Should the government be able to use internal judiciary investigations as the basis of a criminal obstruction of justice prosecution? That is just the issue raised in the federal prosecution of United States District Judge Samuel Kent of the Southern District of Texas currently pending.
On January 6, the federal prosecutors obtained a superseding indictment against Judge Kent adding three additional counts; one count of aggravated sexual abuse, one count of abusive sexual contact, and one count of obstruction of justice. These are in addition to the original three counts which included two counts of abusive sexual contact and one count of attempted aggravated sexual abuse.
The sexual abuse counts are standard federal counts pursuant to 18 U.S.C. §§ 2241 and 2244. However, the interesting issue is the obstruction of justice charge pursuant to 18 U.S.C. § 1512(c)(2). That section forbids a person from improperly obstructing, influencing, or impeding “any official proceeding.”
What makes the charge unusual, and potentially problematic, is that it stems from a civil investigation by the United States 5th Circuit Court of Appeals itself. The Judicial Conduct and Disability Act of 1980 allows the respective federal circuits to discipline district judges and establishes an internal judicial procedure.
The question becomes can and should federal prosecutors be allowed to utilize the independent civil investigation by the judiciary as a basis for a criminal prosecution? Certainly making misstatements during an official proceeding of any kind can subject the person to to criminal prosecution, but should there be concern in this case? Does this cause separation of powers problems?
Obviously as a general rule, we advise clients against making any misstatements during such a proceeding. Whether a disbarrment hearing or a civil deposition, they can all result in criminal prosecutions. But should there be an exception for the judiciary, or perhaps better said, does the separation powers mandate such a result?
I’m of the opinion there should be. If the judiciary is given the opportunity to investigate and take action on fellow judges as is provided by the Judicial Conduct and Disability Act, then it should remain within the judiciary.
This is not to say that judges are immune from criminal prosecution. As is the case in the Kent matter, clearling there are standard criminal allegations stemming from his alleged conduct that can be prosecuted. But the independent, non-partisan, internal civil investigation by the judicial district itself should remain in house and away from the clutches of politically-appointed federal prosecutors.
Great post.It should be the federal prosecutors be allowed to utilize the independent civil investigation by the judiciary.would that make it right?No thank you
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Post.It Se debe tener mucho de los fiscales federales se permitirá utilizar la investigación civil independiente por el poder judicial
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