Pence and Obstruction of Justice


Professor Jed Shugerman’s blog post on the possibility of Vice President Mike Pence being guilty of obstruction of justice was featured in Take Care blog.

  1. Conspiracy to obstruct justice and aiding obstruction of justice

If the New York Times account is correct, then Pence read the first draft of the letter, and the letter indeed had conveyed that Trump was focused on the Russia investigation. Pence is a lawyer, so he would be held to a higher standard for understanding the basics of obstruction of justice.

  1. Misprision of a felony

“Misprision of a felony” is found in 18 U.S.C. 4, right after the “aiding and abetting” and “accessory after the fact” statutes:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

If Pence had read Trump’s letter, and if the letter’s “screed” in fact focused on the Russia investigation, Pence’s answers would be a combination of lies, misrepresentation, and concealment. If the allegations are true, then the combination of Pence’s participation in the letter revision and his lies afterward would constitute the affirmative acts necessary for misprision.

  1. Public officials are held to a higher duty

Historically, courts have held public officials to a higher duty for misprision. Blackstone himself seemed to indicate that English statutes placed higher duties on public officials, relative to private individuals, to report crimes.

If the reports are correct that Pence heard Trump read his draft letter, a “screed” emphasizing Comey’s handling of the Russia probe, that he may have participated in feedback or revision to conceal that intent, then Pence is in legal jeopardy for obstruction of justice, either as conspiracy, aiding and abetting, or misprision of a felony.


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