Criminal Inquiry Launched for Missing Secret Service Texts

department of homeland security orders secret service to halt internal investigation

By Jonny Lupsha, Wondrium Staff Writer

The Secret Service deleted texts from January 6, 2021. The inspector general from the Department of Homeland Security has said a criminal investigation is coming. Understanding obstruction of justice is crucial to forming an opinion.

Justice scales concept with light background
If a person had knowledge of a pending court proceeding and had shown the specific intent to obstruct the proceeding, for example, through the destruction of evidence, they can be criminally prosecuted for obstruction of justice. Photo by Aerial Mike / Shutterstock

On July 19, the United States Secret Service acknowledged that it had deleted texts related to the January 6th insurrection—and that they did so after Congress and federal investigators had requested the texts. It has been reported that the texts were deleted as part of a “device-replacement program” and not done maliciously. However, the deletion has raised the specter of lost evidence related to ongoing investigations into the insurrection.

On the heels of one pundit suggesting the act constituted obstruction of justice, Gladys Ayala, the Homeland Security Department’s deputy inspector general, has directed the Secret Service to stop its own internal investigation into the text erasure. Ayala said the internal investigation by the Secret Service risks interfering with a, heretofore, unannounced criminal investigation into the matter.

The public will have to wait for some time before the motives and exact nature of the deletion are determined. In the meantime, what is obstruction of justice? In his video series White Collar Criminal Law Explained, Professor Randall D. Eliason, Professorial Lecturer in Law at The George Washington University Law School, explains what obstruction is and which acts it covers.

Defining Obstruction of Justice

“The grandfather of obstruction of justice statutes is Title 18, United States Code, Section 1503,” Professor Eliason said. “That statute makes it a crime to interfere with, threaten, or harm jurors and judicial officers. It also contains a more general prohibition that has become known as the ‘omnibus clause.'”

The so-called “omnibus clause” that contains the catch-all prohibition of obstruction also punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

A new section to the U.S. Code pertaining to obstruction of justice, Section 1512 of Title 18, was added in 2002 in the wake of the Enron and Worldcom scandals, providing another catch-all prohibition. It widened the net to include anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so.”

This Is Normal, I Promise

Many acts done with “corrupt intent” may become crimes.

“I have the right to throw my laptop in the river if I want to; although, I might risk being charged with littering,” Professor Eliason said. “But if I do it in order to destroy the files that have been subpoenaed by a grand jury, that otherwise lawful act is now done with corrupt intent and may be obstruction of justice.”

In the weeks leading up to a formal subpoena from the SEC, Enron auditor Arthur Andersen had paper shredders running around the clock to destroy millions of pages of Enron documents. Andersen and others told employees they were just following their internal “document retention policy.”

He was indicted and convicted at trial, but he appealed and the U.S. Supreme Court reversed his conviction on grounds that the jury hadn’t been properly instructed on the requirement of “corrupt intent” in an obstruction case. In other words, someone forgot to instruct the jury that Anderson’s involvement in the shredding was done with corrupt intent. It was instructed only to determine if Andersen had sought to “subvert, undermine, or impede” any investigation into Enron.

If the Secret Service’s text deletion ever goes to trial, proving corrupt intent will be the prosecution’s responsibility.

White Collar Criminal Law Explained is now available to stream on Wondrium.