 “any Deparment or Agency” proceedings.
3. Witness Tampering, 18 U.S.C. § 1512(b).
- “Whoever knowingly uses intimidation, threatens, or corruptly persuades another person . . . with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding, [or] (2) cause or induce any person to (A) withhold testimony,”
- “Shall be fined under this title or imprisoned not more than 10 years, or both.”
- Again, not the intent to influence requirement and the requirement that the intimidation, threats, or corrupt persuasion be “knowingly” employed. Two additional intent requirements that make proof more difficult.
I’m a little surprised that Cohen concludes “if this were a law school issue spotter, any student who could not identify any laws that may have been broken would get an ‘F.'”
This is the same Cohen that missed the18 U.S.C. § 1505 paragraph 2 charge, after all. But I’ll go easy on you Adam, You get an A-. Good job. I’m sure you still make more than I do.
Again, we just don’t know what went on, and it’s irresponsible citizenry to jump to conclusions. Most of what you’ve heard in the news has been political posturing, so ignore it, keep these provisions in the back of your mind as possibile rubrics for thinking about any improprieties that went on, if any, and hold on tight.
Checks and balances are in place and working overtime to keep your friendly news stations full of bombast, polemic, and politicking. As George Will says, it’s the proper American Way: gridlock keeps Congress and the President from going hog-wild and getting truly harmful things done too quickly. It is, after all, the way the Founders stacked the deck. Enjoy the show.