The title of this post is the title of this new paper authored by Ellen Podgor just published in the BYU Law Review and now available at this link. Here is its abstract:
When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, or varying interpretations of government officials.
This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as a sentencing enhancement, and as a basis for a judicial or presidential impeachment. It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters. It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a “short-cut” offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries. Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution. The actual practice, as recently seen in the differing view of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstruction conduct by President Donald Trump — outlined in the Mueller Report — highlights the inconsistency in this area of the law. This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge or in conjunction with other shortcut offenses such as false statements and perjury.