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Obstructing an official proceeding

Corruptly obstructing, influencing, or impeding an official proceeding is a felony under U.S. federal law. It was enacted as part of the Sarbanes–Oxley Act of 2002 in reaction to the Enron scandal, and closed a legal loophole on who could be charged with evidence tampering by defining the new crime very broadly.

This part of the Act later became known as a charge against defendants associated with the 2021 U.S. Capitol attack for attempting to obstruct that year's Electoral College vote count, as well as former President Donald Trump for broader alleged activities to obstruct the election. In June 2024, the Supreme Court ruled in Fischer v. United States that the statute could only be applied when the defendant impaired a physical document or object used in an official proceeding or attempted to do so, a higher bar for conviction than had been used in trials to that point.

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The crime is codified as 18 U.S.C. § 1512(c)(2). The relevant subsection reads:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

The term "official proceeding" is defined in 18 U.S.C. § 1515(a)(1) to include proceedings before federal judges, Congress, federal government agencies, and regulators of insurance businesses.

Early history

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Enactment

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Representative Mike Oxley and President George W. Bush shake hands at the signing of the Sarbanes–Oxley Act of 2002, which created the crime of obstructing an official proceeding.

The provision was enacted by Section 1102 of the Sarbanes–Oxley Act of 2002 as a reaction to the Enron scandal, where Enron's auditor Arthur Andersen had destroyed potentially incriminating documents.[1][2][3][4] It added a new subsection to the Victim and Witness Protection Act of 1982, which had already defined the term "official proceeding" and used it in describing other crimes.[5] In a signing statement, President George W. Bush stated that the term "corruptly" would be construed as requiring proof of a criminal state of mind, in order to avoid infringing on the constitutional right to petition.[6]

Prior to the Sarbanes–Oxley Act, anyone who corruptly persuaded others to destroy, alter, or conceal evidence could be prosecuted, but the individuals actually performing the act, or individuals acting alone, could not be prosecuted.[3][7] The new provision closed this loophole by defining the new crime very broadly.[4][7] The case Arthur Andersen LLP v. United States, which was prosecuted under an older subsection of the law, resulted in Arthur Andersen's conviction being overturned by the Supreme Court in 2005 because flawed jury instructions did not account for that subsection's requirement that the action be taken not only "corruptly" but "knowingly".[8]

Use prior to 2021

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In the 2010s, some examples of convictions for obstructing an official proceeding included an associate of the Colombo crime family who obstructed a grand jury investigation,[9] a teacher who tipped off drug dealers that they were under investigation using information from a relative who was a detective,[10] and a former tour bus company executive who concealed and instructed subordinates to destroy documents sought in a federal antitrust investigation.[11]

In 2019, Roger Stone was convicted of obstructing an official proceeding as part of the Mueller Special Counsel investigation, for lying to the U.S. House Committee on Intelligence and encouraging another witness to lie for him.[12][13] Stone was later pardoned by President Donald Trump.[14]

Obstructing an official proceeding was one of the charges in United States v. Joseph, a 2019 case where a Massachusetts state court judge and court officer helped a state court defendant evade a U.S. Immigration and Customs Enforcement agent by allowing the defendant to leave a court hearing through a rear door of the courthouse.[15] In September 2022, the charge was dismissed as part of an agreement requiring Joseph to self-refer to the Massachusetts Commission on Judicial Conduct for possible disciplinary action.[16]

Prosecution of attempts to overturn the 2020 U.S. presidential election

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January 6 U.S. Capitol attack

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Main article: Criminal proceedings in the January 6 United States Capitol attack
 
Rioters who entered the Senate chamber were among those more likely to be charged with obstructing an official proceeding, a felony, unlike others who were charged only with misdemeanors.

