Obstruction of Congress: An Abridged Overview of Federal Criminal Laws Relating to Interference with Congressional Activities
Prepared for Members and Committees of Congress
Obstruction of justice is the frustration of governmental purposes by violence, corruption,
destruction of evidence, or deceit. It is a federal crime. In fact, it is several crimes. Obstruction
prosecutions regularly involve charges under several statutory provisions. Federal obstruction of
justice laws are legion; too many for even passing reference to all of them in a single report.
The general obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal
witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal
court proceedings), 1505 (obstruction of pending Congressional or federal administrative
proceedings), 371 (conspiracy), and contempt. Other than Section 1503, each prohibits
obstruction of certain Congressional activities. In addition to these, there are a host of other
statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.
This is an abridged version of CRS Report RL34304, Obstruction of Congress: a Brief Overview
of Federal Law Relating to Interference with Congressional Activities, by Charles Doyle, without
the footnotes, quotations, or citations to authority found in the longer report.
Section 1512 applies to the obstruction of federal proceedings – Congressional, judicial, or
executive. It consists of four somewhat overlapping crimes: use of force or the threat of the use of
force to prevent the production of evidence (18 U.S.C. 1512(a)); use of deception or corruption or
intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or
concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness harassment to
prevent the production of evidence (18 U.S.C. 1512(d)).
Subsection 1512(a) has slightly different elements depending upon whether the offense involves a
killing or attempted killing – 18 U.S.C. 1512(a)(1), or some other use of physical force or a threat
– 18 U.S.C. 1512(a)(2). In essence, it condemns the use of violence to prevent a witness from
testifying or producing evidence for an investigation and sets its penalties according to whether
the obstructive violence was a homicide, an assault or a threat.
Subsection 1512(k) makes conspiracy to violate Section 1512 a separate offense subject to the
same penalties as the underlying offense. The section serves as an alternative to a prosecution
under 18 U.S.C. 371 that outlaws conspiracy to violate any federal criminal statute. Section 371 is
punishable by imprisonment for not more than 5 years and conviction requires the government to
prove the commission of an overt act in furtherance of the scheme by one of the conspirators.
Subsection 1512(k) has no specific overt act element, and the courts have generally declined to
imply one under such circumstances. Regardless of which section is invoked, conspirators are
criminally liable under the Pinkerton doctrine for any crime committed in the foreseeable
furtherance of the conspiracy.
Accomplices to a violation of subsection 1512(a) may incur criminal liability by operation of 18
U.S.C. 2, 3, 4, or 373 as well. Section 2 treats accomplices before the fact as principals, that is, it
declares that those who command, procure or aid and abet in the commission of a federal crime 1
by another, are to be sentenced as if they committed the offense themselves. As a general rule, in
order to aid and abet another to commit a crime it is necessary that a defendant in some way
associate himself with the venture, that he participate in it as in something he wishes to bring
about, that he seek by his action to make it succeed. It is also necessary to prove that someone
else committed the underlying offense. Section 3 outlaws acting as an accessory after the fact,
which occurs when one knowing that an offense has been committed, receives, relieves, comforts
or assists the offender in order to hinder his or her apprehension, trial, or punishment. Prosecution
requires the commission of an underlying federal crime by someone else. Offenders face
sentences set at one half of the sentence attached to the underlying offense, or if the underlying
offense is punishable by life imprisonment or death, by imprisonment for not more than 15 years
(and a fine of not more than $250,000). The elements of misprision of felony under 18 U.S.C. 4
are (1) the principal committed and completed the felony alleged; (2) the defendant had full
1 18 U.S.C. 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense against the United States, is punishable as a principal”).
