The crime of obstruction of justice
includes crimes committed by judges
, attorneys general
, and elected officials in general. It is misfeasance
in the conduct of the office. Most commonly it is prosecuted as a crime for perjury
by a non governmental official primarily because of prosecutorial discretion. Prosecutors and attorneys general however commit obstruction of justice when they fail to prosecute judges and other government officials for malfeasance, misfeasance or nonfeasance in office.
Modern obstruction of justice, in United States jurisdictions, refers to the crime of offering interference of any sort to the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials. Often, no actual investigation or substantiated suspicion of a specific incident need exist to support a charge of obstruction of justice. Common law jurisdictions other than the United States tend to use the wider offense of Perverting the course of justice.
Generally, obstruction charges are laid when it is discovered that a person questioned in an investigation, who is not a suspect, has lied to the investigating officers. However, in most common law jurisdictions, the right to remain silent allows any person who is questioned by police merely to refuse to answer questions posed by an investigator without giving any reason for doing so. (In such a case, the investigators may subpoena the witness to give testimony under oath in
court) It is not relevant if the person lied to protect a suspect (such as setting up a false Alibi, even if the suspect is in fact innocent) or to hide from an investigation of their own activities (such as to hide his involvement in another crime). Obstruction charges can also be laid if a person alters or destroys physical evidence, even if he was under no compulsion at any time to produce such evidence.
In United States v. Binion, malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence.
- Martha Stewart was convicted of obstruction of justice, as well as other charges, for falsifying her trading records after learning her friend Sam Waksal, the CEO of Imclone, the company whose stock she sold, was being investigated for insider trading. It appears that Ms. Stewart's own trading activities did not meet the strict definition of insider trading, and the falsification of documents was intended merely to create an explanation for what was a suspicious trade. However, her actions made it more difficult to prove that Waksal had also sold his stock in anticipation of negative news of the lack of FDA approval for Imclone's product.
- Former Vice-Presidential adviser I. Lewis "Scooter" Libby was convicted of obstruction of justice for his role in the investigation of a leak to reporters that named a covert CIA agent, Valerie Plame. His prison sentence was commuted by President George W. Bush in July 2007, just before Libby was about to serve a two and a half year prison sentence.
- President Richard Nixon was being investigated for obstruction of justice for his alleged role in the cover-up of the break-in at the Watergate hotel during his 1972 re-election campaign. Although it is widely believed that Nixon had no foreknowledge of his re-election committee's "dirty tricks" campaign against Democratic presidential candidates that led to the break-in, he was aware of it after the fact and paid money to keep the participants quiet.
- An insider trader instructed his banker in the Cayman Islands to shred records of his suspicious trades when he learned he was under investigation by the U.S. Securities and Exchange Commission. Unfortunately, this set up the banker for a charge of obstruction of justice, and the United States Department of Justice traded immunity for the obstruction charge in exchange for the banker's testimony about the trades he executed on behalf of the trader. Ironically, the banker could merely have refused to produce the trading records when asked, hiding behind the Cayman Islands' bank secrecy laws without being guilty of obstruction.
- Conrad Black was convicted of obstruction of justice in July, 2007 for removing 13 boxes containing financial records from his office in Toronto after it had been sealed by a court order, returning the boxes a few days later. Black claimed he had taken the boxes because they contained personal items.