Perhaps proving the adage that the cover-up is worse than the crime, the Sixth Circuit yesterday affirmed the conviction for obstruction of justice of an individual who hacked Sarah Palin’s e-mail account when she was running for Vice-President. United States v. Kernell In 2008, a college student hacked Governor Palin’s e-mail account and posted details on how he accomplished the feat on the internet. In response to postings on a message board about the occurrence, he took steps to delete materials from his computer that would have evidenced his actions. Although he was tried for a number of different counts, the only one for which he was convicted was obstruction of justice based on his efforts to delete materials from his computer.
In a very interesting opinion, the Sixth Circuit considered the constitutionality of the obstruction of justice against a First Amendment challenge for vagueness. Although the Court acknowledged some imprecision in the statute, it did not find the lack of clarity to translate into an unconstitutionally vague statute. The Sixth Circuit followed the Eighth Circuit’s recent decision in United States v. Yielding, 657 F.3rd 688 (8th Cir. 2011). The Court found that the statute sufficiently encompassed destroying documents in contemplation of a governmental investigation (At the same time, the Sixth Circuit rejected the nexus requirement imposed by two district court decisions). On balance the Court found that the statute was not vague as it related to the Defendant because of his own admissions that he drafted detailing his destruction of the documents.
It remains to be seen whether the Kernell will yield broader repercussions in other document destruction cases. This is a recurring issue with which courts are confronted, both in the civil and criminal context.