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The impeachment inquiry against former President Donald Trump should draw the attention of business leaders, but not for the reasons they might immediately suspect.
Because some of the key obstruction laws that Trump has been accused of violating have their roots in the Sarbanes-Oxley Corporate Responsibility Act. Designed to prevent the concealment, destruction or alteration of evidence during an investigation, these statutes of limitations were enacted in response to conduct that contributed to accounting scandals in the early 2000s. They are business oriented.
Since then, they have been used routinely in business contexts, not just in presidential records. They are focused on individuals, whether in business or politics, who, when they or their companies, are under government control, play fast and with records and documents. And with the government now focusing on individual accountability for corporate fraud, the pressure to do so will increase.
Obstruction of justice is not some legal minor or vague enforcement theory. Rather, it is a concept that has had considerable effect in both state and federal law. In general, it refers to a crime committed against the justice system itself, and it is taken very seriously by judges and prosecutors.
Basically, “obstruction” can occur when a person takes illegal action to prevent a government process from moving forward, such as by intentionally interfering with an investigation or with persons conducting or participating in the investigation. Classic examples of obstruction include lying to federal investigators, influencing witnesses or concealing, destroying, or fabricating evidence. Think Richard Nixon, John Mitchell, and Bill Clinton (though only Mitchell was ultimately accused of obstruction).
Trump’s indictment includes seven counts of obstruction-related charges, including “conspiracy to obstruct justice”; “keeping a document or record”; “corruptly concealing a document or record”; Or “concealing a document in a federal investigation,” Trump is charged with two counts of “making false statements and representations.”
Simply put, these counts allege that Trump lied to the FBI, conspiring with others to make false statements and affidavits about the extent of his cooperation with the government; and withheld requested documents from the attorney and encouraged the attorney to conceal or destroy documents requested by government subpoenas.
And while the documents and statements against Trump all relate to classified material, he doesn’t need to be a government official to commit the obstruction crimes he’s accused of. The prohibitions against hiding and tampering with documents, false certificates, and making false and misleading statements to government investigators represent a core part of Sarbane’s obstruction laws and are routinely applied in government corporate fraud investigations.
If you look closely, you’ll see regular news stories about the government prosecuting individuals who try to “throw the monkey wrench” in an investigation or proceeding. And you create the connection.
Because at its core, obstruction is not a political crime, it’s a crime, and recording crimes should always be a top corporate compliance concern.
This is where the broader relevance of Trump’s impeachment comes in. It helps raise awareness in the business community about the nature of obstruction of justice laws and the types of conduct they prohibit. It points to a visceral emotion that may drive a thwarting effort. Corporate fraud enforcement increases sensitivity to the current environment where individual accountability is prioritized and corporate compliance is encouraged.
And it’s a reminder that even if defendants accused of corporate fraud can sometimes win major government charges, they can be tricked into perjury, document destruction, witness intimidation in an effort to obstruct the investigation of that wrongdoing. , or other efforts (covert or otherwise) to conceal evidence.
If history is any guide, there will always be executives and managers to cut corners, bend the rules, and push the envelope of ethics. Indeed, the “smartest guys in the room” can be found in any organization (to do harm). Therefore, it becomes the responsibility of management to create and maintain a culture of obedience where employees and their attitudes are not accepted.
That’s why the final message to those leaders from Trump’s impeachment trial is that “the tone at the top” is a critical value. The importance of senior executives setting high standards for corporate responsibility and effective compliance programs. It is also a culture that supports management’s efforts to remove “weeds” from the organization that view deviousness as a virtue. Deception as a skill; Fixation as a weakness, and “I never caught on” as an acceptable strategy.
As former President Nixon famously said, “[It’s not the crime], it’s the cover that hurts. If you cover us, you will be caught. It looks like he might be right about that.
The basis of this discussion is that Trump has the right to be presumed innocent in advance of his trial.
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