As of December 2022, about 290 out of over 910 defendants associated with the January 6 United States Capitol attack had been charged with obstructing an official proceeding, with over 70 convicted.[17] It tended to be used with defendants who had entered the Senate chamber or the offices of Congress members, or members of groups such as the Oath Keepers, Proud Boys, and Three Percenters who were alleged to have prepared for violence in advance. Those who entered other areas of the Capitol were typically charged only with misdemeanors such as entering a restricted federal building, or parading, demonstrating, or picketing in the Capitol.[1][2] For those charged with a felony, prosecutors preferred an obstructing an official proceeding charge in most cases, rather than insurrection or seditious conspiracy charges which are harder to prove and were considered to have more potential to be politically incendiary.[1]

Those who have pleaded guilty to obstructing an official proceeding include "QAnon Shaman" Jacob Chansley,[1] Olympic medalist Klete Keller,[18] musician Jon Schaffer,[19] Proud Boys member Nicholas Ochs,[20] and Ronald Sandlin.[21]

Several members of militant groups have been convicted of the charge. On March 8, 2022, in the first criminal trial of a Capitol attack defendant, Three Percenters member Guy Reffitt became the first to be convicted of obstructing an official proceeding, along with other charges.[22] In November 2022, Stewart Rhodes, Kelly Meggs, and three other members of the Oath Keepers were convicted,[23] and four additional Oath Keepers members including Roberto Minuta were convicted in January 2023.[24][25] In May 2023, Proud Boys members Enrique Tarrio, Ethan Nordean, Joe Biggs, and Zachary Rehl were convicted.[26]

A number of other defendants have been convicted who are notable for various reasons. Kevin Seefried, who was photographed brandishing a Confederate flag and threatening police officer Eugene Goodman, was convicted in 2022.[27][28] In 2023, Richard Barnett was convicted, who had been prominently photographed in Speaker Nancy Pelosi's office during the attack,[29] as was Kevin James Lyons, who had stolen a wallet and photograph of John Lewis from Pelosi's office.[30] Ryan Samsel, the first to breach the restricted perimeter outside the Capitol, was convicted in 2024.[31]

West Virginia House of Delegates member Derrick Evans was charged with obstructing an official proceeding, but the charge was dropped in a plea deal in which he instead pleaded guilty to a felony civil disorder charge.[32]

In September 2022, Tristan Chandler and David Mehaffie became the first January 6 defendants to be acquitted of an obstructing an official proceeding charge, although they were convicted on other charges.[33] In January 2024, Joshua Black became the first defendant who had entered the Senate chamber to be acquitted, although he too was convicted on other charges.[34] Both acquittals were because prosecutors had not sufficiently proven their intent.[33][34]

Election obstruction conspiracy

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Main article: Federal prosecution of Donald Trump (election obstruction case)

In March 2022, in Eastman v. Thompson, a civil case regarding the House Select Committee on the January 6 Attack's subpoena of John Eastman's emails, Judge David O. Carter of the District Court for the Central District of California ruled that there was a preponderance of then evidence that Trump had conspired to obstruct the January 6 joint session of Congress. This is a lower burden of proof than the beyond reasonable doubt burden required for a criminal conviction.[35][36]

On August 1, 2023, two counts in the four-count indictment Donald Trump was charged with by a grand jury following the Smith special counsel investigation were for obstructing an official proceeding and conspiracy to obstruct an official proceeding for his conduct following the 2020 presidential election through the January 6 Capitol attack.[37][38]

Applicability dispute

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Some January 6 attack defendants argued that, given the circumstances of its passage, the law should apply only to proceedings involving the administration of justice where evidence is being presented, and not the Electoral College vote count as an administrative and ceremonial event.[1][39] Although two federal judges of the District Court for the District of Columbia initially expressed concerns in court about the law's use,[1][2] by March 2022, they and eight other federal judges had rejected challenges to the obstruction charge, finding that the law had been properly invoked and was not unconstitutionally vague.[1][40][41][42]

Fischer v. United States

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Main article: Fischer v. United States

