Uncovering the Cover-Up Crimes

Abstract

Few white collar crime cases in recent years have generated as much interest or controversy as the obstruction of justice, perjury, and false statements prosecutions of Martha Stewart, Frank Quattrone, Arthur Andersen, Jeffrey Archer, Bill Clinton, and Oliver North. There is a vague sense, often expressed in the media, that there is something unfair, vindictive, or petty about prosecuting people for covering up their putative wrongdoing, particularly when such wrongdoing is itself determined not to merit criminal prosecution. Such views, however, are usually expressed in an ad hoc and theoretically inconsistent manner that seems to have as much to do with how the speaker feels about a given defendant's public persona as with any clearly articulated or theoretically sound evaluation of the defendant's case.

This article offers a comprehensive framework for thinking about the moral content of the obstruction-type offenses. It argues that the degree to which an obstructer or perjurer should be viewed as blameworthy reflects a complex interplay of factors that can be grouped, loosely, into three broad categories: (1) the seriousness of the underlying wrongdoing (if any) being covered up; (2) the legitimacy of the government's investigation into, or adjudication of, such wrongdoing; and (3) the scope and effect of the cover-up itself. Among the wide variety of issues the article deals with are those raised by cases in which a defendant seeks to obstruct injustice, as where she is being prosecuted under an unjust law or for illegitimate reasons. Of particular concern are those cases in which the government traps a defendant into committing obstruction or perjury by seeking evidence that it knows the subject of the investigation is likely to cover up. The article also deals with cases in which a defendant lies or fabricates evidence not for the purpose of wrongfully exculpating a wrongdoer (usually himself) but, rather, for the purpose of wrongfully inculpating an innocent person (as is alleged to have occurred, for example, in the case of Tawana Brawley). It suggests that, other things being equal, such inculpatory obstruction is even more wrongful than the exculpatory kind.

Keywords: Criminal law, legal theory, white collar crime, obstruction of justice, criminal contempt, perjury, false statements, misprision of felony

JEL Classification: J14, J41, J42