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President’s Message

 

June 2017

 

     Unless you have been hiding under a rock for the last few weeks, you have probably seen and/or heard the news coverage regarding the various investigations into federal election tampering. Recent events, including the termination of FBI Director Comey, have raised questions regarding the federal government’s role and its enforcement of key criminal provisions of the US Code and Constitution. These events have led to many questions from clients, friends and family about the legal significance and threshold of the allegations at hand.  I am sure that I am not alone amongst members of our bar.  In response, I have sought to have a better understanding of the legal definition of “obstruction of justice,” “collusion” and “treason” and how those definitions differ between state and federal law.

Obstruction of Justice

             Under California Penal Code § 135, it is a crime to “willfully and knowingly destroy or conceal any piece of evidence that may be used in a trial or government investigation of any kind.” The California Penal Code defines “any kind of evidence” to include digital images and video recordings. Also under California Penal Code §§ 132 and 134, it is illegal to “offer or prepare false evidence to be used in a legal proceeding.”

Similarly, under 18 U.S. Code § 1505 “it is illegal to intend to avoid, evade, prevent or obstruct compliance in whole or in part with any civil investigation demand duly appointed under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, cover up, destroys, mutilate, alters or by other means falsifies any documentary material, answers to written interrogatories or oral testimony.”

Collusion

            California Code of Civil Procedure § 1916 defines collusion as “…any judicial record may be impeached by evidence of a want of jurisdiction in the Court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings.”Additionally, California Business and Professions Code § 6128 goes further to state that “every attorney is guilty of a misdemeanor who either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.”

Similarly, under 18 US Code § 201, it is illegal to “directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—

(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public            official to commit or aid in committing, or collude in, or allow, any fraud, or make     opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official or such person who has been selected to be a public        official to do or omit to do any act in violation of the lawful duty of such official or        person.”

Treason

            Lastly, under California Penal Code § 37, treason is defined as “a person who owes allegiance to the State is guilty of ‘treason against the state’ if they wage war against it; assist its enemies; and give enemies of the government aid and comfort.”

Similarly, under section 18 U.S. Code § 2381, treason is defined as “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Conclusion

Regardless of an individual’s political leanings, we can all agree that an attorney is required to uphold state and federal law.  We are also expected by the public to have a basic understanding of what those laws are.  Once we and those in our circles of influence have an understanding of the statutes being implicated, we can have a more informed and elevated conversation about this very important topic.

Daren Lipinsky

WSBCBA President