However, on March 7, Carl J. Nichols became the first federal judge to rule that the law was not applicable to the Capitol attack, on the basis that the word "otherwise" in the statute required that the conduct must involve "some action with respect to a document, record, or other object".[42][43] At least two other district court judges subsequently criticized Nichols' reading of the statute in their own rulings.[44][45]

In August 2022, Nichols' rulings on three such defendants was appealed to the Court of Appeals for the District of Columbia Circuit as United States v. Fischer.[44][45][46] The hearing occurred on December 12, 2022.[47][48] On April 8, 2023, the court issued its ruling. While it held that obstruction did not have to pertain to a document, it noted that the requirement of "corrupt intent" required prosecutors to differentiate defendants' conduct from protected protest or lobbying activities. The ruling permitted the three challenged cases to continue on the basis that, as they were also charged with assaulting police, there was no question that they had acted with corrupt intent.[49][50]

The majority opinion, written by Judge Florence Pan, stated that a ruling on the meaning of "corrupt intent" should wait for another appropriate case to reach the court, but a concurring opinion by Judge Justin Walker explicitly adopted a narrower definition that "a defendant must intend to obtain a benefit that he knows is unlawful". It was not immediately clear which ruling was binding, due to a dispute between the two justices on whether Marks v. United States applied to the case.[49][50] While the ruling reversed Nichols' rulings, it was seen as potentially opening an avenue for those not charged with assaulting police to overturn an obstruction charge.[49] Judge Gregory Katsas wrote a dissenting opinion in which he said the pertinent part of the statute is limited to acts that “hinder the flow of truthful evidence to a proceeding.”[51]

In December 2023, the Supreme Court agreed to hear one of the three cases as Fischer v. United States.[52][53] In June 2024, it ruled in favor of Fischer that the charge only applied when "the defendant impaired the availability or integrity... of records, documents, objects, or other things used in an official proceeding, or attempted to do so."[54] This had the effect of setting a higher bar for conviction than had actually been used in trials to that point, and was expected to lead to dismissal of the charge or overturning of convictions in cases where this requirement had not been met.[55]

Other appeals

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A different appeal to the D.C. circuit court, Robertson v. United States, was heard in May 2023.[56][57] That October, the court upheld Robertson's conviction.[58][59]

Another appeal, United States v. Brock, ruled in March 2024 that a sentencing penalty for substantial interference with the administration of justice did not apply to the conduct during the January 6 attack. The ruling raised the possibility that more than 100 people already convicted would have to be resentenced.[60]

