In Real World, 'Obstruction' Is a Legal Rarity

By DAVID G. SAVAGE

Sept. 8, 1998 12 AM PT

TIMES STAFF WRITER

WASHINGTON — If President Clinton faces an impeachment inquiry in the House of Representatives, the most powerful charge levied against him is likely to be obstruction of justice.

Since January, independent counsel Kenneth W. Starr has been investigating whether the president conspired to conceal from lawyers for former Arkansas state worker Paula Corbin Jones his relationship with Monica S. Lewinsky. A key question has been what role, if any, Clinton played in retrieving his gifts to Lewinsky, a former White House intern.

In December, lawyers representing Jones in her civil sexual harassment suit against the president subpoenaed Lewinsky and ordered her to “produce each and every gift . . . given to you by defendant Clinton.”

In the talk-show chatter of recent months, the president’s alleged efforts to conceal this subpoenaed evidence have been cited repeatedly and casually as clear “obstruction of justice.”

But many criminal lawyers and former prosecutors say it is extremely rare, indeed unheard of by some, to make a criminal obstruction of justice charge out of hidden evidence in a private civil suit.

Judges are divided over whether the federal obstruction statute even covers the hiding of documents or other evidence in a civil case. And three years ago, the Supreme Court narrowed the reach of the law, ruling that prosecutors must prove an act to hide evidence had a real or “probable” impact on a case’s outcome.

Nevertheless, because an impeachment inquiry mixes law and politics, House members could vote to indict Clinton for a “high crime or misdemeanor” that differs somewhat from an ordinary crime.

Typically, prosecutors bring obstruction of justice charges when a criminal defendant tries to scare witnesses against him or to bribe jurors. On occasion, U.S. attorneys have filed perjury charges for lies told during civil depositions, but an obstruction of justice charge is much more rare.

“This is not the kind of thing prosecutors would normally pursue,” said Columbia University law professor Gerald Lynch, a former federal prosecutor in New York. “A lot of things might technically be covered by the definition of ‘obstruction,’ but prosecutors usually draw a distinction between obstruction of a grand jury and obstruction in a civil case.”

In the Watergate scandal, President Nixon was charged with obstruction of justice for trying to block the FBI from pursuing its investigation of the break-in at the Democratic Party headquarters.

If Starr can show that Clinton used his power to block the criminal investigation, that will resemble a more typical obstruction of justice charge. However, if the independent counsel says the president conspired to hide evidence sought by Jones’ lawyers, that could be outside the bounds of ordinary prosecutions, legal experts say.

“In a hotly contested civil case, the other side always thinks someone is trying to hide something,” said Loyola University law professor Laurie L. Levenson, a former assistant U.S. attorney in Los Angeles. “Prosecutors usually don’t get involved. As for a criminal prosecution for obstruction in a civil case, if it ever occurs, it’s extremely rare. I can’t recall one in 20 years here.”

Held to a Higher Standard Than Public

Of course, if the nation’s chief executive violated the law, that is a serious matter, even if his offense might escape prosecution if committed by an ordinary citizen, most observers agree. The president takes an oath to faithfully execute the laws of the land, and lying under oath or tampering with evidence could be deemed an impeachable offense.

Nonetheless, the prosecutors’ comments show that, despite the grave sound of the term “obstruction of justice,” hiding evidence from lawyers in a civil case is usually not the kind of offense that warrants a full-scale criminal inquiry.

The obstruction of justice statute, in Section 1503 of the Criminal Code, states that anyone who “corruptly, or by threats or force, endeavors to influence, obstruct or impede the due administration of justice” can be sentenced to as much as 10 years in prison.

Despite the law’s broad wording, most prosecutors say they have never brought such a charge in a civil case.

“Prosecutors don’t think it is their job to police civil litigation,” said George Washington University law professor Stephen Saltzburg, a former assistant independent counsel.

Moreover, some prosecutors doubt that the phrase “due administration of justice” covers a private lawsuit in which one person seeks financial damages from another, as in the Jones case.

In 1990, a judge in Oregon threw out an obstruction of justice charge growing out of a corporate lawsuit in which business records were allegedly destroyed.

