Torture-tapes template

Bush-administration lawyers could be nailed for their role in destroying evidence in the CIA scandal, thanks to a quiet Connecticut child-porn case
By HARVEY SILVERGLATE  |  December 16, 2008

Did the Bush-administration lawyers, and the CIA operatives they advised, commit obstruction of justice by destroying the now-infamous CIA-interrogation videotapes? A recent but little-known obstruction prosecution in a Connecticut federal court sheds light on how this pivotal question is likely to be resolved, and could serve as a template for how the Department of Justice will prosecute those involved in the tapes scandal.

In October 2006, officials of Christ Church of Greenwich approached well-reputed local attorney Philip Russell for legal advice when they discovered child pornography on a church computer assigned to its organist, Robert Tate. After considering the options, Russell advised the church to fire Tate, recommended to the dismissed employee that he obtain his own lawyer, and then destroyed the computer’s hard drive.

Many lawyers — myself included — might have advised and acted much as Russell did. Had he left the images intact, he would arguably have put the church, and himself, at further risk of being prosecuted for the possession of contraband. Child pornography, like heroin and a few other such items, is in a legal category that makes it criminal to possess under virtually any and all circumstances.

Had Russell handed over the laptop to the FBI with the hard drive and files intact, he could have incriminated his client — the church, or its officers. And unless the FBI believed that no church official knew about or condoned that particular use of the church’s computer, the church could be liable for the hard drive’s contents, because it technically owned the computer.

Advising a client about what to do with contraband found on its premises is one of the most challenging scenarios a lawyer faces, requiring difficult and controversial judgment calls. Lawyers and legal ethicists differ as to how it should be dealt with under various circumstances. Yet federal prosecutors in the United States Attorney’s Connecticut office shocked nearly everyone, including members of the Connecticut bar and legal experts, when they indicted Russell in February 2007 on obstruction-of-justice charges for destroying the pornographic images.

The FBI had begun investigating the church’s organist three days before Russell destroyed the hard drive, but the fact that Russell had no knowledge of the investigation was irrelevant to the feds. This is because he was charged not under traditional federal obstruction-of-justice statutes — where one has to know of the existence of an investigation in order to be guilty of obstructing it — but rather under two relatively new provisions of the so-called Sarbanes-Oxley Act, named after its legislative sponsors.

Sarbanes-Oxley makes it a felony, punishable by up to 20 years in prison, for anyone to “knowingly alter, destroy, [or] mutilate . . . any documents or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter.” Under that extraordinarily broad law, destroying materials can be considered obstruction even when no formal investigation has begun and no subpoena has been received. Indeed, no investigation ever has to begin in order for there to be a violation of this law, as long as the person who destroys the materials understands that an investigation could follow, or that the materials might be useful in the “proper administration of any matter,” whatever that might mean.

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