Federal Obstruction of Justice

How Talking To Investigators Becomes A Bigger Crime Than What They Were Investigating

The cover-up becomes the crime. That’s not just a saying – it’s how federal obstruction of justice actually works. Martha Stewart didn’t go to prison for insider trading. She went to prison for lying about allegations she was never convicted of. Richard Nixon didn’t resign because of the Watergate burglary. He resigned because of the cover-up. Scooter Libby wasn’t convicted of leaking a CIA agent’s identity. He was convicted of lying about an investigation into allegations that never resulted in underlying charges. The pattern is everywhere. The investigation opens. You react naturally – you talk to colleagues, you review your files, you try to remember what happened. And those natural reactions become federal crimes. Your instincts destroy you. The investigation isn’t looking for what you did. It’s looking for what you do once they start looking.

Here’s what makes obstruction so dangerous: you don’t have to be guilty of the underlying crime to be guilty of obstruction. The government investigates you for fraud. You didn’t commit fraud – maybe you’re eventually acquitted, maybe they never even charge it. But during the investigation, you deleted some emails. You told a coworker to be careful what they say. You gave investigators an answer that turned out to be incomplete. Now you’re facing 20 years for obstructing an investigation into a crime that was never proven. The investigation creates the crime. Without the investigation, your deleted email is routine file maintenance. With the investigation, it’s evidence destruction. Without the investigation, telling a colleague “be careful” is friendly advice. With the investigation, it’s witness tampering.

The federal system has 21 different obstruction statutes in Title 18, Chapter 73. Each covers different conduct. Each has different penalties. The general obstruction statute – 18 USC 1503 – carries up to 10 years. Document destruction under 18 USC 1512 or 1519 carries up to 20 years. Witness tampering involving violence can mean 30 years. And these sentences don’t merge with the underlying offense. You face 5 years for fraud PLUS 10 years for obstruction. They stack. The obstruction charge becomes leverage for prosecutors and devastation for defendants.

The Cover-Up That Becomes The Crime

Heres the uncomfortable reality about federal investigations. The underlying conduct might be defensible. Maybe you didnt commit fraud. Maybe the evidence is ambiguous. Maybe the government cant prove intent. But the moment you react to the investigation – the moment you talk to witnesses, destroy documents, or lie to investigators – you create a crime thats provable regardless of what happened before.

Think about what this means practicaly. You can be convicted of obstruction while being acquitted of the underlying offense. You can serve prison time for covering up something that was never proven to be criminal. Martha Stewart served 5 months in federal prison not becuase she was guilty of insider trading – she wasnt convicted of that. She served time becuase she lied to investigators about allegations that never resulted in securities fraud charges. The cover-up was the only crime that stuck.

This pattern repeats constantly in federal prosecutions. Nixon resigned over obstruction of justice, not the underlying burglary. Scooter Libby was convicted of perjury and obstruction, not leaking Valerie Plames identity. Roger Stone was convicted of obstruction and witness tampering related to the Mueller investigation – charged for how he acted during the investigation, not for any underlying conspiracy. The investigation becomes a trap. Your response to being investigated becomes the prosecutable conduct.

And heres the thing prosecutors understand that defendants dont. Obstruction is easier to prove then most underlying offenses. The underlying crime might require complex evidence of intent, financial records, witness testimony about events years ago. But obstruction? Prosecutors just need to show you deleted an email after the investigation started. They just need to show you talked to a witness about what they might say. The conduct is recent, documented, and often captured in electronic records. While your underlying conduct might be ambiguous, your response to being investigated is usually crystal clear.

21 Ways To Commit Federal Obstruction

OK so heres what most people dont understand about federal obstruction. Its not one crime. Title 18, Chapter 73 contains 21 seperate obstruction statutes, each covering different conduct with different elements and different penalties. The government has 21 different theories for charging you with obstructing their investigation.

The main statutes break down like this:

• 18 USC 1503 – the “omnibus clause” – covers obstruction of judicial proceedings including grand juries and trials. Maximum: 10 years.
• 18 USC 1505 – covers obstruction of congressional or administrative proceedings.
• 18 USC 1510 – covers obstruction of criminal investigations.
• 18 USC 1512 – covers witness tampering and document destruction. Maximum: 20 years.
• 18 USC 1519 – added after Enron – covers destroying documents in contemplation of any federal investigation, even before the investigation formally begins. Maximum: 20 years.

