On May 20, 2013, Judge Kurt Engelhardt of the Eastern District of Louisiana dismissed the obstruction charge in the indictment against David Rainey, a former vice president at BP involved in the Deepwater Horizon spill. The 44-page decision dismissed the first count of a two count indictment charging obstruction of a congressional investigation under 18 U.S.C. § 1505. It’s always nice to report on a win, so here goes.
Rainey was indicted in November 2012. In support of the obstruction count, the indictment alleges that Rainey failed to disclose information about the oil spill’s rate-flow estimation during a May 4, 2010 briefing of Congress members and staff. It also alleged that he drafted a misleading response on behalf of BP to a May 14, 2010 letter from the Chair of the Subcommittee on Energy and Commerce, Rep. Edward Markey.
[If you are curious, the second count in the indictment charges Rainey with making false statements to law enforcement in violation of 18 U.S.C. § 1001(a)(2). Rainey allegedly falsely stated to law enforcement agents during an interview that he had calculated the flow-rate estimate (of 5,000 barrels of oil per day) before he saw the same 5,000 BOPD estimate calculated by the National Oceanic and Atmospheric Administration. Why, exactly, this seemingly minor false statement matters seems to me to be an open question but it’s clear that DOJ went looking for criminal charges and found one.]
Anyway, moving on. Rainey’s lawyers, including Steptoe’s Reid Weingarten, filed a motion to dismiss the obstruction count for several reasons. They argued—among other things—that (1) the indictment does not allege the “due and proper exercise of the power of inquiry” by a committee as required by the statute; (2) section 1505 does not reach requests for information by individual congress-members; (3) the indictment failed to allege that Mr. Rainey had any knowledge of a pending criminal investigation; (4) section 1505 applies only to an investigation by a “committee” of Congress, not a subcommittee.
First things first. What does the statute say? The relevant portion of 18 U.S.C. § 1505 reads:
Whoever 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 and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
The court first evaluated whether the indictment alleged a legal basis for the “power of inquiry.” Mr. Rainey argued that the indictment failed to allege the specific details of the committee’s authority. The court agreed that although the indictment mirrored the statutory language that the subcommittee’s investigation was a “due and proper exercise of the power of inquiry,” the indictment was “devoid of any specific factual detail regarding the authority for this exercise of power.” Under a Supreme Court case, United States v. Gojack, 384 U.S. 702 (1966), that interpreted the statute governing contempt of Congress, there must be a proper delegation of power to the subcommittee “to conduct an inquiry into a designated subject.” A “clear chain of authority from the House to the questioning body is an essential element of the offense,” according to Gojack. The court was willing to adopt the reasoning of this case even though it dealt with a separate statute, but ultimately concluded that there did not need to be any more detail in the indictment about the legal basis for the subcommittee’s authority. This portion of the motion was denied.
The court next analyzed whether Rep. Markey’s May 14 letter to BP was an “inquiry or investigation” under section 1505. The court took the easy way out here, concluding that he would need an evidentiary hearing to decide this issue and also that his decision dismissing the count on other grounds meant that he did not have to reach the issue. It’s too bad the court did not decide it, though. Given the proclivity of congressmembers to send letters to individuals and companies asking for information, it would be helpful to have some guidance for those in the position of responding to the letters as to their exposure to criminal sanctions.
Mr. Rainey finally got some traction on the third issue: whether he was aware of a pending congressional proceeding as required by the statute. Nowhere does the indictment say that he was aware of an investigation. The government tried to get around their problem by arguing that Mr. Rainey’s knowledge could be inferred from several of the factual allegations. For example, the government argued that the indictment’s allegation that Mr. Rainey made certain responses to the subcommittee should be read as including the allegation that Mr. Rainey was on notice that the subcommittee was investigating the oil spill. The court, however, disagreed and refused to infer that the “grand jury considered and found the requisite knowledge on the part of Rainey” from those allegations. Based on this pleading deficiency, the court dismissed the first count of the indictment.
The court went on to dismiss Count One for another reason: section 1505 does not encompass subcommittee investigations, only committee investigations. I won’t go into the details of the case law and legislative history at play except to note that Judge Engelhardt managed to use the word “teleological,” so he has earned my respect. In the end, the court relied on “black-letter principles of interpreting criminal statutes” that such statutes must be strictly construed and the rule of lenity requires courts to resolve any ambiguities in favor of the defendant.
The court narrowed the issue to this: should the word “committee” be read in a “generic sense” which would encompass subcommittees (the government’s position) or in “its more technical sense as the term is used in the United States Congress” (the defendant’s position). The court concluded that it could not “say with certainty” that the word “committee” included subcommittees and therefore declined to read it so broadly. So, it dismissed the first count on this ground.
Interesting side-note: the court also granted Mr. Rainey’s motion to strike surplusage to delete the sentence: “The gas from the blowout ignited and quickly caused explosions that killed 11 men onboard.” It also granted the motion to change the sentence: “Over the next three months, millions of barrels of oil gushed discharged into the Gulf of Mexico from the well.” Convincing a judge to change pejorative allegations, no matter how irrelevant, in an indictment is about as common as winning a motion for a bill of particulars, so congrats to Mr. Rainey’s defense team on this victory as well.
The Department of Justice has not announced its response to the court’s ruling. It could, of course, seek to re-indict Mr. Rainey for the same conduct by convincing a new grand jury that he knew of a congressional investigation, though it will still have to contend with the fact that the investigation was run by a subcommittee. Or the Department could go forward on the false statements charge alone. Time will tell, but Mr. Rainey should rightly enjoy his victory; it’s a rarity for criminal defendants.
Shockingly, Rep. Markey said that the court’s ruling was a “narrow and off-the-wall interpretation of how Congress investigates wrongdoing.” Yep, totally off the wall to apply the plain language of a statute. Just crazy.