knowledge of that fact; (3) the defendant failed to notify the authorities; and (4) defendant took
steps to conceal the crime. The offense is punishable by imprisonment for not more than 3 years
and/or a fine of not more than $250,000. Solicitation to commit an offense under subsection
1512(a), or any other crime of violence, is proscribed in 18 U.S.C. 373. To establish solicitation
under §373, the Government must demonstrate that the defendant (1) had the intent for another to
commit a crime of violence and (2) solicited, commanded, induced or otherwise endeavored to
persuade such other person to commit the crime of violence under circumstances that strongly
corroborate evidence of that intent. Section 373 provides an affirmative statutory defense if an 2
offender prevents the commission of the solicited offense. Offenders face penalties set at one
half of the sanctions for the underlying offense, but imprisonment for not more than 20 years, if
the solicited crime of violence is punishable by death or imprisonment for life. A subsection
1512(a) violation opens up the prospect of prosecution for other crimes for which a violation of
subsection 1512(a) may serve as an element. The federal money laundering and racketeering
statutes are perhaps the most prominent examples of these. The racketeering statutes (RICO)
outlaw acquiring or conducting the affairs of an interstate enterprise through a pattern of predicate
offenses. Section 1512 offenses are RICO predicate offenses. RICO violations are punishable by
imprisonment for not more that 20 years (or imprisonment for life if the predicate offense carries
such a penalty), a fine of not more than $250,000 and the confiscation of related property. The
money laundering provisions, among other things, prohibit financial transactions involving the
proceeds of a predicate offense. RICO predicate offenses are by definition money laundering
predicate offenses. Money laundering is punishable by imprisonment for not more than 20 years,
a fine, and the confiscation of related property.
The second group of offenses within Section 1512 outlaws obstruction of federal Congressional,
judicial, or administrative activities by intimidation, threat, corrupt persuasion or deception. In
more general terms, subsection 1512(b) bans (1) knowingly, (2) using one of the prohibited forms
of persuasion (intimidation, threat, misleading or corrupt persuasion), (3) with the intent to
prevent a witness’s testimony or physical evidence from being truthfully presented at
Congressional or other official federal proceedings or with the intent to prevent a witness from
cooperating with authorities in a matter relating to a federal offense. It also bans any attempt to so
intimidate, threaten, or corruptly persuade. The conspiracy, accomplice, RICO and money
laundering attributes are equally applicable to subsection 1512(b) offenses.
2 18 U.S.C. 373(b), (c)(“(b) It is an affirmative defense to a prosecution under this section that, under circumstances
manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of
the crime solicited. A renunciation is not “voluntary and complete” if it is motivated in whole or in part by a decision to
postpone the commission of the crime until another time or to substitute another victim or another but similar objective.
If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a
preponderance of the evidence. (c) It is not a defense to a prosecution under this section that the person solicited could
not be convicted of the crime because he lacked the state of mind required for its commission, because he was
incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.”).
Subsection 1512(c) proscribes obstruction of official proceedings by destruction of evidence and
is punishable by imprisonment for not more than 20 years. Subsection 1512(d) outlaws harassing
federal witnesses and is a misdemeanor punishable by imprisonment for not more than one year.
Both enjoy the conspiracy, accomplice, RICO and money laundering attributes that to apply to all
Section 1512 offenses.
Section 1513 prohibits witness or informant retaliation in the form of killing, attempting to kill,
inflicting or threatening to inflict bodily injury, damaging or threatening to damage property, and
conspiracies to do so. It also prohibits economic retaliation against a federal witnesses, but only
witnesses in court proceedings and only on criminal cases. Its penalty structure is comparable to
that of Section 1503. Section 1513 offenses are RICO predicate offenses and money laundering
predicate offenses, and the provisions for conspirators and accomplices apply as well.
Section 1505 outlaws obstructing Congressional or federal administrative proceedings, a crime
punishable by imprisonment not more than 5 years (not more than 8 years if the offense involves
domestic or international terrorism). The crime has three essential elements. First, there must be a
proceeding pending before a department or agency of the United States. Second, the defendant
must be aware of the pending proceeding. Third, the defendant must have intentionally
endeavored corruptly to influence, obstruct or impede the pending proceeding. Section 1505
offenses are not RICO or money laundering predicate offenses. Conspiracy to obstruct
administrative or Congressional proceedings may be prosecuted under 18 U.S.C. 371, and the
general aiding and abetting, accessory after the fact, and misprision statutes are likely to apply
with equal force in the case of obstruction of an administrative or Congressional proceeding.
Section 371 contains both a general conspiracy prohibition and a specific obstruction conspiracy
prohibition in the form of a conspiracy to defraud proscription. The elements of conspiracy to
defraud the United States are: (1) an agreement of two more individuals; (2) to defraud the United
States; and (3) an overt act by one of conspirators in furtherance of the scheme. The fraud
covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or
defeating the lawful functions of any department of Government by deceit, craft or trickery, or at
least by means that are dishonest. The scheme may be designed to deprive the United States of
money or property, but it need not be so; a plot calculated to frustrate the functions of a
governmental entity will suffice.
Contempt of Congress is punishable by statute and under the inherent powers of Congress.
