With Frank Quattrone and Jayson Williams joining Martha Stewart in the club of convicted felons this week, it has become painfully obvious that if there were ever a time for an innocent person to rest easy in the face of government investigations, that time is no longer.
Quattrone was, of course, convicted of obstruction of justice despite the fact that the stock allocation investigation he allegedly obstructed resulted in no substantive criminal charges being brought against him or his employer, Credit Suisse First Boston. Sound familiar? That's because Martha Stewart was recently convicted of lying to federal agents in an unrecorded, unsworn, and voluntary interview she gave about an insider trade for which she was never criminally charged, either. And retired NBA star Jayson Williams just went down on cover-up charges, too—evidence and witness tampering—even though the jury acquitted him of aggravated manslaughter and hung on reckless manslaughter—the substantive crimes he tried to hide.
Getting nailed for the cover-up is nothing new. It's happened for years, Watergate being a memorable example. But the degree to which almost any behavior the government doesn't like can be recast as obstructionist is new. Watergate, after all, involved an actual burglary. The government has always hated being thwarted and has often reacted with bullying aggression. But in recent months it's gotten significantly worse. The message from the government is clearer than ever: Submit or we'll nail you, innocent or otherwise, for even the most picayune dodging and weaving.
Obstruction of justice has basically cemented its place in the law-enforcement playbook as the new tax evasion. It was on tax charges, after all, that Al Capone was famously convicted, ushering in an era of law-enforcement tactics premised on getting the bad guys on anything that would stick.
In one way, this tactic seems both just and sensible. It's hard to argue that punishing someone for a crime they've actually committed is anything but good. And if you can't get them for what you really want to get them for, why not convict them of something else? The answer, like so many in the criminal justice system, is about the discretionary power and politics of prosecution.
The war on obstruction represents an extremely authoritarian way of thinking (not a terrible surprise given that prosecutors are the ones doing the thinking). And it is a mind-set that might be well-suited for attacking a corporate entity. Arthur Andersen, for example, was convicted of obstruction, but not for any substantive crimes concerning its Enron audits. But it is significantly less palatable, and far more dangerous, when it's deployed against individuals.
The ugly truth of our world is that pretty much everyone obstructs everything all the time. Ever been pulled over for speeding and told the officer you didn't see the sign, or that you didn't think you were going that fast? Ever hidden that really embarrassing preliminary draft of a memo—the one rife with typos—even though your boss asked to see all of your prep work? If your boss is Ms. Fed, get ready to feel the steel now. Not because of any illegal typos, but because the embarrassment, or fear, or panic made you deep-six the draft.
Obstruction is a knee-jerk reaction, an almost conditioned response to the fear that comes from an accusation, baseless or justified. Obstruction is a reflexive reaction to that horrible tightness in your throat, the paranoid fear that magnifies whatever crisis you happen to face—blowing it up into life or death proportions. The reality is, most of us are obstructionist almost every day; and never more so than when dealing with the threat of criminal prosecution. That's not to suggest there is nothing wrong with this obstruction; it's just that a little bit of understanding—or proportion—might be in order before sending people up the river for it.
Martha, Frank, and Jayson panicked. Most of us would have too. That panic is human—and though it might be something we punish, it doesn't merit the kind of witch hunts the government has recently engaged in.
Prosecutors will argue that obstruction is a horrible crime in itself, and they'll insist, as they do publicly after almost every obstruction conviction, that they are enemies of deception and obstruction everywhere.
Hokum. When the federal government received videotapes that revealed the brutalization of Muslim detainees at Brooklyn's Metropolitan Detention Center shortly after Sept. 11, they had precisely the kind of evidence prosecutors long for—audio and video showing the planning and execution of jailhouse brutality. But just as important, the tapes caught a lieutenant who had denied to investigators any knowledge of the mistreatment of prisoners, talking about abusing them. More obstructionist still, another prison official had ordered that the incriminating tapes be destroyed.
The tapes that survive revealed that many federal officers lied to investigators when they denied knowledge of the abuse. These tapes are far more damaging than the nonverbatim notes supposedly taken by an FBI agent and ultimately used to convict Martha Stewart. Of course it stands to reason that prosecutors horrified at obstruction anywhere would, good to their public pronouncements, aggressively prosecute it everywhere. But the Department of Justice recently decided to turn a blind eye, opting not to prosecute the guards for either the substantive civil rights violations, nor for the obstruction itself. As it turns out, it's not really about obstruction at all—it's about power and politics, and whether one will submit to both.
The reality is, when it comes to prosecution, and especially the prosecution of obstruction offenses, the government picks and chooses among targets, satisfying goals that have little to do with the underlying substantive offenses, or even the magnitude of the obstruction itself. The problem is, when the criminal law holds ordinary people to superhuman standards, we all become vulnerable to this picking and choosing. And when the government falls in love with a crime for which it can pretty much arrest, prosecute, and incarcerate anyone at any time, we are none of us safer for it.