Did Kamala Harris obstruct justice, if Tulsi Gabbard&#39;s claim is to be taken at face value? Background In the second night of the second 2020 Democratic Primary debate, Rep. Tulsi Gabbard claimed the following: She blocked evidence -- she blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. Question If taken at face value (not saying it is actually true) for the sake of argument, does this fall under obstruction of justice?
Gabbard accusing Harris of obstruction doesn't make Harris guilty of obstruction. There is no legal progression between a statement by one party about the existence or veracity of a fact that could prove a crime by another party, and that other party and the veracity of the facts or the crime itself and forgone guilt, other than the statement by the first party itself could possibly be defamatory by publishing (making public statements) false facts. By saying "If taken at face value (not saying it is actually true)", I think you're confusing obstruction with defamation. If Harris did factually "block evidence", and it rises to the threshold of obstruction as determined by a prosecutor, then Gabbard isn't stating false facts and is not defaming Harris. If Harris did not factually "block evidence", as determined by documents and evidence, then Gabbard could be stating false facts, but both are public figures, so the threshold of defamation is higher in that it requires actual malice by Gabbard knowing her statement is false or by reckless disregard for the truth. To go a step further, to prosecute Harris, a prosecutor has to determine if Harris obstructed according to evidence, and charge her. Harris could have obstructed and not be charged for either political reasons or reasons regarding evidence, but that's a different question.
There are instances when the testimony may still be admitted. For example, a deposition may be admitted at trial either for impeaching or when a witness cannot attend, which involves the circumstance of death (FRCP 32(a)(4)(a)). Additionally, regarding hearsay, there are numerous exceptions. My Evidence professor said in class "If you cannot find a way to get evidence around a hearsay objection, you are not trying hard enough." One such hearsay exception states in the committee notes: Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process.
In the case you link, this was given as an opening statement by the defense. Opening statements do not contain evidence. The defendant may or may not testify on their own behalf during the trial - this testimony, if given, counts as evidence, even if it is somewhat self-serving. And anything which tends to casts doubt as to the defendant's guilt is evidence that they didn't do it, even if it isn't proof. If there is reasonable doubt, then &quot;he didn't do it&quot; is not illogical. And it would seem unfair to allow the prosecution to say &quot;he did it&quot; but not allow the defense to say &quot;no he didn't&quot;.
The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.
If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed.
The Brandenburg Test This is not a &quot;general test&quot; - it's the test that applies. The prosecution must prove beyond reasonable doubt that: The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.” The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded. The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony): Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction. The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action.&quot; Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term &quot;inciting,&quot; suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to &quot;producing&quot; the imminent criminal conduct. Arguably, unless the &quot;producing&quot; language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized.
The plea is entered before the trial. The concession of guilt happens during trial: the lawyer acknowledges that the defendant did the crime, but argues that it should be overlooked in some way. For example, Nixon dealt with a death-penalty case where the lawyer's strategy was to admit during the trial that the defendant had killed the victim, but to use the trial to persuade them that the circumstances did not call for the death penalty. You don't get to make those arguments if you enter a guilty plea, which would then strip you of your right to a jury.
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.