A General Counsel Charged With Obstructing Justice

The author defended the general counsel of the company formerly known as Blackwater, who was indicted on two counts of obstruction of justice. She and her legal team argued that he was providing bona fide legal advice to his client when he committed the predicate acts, and should not have been indicted in the first place. They relied on 18 U.S.C. §1515©, which states that legitimate representation of a client shouldn’t be a basis for an obstruction offense.

In a 2001 case, the Eleventh Circuit ruled that §1515(c) was an affirmative defense that had to be raised by the attorney-defendant. The author’s team argued that the case had been wrongly decided. In their view, the statute required the government to plead in the indictment the inapplicability of §1515(c). They also noted that felony charges must be presented to a grand jury, and that an accused criminal defendant must “be informed of the nature and cause of the accusation.”

In this case, had the grand jury been aware of §1515(c) when it was considering whether the charged conduct was criminal, it well might have decided not to indict.

A judge in the U.S. District Court, Eastern District of North Carolina, agreed that the government must allege in any indictment charging an attorney with obstruction of justice that the attorney was not providing bona fide, lawful legal representation services at the time. The author’s client was spared a trial.