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.

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?

Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation.

This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.