Did the Bush-administration lawyers, and the CIA operatives they advised, commit obstruction of justice by destroying the now-infamous CIA-interrogation videotapes? A recent but little-known obstruction prosecution in a Connecticut federal court sheds light on how this pivotal question is likely to be resolved, and could serve as a template for how the Department of Justice will prosecute those involved in the tapes scandal.

In October 2006, officials of Christ Church of Greenwich approached well-reputed local attorney Philip Russell for legal advice when they discovered child pornography on a church computer assigned to its organist, Robert Tate. After considering the options, Russell advised the church to fire Tate, recommended to the dismissed employee that he obtain his own lawyer, and then destroyed the computer’s hard drive.

Many lawyers — myself included — might have advised and acted much as Russell did. Had he left the images intact, he would arguably have put the church, and himself, at further risk of being prosecuted for the possession of contraband. Child pornography, like heroin and a few other such items, is in a legal category that makes it criminal to possess under virtually any and all circumstances.

Had Russell handed over the laptop to the FBI with the hard drive and files intact, he could have incriminated his client — the church, or its officers. And unless the FBI believed that no church official knew about or condoned that particular use of the church’s computer, the church could be liable for the hard drive’s contents, because it technically owned the computer.

Advising a client about what to do with contraband found on its premises is one of the most challenging scenarios a lawyer faces, requiring difficult and controversial judgment calls. Lawyers and legal ethicists differ as to how it should be dealt with under various circumstances. Yet federal prosecutors in the United States Attorney’s Connecticut office shocked nearly everyone, including members of the Connecticut bar and legal experts, when they indicted Russell in February 2007 on obstruction-of-justice charges for destroying the pornographic images.

The FBI had begun investigating the church’s organist three days before Russell destroyed the hard drive, but the fact that Russell had no knowledge of the investigation was irrelevant to the feds. This is because he was charged not under traditional federal obstruction-of-justice statutes — where one has to know of the existence of an investigation in order to be guilty of obstructing it — but rather under two relatively new provisions of the so-called Sarbanes-Oxley Act, named after its legislative sponsors.

Sarbanes-Oxley makes it a felony, punishable by up to 20 years in prison, for anyone to “knowingly alter, destroy, [or] mutilate . . . any documents or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter.” Under that extraordinarily broad law, destroying materials can be considered obstruction even when no formal investigation has begun and no subpoena has been received. Indeed, no investigation ever has to begin in order for there to be a violation of this law, as long as the person who destroys the materials understands that an investigation could follow, or that the materials might be useful in the “proper administration of any matter,” whatever that might mean.

Congress enacted Sarbanes-Oxley in 2002 to boost investor confidence following a string of high-profile corporate-accounting scandals — starting with the Enron fiasco — in which a large number of documents were destroyed. The law’s obstruction provisions were dubbed “criminal penalties for altering documents” and “tampering with a record or otherwise impeding an official proceeding.” But the Department of Justice quickly applied these new provisions to situations like Russell’s, which are not likely consonant with Congress’s intent. (The statute’s official title, which may explain the scope of behaviors Congress sought to prohibit, is the “Public Company Accounting Reform and Investor Protection Act of 2002.”)

Obstruction junction
Sarbanes-Oxley’s obstruction provisions are the latest in a long line of increasingly vague congressional enactments that make it frighteningly easy for an ambitious federal prosecutor not only to indict the proverbial ham sandwich, but to convict the sandwich and deposit it in federal prison for decades. Legal and business experts who learned of the Russell prosecution reacted with alarm. Mark A. DuBois, the chief disciplinary counsel for the Connecticut Bar Association, told Greenwich Time, the local newspaper, that he was troubled by how attorneys like Russell are forced to act as soothsayers. “How prescient does a lawyer need to be?” he asked. New York University Law School professor Stephen Gillers, one of the nation’s most respected experts on legal ethics, told the Associated Press (AP) that the obstruction provisions of Sarbanes-Oxley “upset a lot of assumptions about how lawyers can represent clients.”

Connecticut US Attorney Kevin O’Connor swiftly dismissed the hand-wringing, telling the AP that those who “impede investigations” by “destroying evidence . . . will be prosecuted, particularly when the obstructionists are attorneys and officers of the court.” The new Sarbanes-Oxley statute, said the prosecutor, was meant “to remedy the loopholes” in prior obstruction statutes. The new statute eliminates the need to tie the obstruction “to a pending or imminent proceeding or matter” and “does not require corrupt intent.”