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46 BYU L. Rev. 657 (2020-2021)
Obstruction of Justice: Redesigning the Shortcut

handle is hein.journals/byulr46 and id is 681 raw text is: Obstruction of Justice: Redesigning the Shortcut Ellen S. Podgor* 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 federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for federal 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, or varying interpretations of government officials. This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as 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 * Gary R. Trombley Family White Collar Crime Research Professor and Professor of Law, Stetson University College of Law. The author thanks research assistants Christopher T. Lawson, Megan Marx, and Bradley V. Reed, librarian Wanita Scroggs, and the statistics assistance from Isaac W. Miller and the U.S. Sentencing Commission. Thanks also go to Professor Bruce Green and the members of the Southeast Association of Law Schools (SEALS) discussion group, who provided comments on one aspect of this piece, and also to Professor Douglas Berman. The author also thanks Stetson University College of Law and Cheryl L. Segal. 657

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