It seems likely that the Supreme Court will have to clarify federal obstruction law, perhaps sooner rather than later.
It seems likely that the Supreme Court will have to clarify federal obstruction law, perhaps sooner rather than later.
A ppellate courts are supposed to clarify disputed legal issues of importance. When it comes to obstruction of Congress, which is the major issue in the government’s January 6 prosecutions and could foreseeably factor into a potential indictment of former president Donald Trump, the D.C. Circuit Court of Appeals may have just left matters more muddled than it found them.
The circuit issued its ruling on Friday, in United States v. Fischer.
Over a year ago, I explained that a significant statutory issue had erupted in the Capitol-riot cases, specifically regarding the obstruction charge, codified at Section 1512(c)(2) of the federal penal code. Despite a slew of rulings by several judges of the federal district court in Washington, D.C., which validated the application of the statute to the rioters, one jurist went against the tide — Judge Carl Nichols, a Trump appointee.
The provision’s seemingly straightforward terms apply to anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.” Yet Judge Nichols reasoned that it did not apply to defendants who forcibly deterred Congress from conducting the constitutionally mandated joint session at which lawmakers and the vice president oversee the counting of state-certified electoral votes and ratify the election of the winning candidate — in this instance, Joe Biden.
It cannot credibly be gainsaid that the rioters obstructed an official proceeding by preventing it from occurring for several hours. Further, they accomplished this illegal objective by such blatantly illegal means — e.g., physically assaulting security personnel — that their actions were clearly corrupt. How, then, could Nichols find the statute inapplicable?
Well, it came down to a single word, otherwise.
The pertinent obstruction provision in subsection (c)(2) was not originally part of Section 1512. It was added by the 2002 Sarbanes–Oxley legislation to address an omission in the statute’s coverage (we’ll come to that). Congress could have written a completely new, stand-alone obstruction statute. Instead, it decided to insert a new subsection to a preexisting statute — specifically, Congress amended Section 1512 by attaching a new subsection, (c)(2), to an already existing subsection, (c)(1).
Under (c)(1), a person is guilty of a crime if he
corruptly alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.
Congress employed the word otherwise in the new subsection (c)(2), in order to connect it to (c)(1). Thus, (c)(2) made it a crime if a person “corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” This use of “otherwise” makes (c)(2) what is known as a catchall or residual provision. That is, Congress wanted (c)(2) to state a range of general, unspecified conduct that is related to, but could be different from, the more specific types of conduct listed in (c)(1). This way, if a corrupt act fell outside (c)(1)’s list, it would still be captured by (and prosecuted under) the catchall, (c)(2).
Judge Nichols intuited that since (c)(1) itemizes different methods of spoliation of physical evidence (altering, destroying, mutilating, etc.), Congress must also have intended the residual (c)(2) to deal with spoliation of evidence, just more generally. This may sound plausible in theory, but in actuality, (c)(1)’s list so pervasively covers the ways in which tangible evidence could be corruptly manipulated, it is hard to imagine what catchall was necessary. Plus, if Congress meant to confine (c)(2) to spoliation of evidence, it easily could have said so; instead, it used clear terms that reached other kinds of corrupt behavior that could undermine an official proceeding. In any event, Nichols concluded that (c)(2) could not apply to the rioters because they were not trying to undermine the integrity of an official proceeding by fiddling with evidentiary documents; they were trying to prevent the proceeding from happening at all.
Because Nichols is the only district judge who construed the obstruction statute this way, it created a controversy that the D.C. Circuit Court of Appeals would inevitably have to resolve — or, at least, try to.
The result of Friday’s Fischer decision is confusion: The three-judge panel produced three opinions that diverge widely. In a bottom-line sense, the court’s decision is a 2–1 ruling that upholds the government’s obstruction charges; but to describe it that way understates the depth of judicial disagreement. In truth, the three circuit judges — Trump appointees Gregory Katsas and Justin Walker, and Biden appointee Florence Pan — don’t even agree among themselves which of theirs is the opinion of the court.
It is safe to say that Judge Katsas is the dissenter. Judge Pan has written what seems to be (and what she regards) as the opinion of the court (i.e., the majority opinion). But, though she and Judge Walker agree that (c)(2) applies to the rioters, they disagree about why. And though Walker acknowledges that Pan has written the “lead” opinion, he intimates that his concurrence may be the controlling opinion since Pan would apparently uphold broad applications of (c)(2) that both he and Katsas would reject — i.e., her opinion is binding only to the limited extent that she agrees with him . . . on an issue (the correct interpretation of the word corruptly) that was not the central to the appeal as argued (the argument centered on what to make of the word otherwise).
Egad!
For what it’s worth, I am in the (for me unusual) position of agreeing with the Democratic appointee (Judge Pan), rather than the Republican-appointed judges. Walker and Katsas are superb judges, so we should not be surprised that they highlight worthy concerns that an expansively worded obstruction law could be used too aggressively by prosecutors, criminalizing or chilling constitutionally permissible methods of trying to influence Congress. Those concerns, however, seem otherworldly here, where the defendants are accused of a forcible, patently illegal attack on the Capitol for the clear purpose of intimidating lawmakers into denying Biden’s victory.
No one doubts that, potentially, Section 1512(c)(2) could be applied abusively. Many actions that people take to influence (or even to impede and obstruct) congressional proceedings are perfectly lawful. Americans, after all, have a constitutional right to petition lawmakers and to dissent vigorously. And while lobbyist has become a pejorative term, there is nothing dishonorable in principle about working as an advocate to try to shape or block legislative action — particularly when government has become so vast, intrusive, and at times punitive. Even if a lobbyist believes in his heart of hearts that a position he is pushing is bad for the country, his advocacy on behalf of a client to influence lawmakers is no more corrupt than a defense lawyer’s advocacy in court on behalf of a client he believes is guilty.
