Friday, June 2, 2006

Pennsylvania Senate Aides Charged with Obstruction for Trying to Wipe E-Mails

Two aides in the Pennsylvania Senate's Democratic Computer Service's unit have been indicted for trying to wipe out a number of e-mails sent and received by powerful state Senator Vince Fumo, who represents a district in South Philadelphia.  Criminal complaints were filed against Mark Eister and Leonard Luchko charging conspiracy and obstruction of justice, and an attached affidavit (available here) by an FBI agent details numerous e-mails that were deleted allegedly at their direction from various computers and servers after an investigation began of the Senator's relationship with a  non-profit "organization" that has been identified as Citizens Alliance.  That organization received millions of dollars in funding from a local utility, and the FBI investigation sought to determine whether Senator Fumo received secret benefits from the non-profit.  An earlier Third Circuit opinion determined that the crime-fraud exception to the attorney-client privilege did not protect communications between an attorney and the Citizens Alliance's executive director because of the subsequent removal of e-mails (see earlier post here).  The agent's affidavit notes that in a number of instances only one copy of an e-mail could be recovered from different computer servers, showing once again how hard it is even for professionals to wipe out all traces of electronic correspondence.  A Philadelphia Daily News article (here) discusses the investigations of Senator Fumo.

The obstruction charge is based on 18 U.S.C. Sec. 1519, a provision adopted as part of the Sarbanes-Oxley Act in 2002 to make it easier to prosecute those who destroy documents in advance of the receipt of a government subpoena -- the Arthur Andersen law that could not have been applied to that firm under the Ex Post Facto Clause.  The law states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

The statute is potentially quite broad because it reaches conduct designed to obstruct even an as-yet unopened investigation, so long as the government can prove the defendant acted in "contemplation of any such matter or case."  Note also the substantial statutory penalty attached to this provision: 20 years. 

Another aspect of the investigation that raises an interesting parallel to the recent search of Representative William Jefferson's office in the Rayburn House Office Building is the fact that the FBI searched Senator Fumo's Philadephia district office.  Unlike members of the United States Congress, however, the Speech or Debate Clause does not provide any protection to state legislators, as the Supreme Court made clear in United States v. Gillock, 445 U.S. 160 (1980).  The Court stated:

[I]n those areas where the Constitution grants the Federal Government the power to act, the Supremacy Clause dictates that federal enactments will prevail over competing state exercises of power. Thus, under our federal structure, we do not have the struggles for power between the federal and state systems such as inspired the need for the Speech or Debate Clause as a restraint on the Federal Executive to protect federal legislators.

Apart from the separation of powers doctrine, it is also suggested that principles of comity require the extension of a speech or debate type privilege to state legislators in federal criminal prosecutions. However, as we have noted, federal interference in the state legislative process is not on the same constitutional footing with the interference of one branch of the Federal Government in the affairs of a coequal branch.

While the search of Representative Jefferson's office triggered a confrontation between the Legislative and Executive Branches, searches by federal agents of state legislators do not raise any Constitutional issues related to the protection of that part of a state's government.  Such investigations certainly raise sensitive issues regarding the use of federal power that may interfere with the work of those elected to state office. (ph -- thanks to Stephanie Martz for sending this along)

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