See also

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References

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  1. ^ a b c d e f g Parloff, Roger (December 14, 2021). "Government Wins Key Ruling on Issue Affecting Hundreds of Capitol Riot Cases". Lawfare. Retrieved January 15, 2022.
  2. ^ a b c Hsu, Spencer S. (September 8, 2021). "Second U.S. judge questions constitutionality of lead felony charge against Oath Keepers in Capitol riot". The Washington Post. ISSN 0190-8286. Retrieved January 15, 2022.
  3. ^ a b "Field Guidance on New Criminal Authorities Enacted in the Sarbanes-Oxley Act of 2002 (H.R. 3763) Concerning Corporate Fraud and Accountability". U.S. Department of Justice. August 1, 2002. Retrieved January 15, 2022.
  4. ^ a b Perino, Michael A. (2002). "Enron's Legislative Aftermath: Some Reflections on the Deterrence Aspects of the Sarbanes-Oxley Act of 2002". SSRN Electronic Journal. doi:10.2139/ssrn.350540. ISSN 1556-5068.
  5. ^ "18 U.S. Code § 1512 - Tampering with a witness, victim, or an informant". Cornell Law School. Retrieved January 15, 2022.
  6. ^ Bush, George W. (July 30, 2002). "Statement on Signing the Sarbanes-Oxley Act of 2002". The American Presidency Project. Retrieved January 15, 2022.
  7. ^ a b Wilbur A., Glahn III (January 1, 2002). "The Sarbanes-Oxley Act: New Criminal Liability for Destruction of Corporate Documents". McLane Middleton. Retrieved January 15, 2022.
  8. ^ Greenhouse, Linda (May 31, 2005). "Justices Unanimously Overturn Conviction of Arthur Andersen". The New York Times. ISSN 0362-4331. Retrieved January 15, 2022.
  9. ^ "Colombo Family Soldier Sentenced to 50 Years in Prison". U.S. Federal Bureau of Investigation. April 28, 2014. Retrieved January 15, 2022.
  10. ^ McMahon, Paula (April 4, 2014). "Broward elementary school teacher admits she alerted drug dealers to investigation". South Florida Sun Sentinel. Retrieved January 15, 2022.
  11. ^ Kully, David C.; Fuentes, Amy L. (April 6, 2017). "Obstruction Sentence Underscores Importance of Compliance with Government Process". Holland & Knight Regulatory Litigation Blog. Retrieved January 15, 2022.
  12. ^ Prokop, Andrew (November 15, 2019). "Roger Stone was just found guilty on all counts". Vox. Retrieved January 15, 2022.
  13. ^ Shafer, Jack. "Week 88: Did Stone's Indictment Finally Tie Trump's Campaign to Russia?". Politico Magazine. Retrieved January 15, 2022.
  14. ^ Haberman, Maggie; Schmidt, Michael S. (December 24, 2020). "Trump Gives Clemency to More Allies, Including Manafort, Stone and Charles Kushner". The New York Times. ISSN 0362-4331. Retrieved January 15, 2022.
  15. ^ "United States District Court District Of Massachusetts: United States Of America v. (1) Shelley M. Richmond Joseph and (2) Wesley Macgregor, defendants". U.S. Department of Justice. April 25, 2019. Retrieved January 15, 2022.
  16. ^ "Statement From United States Attorney Zachary A. Cunha Regarding United States v. Joseph". U.S. Attorney's Office, District of Massachusetts. September 22, 2022. Retrieved September 22, 2022.
  17. ^ Parloff, Roger (December 8, 2022). "A Crucial Appeal for Capitol Riot Prosecutions: D.C. Circuit to Hear Arguments Challenging the Felony Charge Used in 290 Cases". Lawfare. Retrieved January 26, 2023.
  18. ^ Draper, Kevin (September 29, 2021). "Klete Keller, a 3-Time Olympian, Pleads Guilty in Capitol Riot Case". The New York Times. Retrieved September 29, 2021.
  19. ^ Williams, Pete (April 16, 2021). "Prosecutors secure first guilty plea in Capitol riot cases". NBC News. Retrieved January 15, 2022.
  20. ^ "Founder of Proud Boys' Hawaii chapter, Texas man sentenced to 4 years in Jan. 6 riot". NBC News. December 10, 2022. Archived from the original on December 11, 2022. Retrieved December 12, 2022.
