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'Obstruction of Justice' — A Hopelessly Flawed Offense

'Obstruction of Justice' — A Hopelessly Flawed Offense
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By Monday, 23 April 2018 06:34 AM Current | Bio | Archive

The Federal obstruction of justice statute, 18 United States Code § 1503, proscribes “corruptly or by threats or force, or by any threatening letter or communication, influenc[ing], obstruct[ing], or imped[ing], or endeavor[ing] to influence, obstruct, or impede, the due administration of justice.”

Most obstruction of justice cases involve not threats of force, but allegedly “corrupt” conduct. “Corrupt” is a vague term, meaning different things to different people.

Federal courts routinely turn aside arguments that vagueness in the Federal obstruction of justice statute violates the Due Process Clause of the Fifth Amendment to the United States Constitution. What does this say about the Federal judges deciding such cases?

More troubling yet, the statute presumes that “justice” is the object of the prosecution being obstructed. Even if we could all agree on the meaning of “justice,” there is no guarantee that it is the object of a given prosecution. Prosecutions often proceed from an ulterior motive.

For example, the Obama administration Justice Department pursued a program seizing bank account balances for alleged “structuring” of cash deposits or withdrawals. Banks are required to report a cash deposit or withdrawal in excess of $10,000. Banks are also required to report deposits just under $10,000—“suspicious activity.” Are you alarmed that the Federal government maintains such a totalitarian grip on private, domestic banking activity?

A customer “structures” by breaking cash deposits or withdrawals into amounts less than $10,000 with specific intent to evade the bank’s currency transaction reporting obligation. Where structuring was suspected, IRS Special Agents would go into court ex parte and obtain a seizure warrant and then execute it, seizing bank account balances, all without notice to the funds’ owner. The seizures clearly violated of the account owners’ right to Due Process of Law guaranteed by the Fifth Amendment to the U.S. Constitution.

I represented the victims of such seizures in litigation to recover the funds seized from them, and their attorney fees. Illuminating unlawful, unconstitutional Federal activity, these cases were embarrassing to the Federal actors involved. In one case, the U.S. Attorney’s office in Seattle tried to intimidate my client by announcing that it was going to investigate him before a grand jury. An immigrant from India, he operated a filling station and convenience store in suburban Seattle. He was a law-abiding, naturalized citizen. Wells Fargo Bank had secretly filed Suspicious Activity Reports concerning his accounts with the Federal Financial Crimes Enforcement Network (“FinCEN”). A local police officer, moonlighting on a “financial crimes task force,” began “investigating” the man. The officer swore out a seizure affidavit, and a Federal magistrate readily issued a seizure warrant upon it, all ex parte. The officer then served the warrant upon Wells Fargo Bank, which paid the man’s business bank account balance, exceeding $125,000, over to Federal agents.

The seizure traumatized the business owner. Outstanding checks would bounce. He would not have funds to meet payroll or buy gasoline inventory, must be which must be paid for in cash.

After we filed a lawsuit to recover the seized funds, and my client’s attorney fees, an Assistant U.S. Attorney from the Seattle U.S. Attorney’s Office called me and said that my client would be the target of a grand jury investigation. It was a clear abuse of prosecutorial power, executed to intimidate my client to drop his seizure case. There is an old saying that a grand jury can “indict a ham sandwich.” The spectre of having to defend oneself against a Federal prosecution is daunting.

My client did not cow to the Federal coercion. For 18 months he lived with the cloud of a grand jury investigation hanging over him. Eventually, the Assistant U.S. Attorney emailed me informing me that my client was no longer “under investigation.”

The investigation of my client by the U.S. Attorney’s Office in Seattle had nothing to do with justice.

Nor does a salacious, false dossier ordered and paid for by the Democratic National Committee seeking to accomplish a political end have anything to do with justice. There is no factual basis for prosecuting President Trump for obstruction of justice. Talk of such a prosecution is foolish.

The Federal obstruction of justice statute is hopelessly flawed. A more precisely-drawn statute, such as for witness tampering or destruction of evidence, would make more sense.

Stephen J. Dunn is a tax attorney in Troy, Michigan. He is the author of the treatise Foreign Accounts Compliance (Thomson Reuters 2017) and Foreign Accounts Compliance Blog. He is also an adjunct professor at Michigan State University College of Law.

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The Federal obstruction of justice statute is hopelessly flawed. A more precisely-drawn statute, such as for witness tampering or destruction of evidence, would make more sense.
obstruction, justice, flawed, offence
Monday, 23 April 2018 06:34 AM
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