Government review of privileged material seized during law office searches or following the subpoena of an attorney to a grand jury, raise genuine concerns that implicate attorney-client privilege, work product doctrine, and ethical mandates of confidentiality. Currently, the review process may be through a Department of Justice taint or filter team, a court appointed special master, or a hybrid of these two approaches. When applied to high-profile cases such as Michael Avenatti, Rudy Giuliani, and Michael Cohen, one sees an inconsistent approach that is largely controlled by the government. Problems arise not only from this lack of uniformity, but also from certain inherent deficiencies in using a taint/filter team to review privileged material.

This Article offers a reconfiguration of this review process starting with the government’s initial decision to opt for a law office search as opposed to grand jury subpoenas duces tecum. It calls for an expansion of ethical mandates to increase the neutrality of this review process, as well as instituting procedures to ensure an independent review of privileged documents that does not compromise a defendant’s right to due process and right to effective assistance of counsel. Although fortifying the judicial role in reviewing privileged materials comes with certain costs, the aggregate benefits provide a more balanced judicial process.

This Essay examines the role of businesses in exacerbating or combatting corrupt criminal conduct. It uses as examples, the part businesses may have played in the insurrection at the Capitol on January 6th and the part played by businesses in the Russian aggression against Ukraine. It considers the role of both public and private law in combatting criminal conduct, and looks at whether hybrid criminal statutes are needed to facilitate the role businesses can play in assisting the government in the fight against criminal conduct, whether it be within or extraterritorial to this country. Although not advocating for a laissez-faire approach, especially when the company may be involved in criminal activity, it does remind businesses of how they can change their current poor image through an expressive function and in the process assist the government in fighting corrupt criminal conduct.

When one looks to accomplish consistency and predictability in the criminal justice system – important goals tied to achieving deterrence – the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, and varying interpretations of government officials.

This Article examines obstruction of justice, looking at it in three different contexts: as a criminal offense, a sentencing enhancement, and as a basis for a judicial or presidential impeachment. It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters. It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a “short-cut” offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries. Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution. The actual practice, as recently seen in the differing views of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstructive conduct by President Donald Trump, as outlined in the Mueller Report, highlights the inconsistency in this area of the law. This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge, or in conjunction with other shortcut offenses such as false statements and perjury.