  21. ^ "'You're going to die': Jan. 6 rioter who filmed himself assaulting officers pleads guilty". NBC News. October 2022. Retrieved December 12, 2022.
  22. ^ Feuer, Alan (March 8, 2022). "Texas Man Convicted in First Jan. 6 Trial". The New York Times. ISSN 0362-4331. Retrieved March 9, 2022.
  23. ^ "Leader of Oath Keepers and Oath Keepers Member Found Guilty of Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach". U.S. Department of Justice. November 29, 2022. Retrieved November 30, 2022.
  24. ^ "Four Oath Keepers Found Guilty of Seditious Conspiracy Related to U.S. Capitol Breach". U.S. Department of Justice. January 23, 2023. Retrieved January 26, 2023.
  25. ^ Legare, Robert (January 23, 2023). "Four Oath Keepers members found guilty of seditious conspiracy in Jan. 6 case". CBS News. Retrieved January 26, 2023.
  26. ^ Kunzelman, Michael; Whitehurst, Lindsay; Durkin Richer, Alanna (May 4, 2023). "Proud Boys' Tarrio guilty of Jan. 6 seditious conspiracy". Associated Press. Archived from the original on September 9, 2023. Retrieved March 26, 2024.
  27. ^ Lybr, Holmes (February 9, 2023). "Man who used Confederate flag against Capitol Police officer on January 6 sentenced to 3 years in prison | CNN Politics". CNN. Retrieved February 10, 2023.
  28. ^ Lybr, Holmes (February 9, 2023). "Man who used Confederate flag against Capitol Police officer on January 6 sentenced to 3 years in prison | CNN Politics". CNN. Retrieved February 10, 2023.
  29. ^ Duggan, Paul (January 23, 2023). "Man photographed in Pelosi's office on Jan. 6 convicted of 8 counts". The Washington Post. ISSN 0190-8286. Retrieved January 26, 2023.
  30. ^ Miller, Violet (April 8, 2023). "Chicago man who recorded himself inside Nancy Pelosi's office convicted in Jan. 6 riot". Chicago Sun-Times. Archived from the original on May 19, 2023. Retrieved July 15, 2023.
  31. ^ "District of Columbia | Five Men Found Guilty of Multiple Felony and Misdemeanor Charges for Actions Related to Jan. 6 Capitol Breach | United States Department of Justice". www.justice.gov. February 2, 2024. Retrieved February 4, 2024.
  32. ^ Hessler, Courtney (March 18, 2022). "Ex-W.Va. delegate admits role in Capitol riot". The Herald-Dispatch. Archived from the original on March 21, 2022. Retrieved March 21, 2022.
  33. ^ a b Fischer, Jordan (September 13, 2022). "Judge convicts three Capitol rioters of multiple felonies — but says DOJ didn't prove two obstruction counts". WUSA 9. Retrieved March 26, 2024.
  34. ^ a b Cheney, Kyle (January 13, 2023). "Judge finds Jan. 6 defendant who breached Senate chamber not guilty of obstruction". Politico. Retrieved March 26, 2024.
  35. ^ Barnes, Daniel; Gregorian, Dareh (March 28, 2022). "Trump probably broke the law in an effort to obstruct Jan. 6 proceedings, judge says". NBC News. Retrieved March 26, 2024.
  36. ^ Broadwater, Luke; Feuer, Alan; Haberman, Maggie (March 28, 2022). "Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election". The New York Times. Retrieved March 26, 2024.
  37. ^ "Trump indicted for efforts to undermine the 2020 election". PBS NewsHour. WETA. August 1, 2023. Retrieved August 1, 2023.
  38. ^ Grabenstein, Hannah; Serino, Kenichi (August 1, 2023). "Read the full indictment against Trump for his alleged efforts to overturn the 2020 election". PBS NewsHour. WETA. Retrieved August 1, 2023.
  39. ^ Kanefield, Teri (February 15, 2022). "Perspective | Jan. 6 defendants are raising a creative defense. It isn't working". The Washington Post. ISSN 0190-8286. Retrieved February 17, 2022.
  40. ^ Swanson, Ian (December 21, 2021). "Federal judge rules against Oath Keepers, upholding felony charge". The Hill. Retrieved January 15, 2022.
  41. ^ Sarnoff, Marisa (January 21, 2022). "Sixth Federal Judge Rejects Attempt to Dismiss Jan. 6 Federal Obstruction Charge, This Time Against 'Murder the Media' Duo". Law & Crime. Retrieved January 24, 2022.