Heres the kicker about these statutes. The omnibus clause in 1503 catches everything the specific statutes might miss. It prohibits “corruptly” endeavoring to influence, obstruct, or impede the due administration of justice. “Corruptly” has been interpreted incredibly broadly – any act done with an improper purpose, even if otherwise legal, can be corrupt under this statute. Shredding documents thats legal becomes corrupt when done to hide evidence. Talking to witnesses thats legal becomes corrupt when done to coordinate testimony.

And heres the wierd part that catches people. Under 18 USC 1519 – the Sarbanes-Oxley provision – you can commit obstruction before any investigation exists. If you destroy documents “in contemplation of” a federal investigation, thats a 20-year felony. You dont need a subpoena. You dont need to know an investigation is coming. If you destroy records becuase you think someone might eventually investigate, your guilty. The government added this statute after Arthur Andersen shredded Enron documents. Now it catches everyone who cleans up files when trouble seems possible.

Endeavoring Equals Guilty – You Dont Have To Succeed

Heres something that shocks defendants when they learn it. You dont have to actually obstruct anything to be guilty of obstruction. The statute criminalizes “corruptly endeavoring” to influence proceedings. Endeavoring. Trying. Attempting. Your failed attempt to obstruct justice carries the same penalty as successful obstruction.

Think about what this means for your defense:

• The deleted email that IT recovered from backup? Still obstruction – you endeavored to destroy it.
• The witness who ignored your suggestion and testified anyway? Still witness tampering – you endeavored to influence them.
• The investigation that wasnt actualy impaired by anything you did? Dosent matter. The crime was complete the moment you tried.

This is fundamentaly different from most crimes. Attempted murder is punished less then completed murder. Attempted robbery is punished less then completed robbery. But attempted obstruction is punished exactly the same as successful obstruction. The endeavoring IS the crime. The government dosent have to prove your actions actualy impaired anything. They just have to prove you tried to impair something with corrupt intent.

And prosecutors love this becuase it eliminates the “no harm, no foul” defense. Defendants want to argue that the investigation proceeded fine, that no documents were actualy lost, that no witnesses were actualy influenced. Dosent matter. The statute punishes the attempt, not the result. Your endeavoring to obstruct – regardless of outcome – is a federal felony. The only question is wheather you acted with corrupt intent. And corrupt intent gets inferred from the circumstances: you knew there was an investigation, you took action that could impede it, therefore you must have intended to impede it.

Your Natural Instincts Are Federal Crimes

Heres what nobody explains untill its to late. Your natural reactions to being investigated are exactly what prosecutors charge as obstruction. Every instinct you have – to talk to colleagues, to review your files, to prepare your response – becomes potential federal crime the moment an investigation opens.

Think about what happens when you learn your being investigated:

• Your first instinct: talk to the people involved. “Hey, do you remember what happened with that transaction?” “What did you tell them?” “We should get our story straight.” Each of those conversations is potential witness tampering.
• Your second instinct: clean up your files. Review your emails, delete the ones that look bad, organize your documents. Each deletion is potential evidence destruction.
• Your third instinct: figure out what really happened. So you ask around, gather information, piece together the timeline. Each inquiry is potential obstruction.

And heres the cascade that destroys people. You call a colleague to discuss what happened. Thats witness tampering – coordinating testimony. You delete emails you think are embarrassing but irrelevant. Thats evidence destruction – even if the emails wouldnt have mattered. You talk to your lawyer about what to do. If you discussed anything obstructive, crime-fraud exception might pierce attorney-client priviledge. You tell investigators what you remember, but your memory isnt perfect. Thats potential false statements if anything turns out to be wrong. Every natural response creates criminal exposure.

The most dangerous moment is right after you learn about the investigation. Thats when panic hits. Thats when people make catastrophic decisions. They delete files. They call witnesses. They try to reconstruct events. And every one of those actions – done in the hours or days after learning of an investigation – becomes evidence of corrupt intent. “Why did you delete those emails the day after the subpoena arrived?” “Why did you call that witness immediately after learning about the grand jury?” The timing proves the intent. Your panic becomes your conviction.

The Sentencing Math: Why Obstruction Adds Years

Lets talk about how federal sentencing actualy works when obstruction is involved, becuase this is were defendants realize how devastating these charges are. Obstruction dosent just add a seperate charge. It transforms the entire sentencing calculation.

First, obstruction sentences run consecutive, not concurrent. If your convicted of fraud carrying 5 years and obstruction carrying 10 years, you face 15 years total. The sentences stack. This isnt true of all federal crimes – many sentences run concurrently, meaning you serve them at the same time. But obstruction is designed to punish interference with the justice system seperate from the underlying conduct. So you serve your fraud time, then you serve your obstruction time.