Congress has not exercised its inherent contempt power for some time. The statutory contempt of
Congress provision, 2 U.S.C. 192, outlaws the failure to obey a Congressional subpoena or the
refusal to answer questioning at a Congressional hearing. The offense is punishable by
imprisonment for not more than one year and a fine of up to $100,000.
Several other federal statutes outlaw use of threats or violence to obstruct federal government
activities. One, 18 U.S.C. 115 prohibits acts of violence against Members of Congress, judges,
jurors, officials, former officials, and their families in order to impede the performance of their
duties or to retaliate for the performance of those duties. It makes assault, kidnapping, murder,
and attempts and conspiracies to commit such offenses in violation of the section subject to the
penalties imposed for those crimes elsewhere in the Code. It makes threats to commit an assault
punishable by imprisonment for not more than 6 years and threats to commit any of the other
offenses under the section punishable by imprisonment for not more than 10 years. Another, 18
U.S.C. 1114, protects federal officers and employees as well as those assisting them, from
murder, manslaughter, and attempted murder and manslaughter committed during or on account
of the performance of their duties. The section’s coverage extends to government witnesses.
Other provisions protect federal officers and employees from kidnapping and assault committed
during or account of the performance of their duties, but their coverage of those assisting them is
less clear. Beyond these general prohibitions, federal law proscribes the murder, kidnapping, or
assault of Members of Congress, Supreme Court Justices, or Cabinet Secretaries; and a number of
statutes outlaw assaults on federal officers and employees responsible for the enforcement of
particular federal statutes and programs.
Section 201 outlaws offering or soliciting bribes or illegal gratuities in connection with judicial,
congressional and administrative proceedings. Bribery is a quid pro quo offense. It condemns
invitations and solicitations to corruption. The penalty structure for bribery is fairly distinctive:
imprisonment for not more than 15 years; a fine of the greater of three times the amount of the
bribe or $250,000; and disqualification from holding any federal position of honor or trust
The mail fraud and wire fraud statutes have been written and constructed with such sweep that
they cover among other things, obstruction of government activities by corruption. They reach
any scheme to obstruct the lawful functioning in the judicial, legislative or executive branch of
government that involves (1) the deprivation of money, property or honest services, and (2) the
use of the mail or wire communications as an integral part of scheme. Congress expanded the
scope of the mail and wire fraud statutes with the passage of 18 U.S.C. 1346 which defines the
“scheme to defraud” element in the fraud statutes to include a scheme “to deprive another of the
intangible right of honest services.” Some courts have said that honest services fraud in the public
sector typically occurs in either of two situations: (1) bribery, where a public official was paid for
a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal
gain. Prosecutors may favor a mail or wire fraud charge over or in addition to bribery charge if
for no the reason than that under both fraud sections offenders face imprisonment for not more
than 20 years rather than the 15-year maximum found in section 201.
Extortion under color of official right occurs when a public official receives a payment to which
he is not entitled, knowing it is being provided in exchange for the performance of an official act.
Liability may be incurred by public officers and employees, those in the process of becoming
public officers or employees, those who hold themselves out to be public officers or employees,
their coconspirators, or those who aid and abet public officers or employees in extortion under
color or official right. The payment need not have been solicited, nor need the official act for
which it is exchanged have been committed. The prosecution must establish that the extortion
obstructed, delayed, or affected interstate or foreign commerce, but the impact need not have
actually occurred nor been even potentially severe. Violations are punishable by imprisonment for
not more than 20 years.
Other than subsection 1512(c), there are three federal statutes which expressly outlaw the
destruction of evidence in order to obstruct justice: 18 U.S.C. 1519 prohibits destruction of
evidence in connection with federal investigation or bankruptcy proceedings, 18 U.S.C. 1520
prohibits destruction of corporate audit records, and 18 U.S.C. 2232(a) prohibits the destruction
of property to prevent the government from searching or seizing it.
In addition to the obstruction of justice provisions of 18 U.S.C. 1503 and 1512, there are four
other general statutes that outlaw obstructing the government’s business by deception. Three
involve perjury: 18 U.S.C. 1623 that outlaws false swearing before federal courts and grand
juries; 18 U.S.C. 1621 the older and more general prohibition that proscribes false swearing in
federal official matters (judicial, legislative, or administrative); and 18 U.S.C. 1622 that
condemns subornation, that is, inducing another to commit perjury. The fourth, 18 U.S.C. 1001,
proscribes material false statements concerning any matter within the jurisdiction of a federal
executive branch agency, and to a somewhat more limited extent with the jurisdiction of the
federal courts or a Congressional entity.
Senior Specialist in American Public Law