  42. ^ a b Sarnoff, Marissa (March 8, 2022). "Federal Judge Departs from Rulings by 10 Peers, Tosses Obstruction Charge in Jan. 6 Case". Law & Crime. Retrieved June 14, 2022.
  43. ^ Hsu, Spencer S.; Jackman, Tom; Weiner, Rachel (March 8, 2022). "U.S. judge dismisses lead federal charge against Jan. 6 Capitol riot defendant". Washington Post. ISSN 0190-8286. Retrieved March 9, 2022.
  44. ^ a b Fischer, Jordan (June 22, 2022). "Justice Department asks appeals court to overturn judge who dismissed Capitol riot charges". WUSA 9. Retrieved June 23, 2022.
  45. ^ a b Fischer, Jordan (August 8, 2022). "DOJ appeals 'absurd' ruling, wants felony charges reinstated in Jan. 6 cases". WUSA 9. Retrieved August 10, 2022.
  46. ^ DOJ Appellant Brief in Joseph Fischer, Edward Lang and Garrett Miller Cases. U.S. Department of Justice. August 8, 2022. Retrieved August 9, 2022 – via Internet Archive.
  47. ^ Weiner, Rachel; Hsu, Spencer S. (December 12, 2022). "Federal appeals judges weigh fate of hundreds of Jan. 6 cases". Washington Post. ISSN 0190-8286. Retrieved January 26, 2023.
  48. ^ Sneed, Tierney (December 12, 2022). "Appeals court weighs DOJ's use of obstruction charge in January 6 Capitol rioter cases". CNN. Retrieved January 26, 2023.
  49. ^ a b c "Appeals court ruling puts hundreds of Jan. 6 felony cases in limbo". POLITICO. Retrieved April 8, 2023.
  50. ^ a b "United States of America, Appellant v. Joseph W. Fischer, Appellee" (PDF).
  51. ^ Macagnone, Michael. “Supreme Court to decide issue tied to hundreds of Jan. 6 cases”, Roll Call (December 13, 2023).
  52. ^ Cheney, Kyle; Gerstein, Josh (December 13, 2023). "Supreme Court will review scope of obstruction law that Trump is charged with breaking". Politico. Retrieved December 14, 2023.
  53. ^ Wehle, Kimberly (January 17, 2024). "The 'Sleeping Giant' Case that Could Upend Jack Smith's Prosecution of Trump". Politico. Retrieved January 18, 2024.
  54. ^ "Fischer v. United States" (PDF). Supreme Court of the United States. June 28, 2024. Retrieved July 3, 2024.
  55. ^ Marimow, Ann E.; Barrett, Devlin (June 29, 2024). "Justices strike obstruction charge for Jan. 6 defendant, likely impacting others". Washington Post. ISSN 0190-8286. Retrieved July 3, 2024.
  56. ^ Cheney, Kyle (May 11, 2023). "Three-judge panel poised to uphold Jan. 6 obstruction cases". Politico. Retrieved May 18, 2023.
  57. ^ Jackman, Tom; Weiner, Rachel (May 17, 2023). "Did Jan. 6 defendants act 'corruptly'? An appeals court weighs the question". Washington Post. ISSN 0190-8286. Retrieved May 18, 2023.
  58. ^ Cheney, Kyle; Gerstein, Josh (October 20, 2023). "Appeals court upholds broad use of obstruction law that prosecutors have deployed against Trump". Politico. Retrieved December 17, 2023.
  59. ^ Polantz, Katelyn (October 20, 2023). "Appeals court upholds January 6 obstruction prosecution, in a ruling that could bolster case against Trump". CNN. Retrieved December 17, 2023.
  60. ^ Weiner, Rachel; Hsu, Spencer S. (March 4, 2024). "Appeals court ruling means over 100 Jan. 6 rioters may be resentenced". Washington Post. ISSN 0190-8286. Retrieved March 26, 2024.
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  • 18 U.S.C. § 1505, regarding a person who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States….”
  • 18 U.S.C. § 1519, regarding a person who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States….”
  • Congressional Research Service (December 27, 2007). "Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities". Obstruction of justice is the impediment of governmental activities. There are a host of federal criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and common law). All but Section 1503 cover congressional activities.
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