Second, even without a seperate obstruction conviction, an obstruction finding enhances your sentence for the underlying offense. Under the federal sentencing guidelines, if you obstructed justice during the investigation of the underlying crime, you get a 2-level enhancement. That dosent sound like much untill you understand guideline math. A 2-level increase can add years to your sentence – up to 68 additional months in some cases. And this enhancement applies based on preponderance of evidence, not beyond reasonable doubt. Easier standard means prosecutors get the enhancement even when they might not win a seperate obstruction charge.

Third, obstruction makes cooperation deals harder. The government rewards cooperation with reduced sentences. But if youve obstructed, your credibility as a cooperator is destroyed. Why would prosecutors put you on the stand after youve demonstrated willingness to lie or destroy evidence? Your obstruction eliminates your best path to sentence reduction. You cant trade information becuase they cant trust your information.

The practical math is brutal:

• Fraud conviction: 2-3 years under guidelines
• Add obstruction: 2-level enhancement adds 6-12 months
• Seperate obstruction conviction: 5-10 additional years consecutive
• Cooperating witness potential: eliminated

Your obstruction dosent just add charges – it destroys your entire sentencing strategy.

What To Do If Federal Investigators Contact You

If your reading this becuase federal investigators have contacted you – or becuase you suspect an investigation might be coming – heres what you need to understand right now. The decisions you make in the next few hours will determine wheather you face obstruction charges on top of whatever else they might be investigating.

First and most important: stop talking to anyone except your lawyer. Every conversation you have with anyone who might be a witness becomes potential witness tampering. Every text message you send discussing the investigation becomes evidence. Every email you write trying to figure out what happened becomes documentation of your state of mind. Silence is not obstruction. Talking is the danger. The Fifth Amendment protects your right to remain silent – exercise it.

Second: do not touch any documents, files, emails, or electronic records. Dont delete anything. Dont organize anything. Dont move anything. Dont back anything up to new locations. Every interaction with potential evidence after you know about an investigation becomes subject to scrutiny. If you delete a file – even one completly unrelated to the investigation – prosecutors will argue you were destroying evidence. If you organize your documents – even to help your lawyer review them – prosecutors will argue you were manipulating evidence. Leave everything exactly were it is.

Third: understand that talking to investigators without a lawyer is extremly dangerous. You have no obligation to answer questions. FBI agents know this – thats why they often approach people informaly, acting friendly, suggesting “this will all be cleared up if you just explain.” Dont fall for it. Every statement you make is potential perjury or false statements material. You dont need to be under oath. Lying to a federal agent is a felony under 18 USC 1001 whether your sworn or not. The friendly conversation becomes the criminal charge.

Fourth: get a federal criminal defense attorney immediatly. Not tomorrow. Not after you “figure out whats happening.” Now. An experienced federal defense attorney understands how obstruction charges develop and can guide you through the investigation without creating additional exposure. They know what silence protects and what actions cross the line. They can talk to prosecutors on your behalf without creating the false statement risks you face speaking directly.

Fifth: if youve already taken actions that might constitute obstruction, tell your lawyer everything. Attorney-client priviledge protects your communications with your lawyer (unless you discuss ongoing or future crimes). Your lawyer needs to know the full picture to defend you. Maybe the email deletion was routine. Maybe the witness conversation was innocent. But your lawyer needs to know about it to evaluate the risk and develop a strategy.

The federal obstruction system is designed to catch natural human reactions to investigation. The instincts that served you in every other stressful situation – gather information, talk to people involved, clean up your affairs – become federal crimes when an investigation is pending. Understanding that dynamic is the first step toward avoiding it.

The prosecutors adding obstruction charges to your case arent doing it becuase obstruction is there primary concern. There doing it for leverage. The 20-year maximum creates pressure to plead. The consecutive sentencing threat makes cooperation attractive. The eliminated defense options make trial terrifying. Obstruction charges are tools for extracting guilty pleas, and they work becuase the conduct is usualy provable even when the underlying offense isnt.

Dont let your reaction to the investigation become worse then whatever there investigating. The cover-up is usualy worse then the crime – not becuase cover-ups are morally worse, but becuase there easier to prove. Your panic in the first hours after learning of an investigation can add years to your sentence or create charges were none existed before.

Silence is not obstruction. Lawyers are protection. Documents should be frozen. Witnesses should be avoided. Those four rules can prevent an investigation from becoming a conviction.

Dont wait to find out how bad it can get.