Keeping the ‘Proceed’ in Proceedings

In the Federal Criminal Code there are many obstruction of justice statutes1, the most prominent of which is the “omnibus clause” contained in 18 U.S.C. Section 1503(a), which proscribe acts that corruptly obstruct or interfere with the due administration of justice. However, another “omnibus clause” was passed by Congress in 2002 as part of the Sarbanes-Oxley Act2 and set forth in 18 U.S.C. Section 1512(c)(2) has become more popular with prosecutors. Instead of prohibiting corrupt obstructive acts involving judicial proceedings, that section prohibits obstructive acts relating to any “official proceeding.” Some believe that it “arguably has the potential to be regarded as the most expansive legislative revision of the obstruction of justice statutes in the history of the statutory scheme.”3 This article will briefly examine both sections, noting similarities, differences, and their scope to provide an insight into obstruction of justice.

Section 1503 was first passed in 1948. Subsection (a) of that statute explicitly prohibits obstructing or interfering with federal jurors or court officials. It is then followed by the “omnibus clause” that serves as a catchall prohibiting all acts that corruptly obstruct the “due administration of justice.” Violators of that section shall be imprisoned for up to 10 years, fined, or both. The section has long been recognized as having the purpose “to protect not only the procedures of the criminal system but also the very goal of that system to achieve justice. ‘The statute is one of the most important laws ever adopted.’”4 

18 U.S.C. Section 1512(c)(2) provides that: “Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” 

Given that both of these provisions are broad catchall provisions5 that, in the case of Section 1503, proscribes all endeavors to obstruct the due administration of justice, and, in the case of Section 1512(c)(2) proscribes all forms of conduct constituting corrupt obstruction in “any official proceedings” not covered by Section 1512(c)(1), courts have placed “metes and bounds” on the language of those provisions. The first of these is the so-called “nexus” requirement that limits criminal liability to defendants who “have notice that [their] wrongful conduct will affect the administration of justice. A person who acts without notice that his conduct will affect an official proceeding, after all, lacks the requisite intent to obstruct.”6 The charged conduct must have the “natural and probable effect of interfering with the due administrative of justice” or, in the case of Section 1512(c)(2), the official proceeding involved. This nexus requirement was first made applicable in Section 1503 cases7 and then in Section 1512(c)(2) cases.8

Another limiting feature contained in the two statutes is the mens rea requirement that an individual must have acted “corruptly” to obstruct a judicial proceeding or any “official proceeding;” the act of obstruction must be accompanied by “corrupt” intent. The word “corruptly” is not defined in Sections 1503 or 1512; therefore it has been the subject of judicial interpretation. To act corruptly the Defendant must use unlawful means, or act with unlawful purpose, and act with consciousness of wrongdoing.9 This element of the statutes can be proven in any number of ways. “In contexts where obstructive actions are not inherently corrupt, the requirement to act ‘corruptly’ separates innocent from illegal behavior. The ‘corruptly’ element protects non-culpable conduct…from being swept up by the statute’s broad prohibition on ‘obstructing, influencing or impeding an official proceeding.’”10The term “corruptly” has constantly been attacked as unconstitutionally vague on the grounds that it is ambiguous and does not provide fair notice that the conduct in question is unlawful. These challenges have been rejected.11

Section 1503(a) also provides that obstructive activity must be in conjunction with judicial proceedings while Section 1512(c)(2) provides that the obstructive acts must be in conjunction with any “official proceeding.” This latter term is defined in 18 U.S.C. Section 1515(a)(1) to include, among other things, any judicial proceeding, any proceeding before Congress, or a Federal Government agency which is authorized by law. Because of the scope of Section 1512(c), it is much broader in its application than Section 1503. In fact, in recent years several courts have ruled in cases involving the prosecution of those individuals who participated in the Capitol riot on January 6, 2021 and were charged with violating 18 U.S.C. Section 1512(c)(2), that the “official proceeding” involved was a joint session of Congress convened for the purpose of certifying the vote count of the Electoral College.12 In addition, former President Trump has been charged with violating 18 U.S.C. 1512(c)(2) for his alleged role in corruptly obstructing and impeding an official proceeding, that is, the certification of the electoral vote.13 

Hanley practices federal criminal law in Ohio and Kentucky. He has also been an adjunct professor at University of Cincinnati, College of Law teaching criminal procedure and white-collar crime.

1 A sample of some of those provisions are 18 U.S.C. Section 1503-Influencing Or Injuring Officer Or Juror Generally, or obstructing of pending federal court proceedings; 18 U.S.C. Section 1505-Obstruction Of Proceedings Before Departments, Agencies, And Committees, or obstruction of pending congressional or federal administrative proceedings; 18 U.S.C. Section 1510-Obstruction Of Criminal Investigations; 18 U.S.C. Section 1512-Tampering With A Witness, Victim, Or An Informant, or obstruction of pending congressional and federal administrative proceedings; 18 U.S.C. Section 1516-Obstruction Of A Federal Audit; 18 U.S.C. Section 1519-Destruction Alteration, Or Falsification Of Records In Federal Investigations and Bankruptcy; 18 U.S.C. Section 1520-and Attempts To Interfere With Administration Of Internal Revenue Laws, or prohibiting corrupt endeavors to obstruct and impede the due administration of the Internal Revenue Laws.

2 Sarbanes-Oxley Act of 2002 (Public Company Accounting Reform and Investor Protection Act), Pub.L. No. 107-204, 116 Stat. 745 (codified in scattered sections of 15 U.S.C. and 18 U.S.C.).

3 Daniel A. Shtob, Corruption of a Term: The Problematic Nature of 18 U.S.C. 1512(c), the New Federal Obstruction of Justice Provision, 57 Vand. L. Rev. 1429 (2004).

4 United States v. Griffin, 589 F.2d 200, 204 (5th Cir. 1979) citing Samples v. United States, 121 F.2d 263, 265 (5th Cir. 1941).

5 United States v. Fischer, 64 F. 4th 329, 337 (D.C. Cir, 2023).

6 United States v. Wellman, 26 F. 4th 339, 348 (6th Cir. 2022) citing United States v. Aguilar, 515 U.S. 593, 599, 115 S. Ct. 2357, 132 L. Ed. 2d 520 (1995)..

7 Aguilar at 599.

8 United States v. Young, 916 F.3d 368, 386 (4th Cir. 2019); United States v. Petruk, 781 F. 3d 438, 445 (8th Cir. 2015); Wellman at 347. 

9 Fischer at 64 F. 4th 329, 339-40 (D.C. Cir. 2023).

10 United States v. Robertson, 84 F. 4th 1045, 1056-57 (D.C. Cir. 2023). 

11 Fischer at 336-42; United States v. Caldwell, 581 F. Supp. 3d 1, 20 (D DC 2021); United States v. Sandlin, 575 F. Supp. 3d 16, 29-30 (D. D.C, 2021)

12 Fischer at 342-343.

13 See U.S. District Court for the District of Columbia, Case No. 1:23-cr-00257, Document 1 (Indictment, Count 3).