The subtle distinctions of obstruction and witness tampering.
The Mueller report’s discussion of obstruction of justice and witness tampering provides an excellent opportunity to consider how the instinct to say “don’t talk to the government” can prompt prosecution. (For those who enjoy reading legal analysis, the report has a lengthy discussion about witness tampering starting at the bottom of page 10 of volume 2.)
The relevant statute, 18 U.S.C. § 1512, makes it a crime to knowingly and corruptly persuade another person, with the intent to “influence, delay, or prevent the testimony of any person in an official proceeding,” or to “hinder, delay, or prevent communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense.”
It should come as no surprise that asking someone to lie to a government investigator is considered witness tampering. But as Mueller’s report notes, the law also covers “urging a witness to recall a fact that the witness did not know, even if the fact was actually true.” If your recollection of events differs from those of a colleague, and you are in the middle of an investigation, the act of trying to convince the colleague that they are misremembering can definitely be characterized as obstruction of justice. If I think things happened one way, and someone else thinks they didn’t, the act of discussing it can be a felony.
Similarly, telling a witness not to cooperate with law enforcement can violate the law. Mueller cites the case of United States v. Shotts, wherein a lawyer who was under investigation told his secretary that as long as she didn’t talk to the FBI, she “would not be bothered.” The government asserted that the statement could be construed as a threat. The defendant argued he was merely saying that it’s messy to speak with the government. The court felt that the jury reasonably determined that the lawyer had acted with a specific intent to undermine the integrity of truth-seeking with his statement, so he was convicted of witness tampering. In that case, the question was whether the lawyer was subtly issuing a threat. But you don’t need to threaten someone to be guilty of witness tampering. Harassment, the sort of behavior that some might call “pestering,” can be enough.
The lesson here: refrain from instructing staff not to interact with the government. Some nuance is appropriate here. You want staff to know that they are generally not required to talk with investigators, although please note that some licensed professionals must talk with their licensing boards. With that exception, it is safe to say that people are generally not obligated to speak with the government.
You have the absolute right to tell employees of this legal reality, but as you explain the right to remain silent, you need to do it properly. Compliance training should inform employees that they have the right to talk to the government while emphasizing they also have the right to refuse. If you have written policies about interactions with the government, make certain that they are clear. If you have a confidentiality provision, I recommend that you include a sentence making it clear that the provision does not prohibit sharing information with government regulators. In addition, make it clear that the decision to speak with an investigator belongs to the employee.
It is entirely appropriate to help the employee understand that there are significant risks in talking to a government agent, even if you do so very carefully. As soon as you say something like “it’s easier for everyone if you don’t talk to the government,” you may find yourself in the crosshairs of investigators. If you would like more information on strategies for training your staff on how to interact with government officials. Including a laminated card outlining tips for interactions with government agents, drop me an email.