U.S. District Judge Helen J. Frye wrote that the court had not found any case in which a person was charged with obstruction of justice for concealing or withholding discovery in a civil case, and added that “the court declines to stretch the definition” to include such acts.

Ironically, Clinton administration lawyers have been more willing than their predecessors to press the edges of the law and to charge perjury and obstruction of justice in civil cases.

Two years ago, the U.S. attorney in New York filed criminal obstruction of justice charges against two former Texaco executives for concealing documents that had been subpoenaed by lawyers for African American employees who had sued the oil company, alleging racial discrimination.

In April of this year, U.S. District Judge Barrington Parker Jr. allowed the case to go to trial, even though he admitted he could find no record of a defendant having been convicted of obstruction of justice for concealing evidence in a civil suit.

He ruled that the “broad text” of law could be stretched to cover private civil suits as well as criminal investigations. But the case will not stand as a solid precedent because the jurors acquitted the two defendants of the charge.

Issue Hotly Debated in Legal Circles

Milwaukee Dist. Atty. E. Michael McCann said prosecutors are too busy pursuing criminal cases to police lying or concealing evidence in civil suits. “In my 30 years here, I can’t recall a single prosecution for obstruction of justice growing out of a civil case. It just isn’t done,” said McCann, who formerly chaired the criminal justice section of the American Bar Assn.

McCann made clear that he does not approve of or condone Clinton’s conduct regarding Lewinsky. “It is shameful behavior, but, as a basis for a prosecution, I think it’s virtually unheard of,” he said.

The problem of “discovery abuse,” or withholding subpoenaed documents, has been much debated in legal circles in recent years, and some judges have imposed stiff fines for violations. For example, the Prudential Insurance and E.I. du Pont de Nemours companies have been hit with fines of more than $1 million because officials hid evidence that had been subpoenaed in civil suits.

Violators also can be charged with contempt of court, a possibility raised Sept. 1 by U.S. District Judge Susan Webber Wright in Little Rock, Ark. But speaking from Dallas, a lawyer for Jones said a criminal prosecution for withholding civil evidence is highly unusual.

“Prosecutors don’t mess with these cases. They figure there are other sanctions available,” David M. Pyke said. “If you think there is a perjury or withholding evidence on the other side, you can ring up the [district attorney], but they won’t pursue it.”

Pyke suggested that Clinton’s conduct could be deemed worse, however, if he conspired to prevent Lewinsky from testifying truthfully in the civil case.

Hopes Rest With St. Louis Court

Jones sued Clinton for $700,000 because, she maintained, the then-governor crudely propositioned her in a Little Rock hotel room.

In December, Jones’ Dallas-based lawyers tried to show a pattern of improper behavior on Clinton’s part by seeking evidence from Lewinsky.

However, Wright removed the former White House intern from the Jones case, ruling that her evidence was not crucial to the outcome. Later, the judge dismissed the lawsuit entirely on grounds that Jones could not prove she suffered a “job detriment” for refusing the alleged advances by the governor.

Jones’ attorneys have appealed that ruling, however, and hope to have the suit revived by the federal appeals court in St. Louis.

If an impeachment inquiry delved into the issue of obstruction of justice, Clinton’s lawyers could use Wright’s rulings to their benefit.

In 1995, the Supreme Court ruled that the obstruction of justice law does not cover every act that could be seen as interfering with justice, but only those that have a “natural or probable effect of interfering with the due administration of justice.”

The issue arose when U.S. District Judge Robert P. Aguilar of San Jose was convicted of telling a criminal suspect about a secret government wiretap and of lying about his role. He was convicted on the wiretap charge and also of obstruction of justice for having tried to “corruptly obstruct” a federal proceeding.

Speaking for a 6-3 majority, U.S. Chief Justice William H. Rehnquist reversed the obstruction of justice conviction because prosecutors did not show that the judge’s disclosures had an impact on the outcome of the government’s investigation.

The same could be said of the gifts and the job offers for Lewinsky. Because Wright concluded that evidence about the intern’s relationship with the president was not crucial to the Jones lawsuit, prosecutors would be hard pressed to prove that Clinton’s effort to hide the gifts had a “probable effect” on the outcome of the Jones case.

* AN EARLY LOOK: Clinton’s attorney requested an advance copy of the independent counsel’s report. A7