With those very real concerns in the front of our minds, I’ll flesh out the appellate panel’s divisions by focusing on three principles: limiting the reach of a potentially overbroad criminal statute by narrowing the acts it covers (the actus reus element); limiting such a statute’s reach by heightening the intent proof requirement (the mens rea element); and focusing litigation on the facts before the court (as opposed to some hypothetical worst-case scenario).
Judge Katsas in dissent urges that it is necessary to limit the acts that the statute reaches. He does not come out in exactly the same place as Judge Nichols; as Judge Pan observes, Katsas would construe (c)(2) to proscribe obstructive conduct that impairs the evidence-weighing function of an official proceeding, which is somewhat broader (and less textually rooted) than Nichols’s focus on the manipulation of physical evidence.
Pan concludes that the terms of (c)(2), considered in isolation (“corruptly . . . otherwise obstructs, influences, or impedes”), are straightforward and unambiguous. Katsas does not so much dispute this as deflect it, arguing that ambiguity can arise from the context in which words are used, even if the words themselves seem clear enough. He sees (c)(2) as “nested” with (c)(1), and infers that by using the word otherwise to connect them, Congress meant (c)(2)’s crime of obstruction to be informed by (c)(1)’s crime of debasing the fact-finding process. Katsas is also unmoved by his colleagues’ conclusion that, by invoking “otherwise,” Congress meant to cover obstructive conduct carried out “in a different manner” from the evidence-spoliation methods in (c)(1); the word “otherwise,” he counters, can also refer to things that are similar though not quite the same.
For Katsas, the context that must be considered transcends a couple of subsections ((c)(1) and (c)(2)) in a single obstruction statute (Section 1512). Instead, the entire chapter of obstruction offenses in federal penal law is implicated. On that score, he points out that if (c)(2) is given its broad, ostensibly unambiguous meaning, it would duplicate a number of obstruction statutes; and given its sweeping penalty of up to 20 years’ imprisonment, (c)(2) could effectively nullify some of these statutes, undoing Congress’s effort to calibrate offenses with graduated sentencing terms, in which obstructive conduct is punished more or less severely depending on how serious it is.
Good points all, but it is also a formula for creating ambiguity as much as clarifying it — i.e., taking words or phrases that are clear on their own terms and widening the context in which they are interpreted until some tension appears. There is also an artificiality to this exercise. Congress did not write (c)(2) at the same time that it wrote the multiple provisions to which Judge Katsas points; the implication that lawmakers were much concerned about how (c)(2) jibed with other subsections of Section 1512, and with obstruction law in general, is dubious. Indeed, in enacting (c)(2), Congress did not even amend the title of Section 1512, which remained “Tampering with a witness, victim, or an informant” — actions that the section had long covered and that (c)(2) does not directly address.
Instead, (c)(2) was added because the 2002 Enron scandal, in snaring the Arthur Andersen accounting firm (which collapsed before the Supreme Court unanimously reversed its conviction in 2005), exposed a gulf in obstruction law. Basically, pre-(c)(2) law made it a crime to cause others to destroy documents, but not to destroy them oneself. Congress could have closed this gap with a small patch. But that’s not how Congress rolls, especially when crafting such monstrous overhauls as Sarbanes–Oxley. Instead of a patch, (c)(2) is a blanket, covering not just evidence spoliation but all conceivable corrupt obstruction of official proceedings — to ensure that there could be no other interstices. This is not a great way to legislate; it would be better if Congress carefully repealed prior laws that new, blunderbuss legislation renders redundant or superfluous. Alas, there are reasons why lawmaking is often compared to sausage-making. Congress is free to enact law haphazardly, and redundancy is not a basis to invalidate statutes. Can this result in problematic prosecutions? Sure . . . but if a defendant is redundantly charged (for the same criminal conduct under two or more substantially similar statutes), the law provides remedies — as our Dan McLaughlin explained last week in discussing how the so-called Blockburger rule works in double-jeopardy and related contexts.
Let’s turn to mens rea. Judge Walker supplied the critical second vote to uphold the Justice Department’s application of (c)(2) to the Capitol riot. But while he agreed that the conduct came within (c)(2)’s sweeping terms, he insisted on narrowing the statute’s requirement that prosecutors prove that the defendant acted corruptly. Drawing on centuries of common law, Walker maintains that corrupt intent requires more than a defendant’s awareness that the ends he seeks and/or the means he uses are illegal. In addition, the government must show that the accused intended “to procure an unlawful benefit” for either himself or another person.
This more burdensome interpretation of corruptly would not prevent prosecutors from applying (c)(2) to the rioters — and, presumably, to Trump himself if he were charged. The rioters’ alleged objective was to retain Trump in office; if that is proved, then they would have been trying to procure a benefit for him, and would thus have acted corruptly, consistent with Walker’s construction. (By contrast, that construction would work in favor of a rioter who, say, engaged in violence in order to convey his abhorrence of the political class but not intending to obtain a benefit for himself or anyone else.)
Judge Pan objects to Judge Walker’s mens rea enhancement on multiple grounds. She maintains that it is not the issue on which the district court’s dismissal of the obstruction charge came before the appellate court; Walker counters that this is wrong and irrelevant — wrong because he claims that the intent issue was argued to some extent by the parties; and irrelevant because his vote to uphold the indictment hinges on a more demanding standard of proving corrupt intent (i.e., without it, he would rule in favor of the defendants). Pan more convincingly posits that Walker’s interpretation of corruptly goes further than what the Supreme Court required in Arthur Andersen. There, the justices unanimously opined that the word’s meaning is “clear” (i.e., it is not ambiguous) and it is “normally associated with wrongful, immoral, depraved, or evil” conduct.
To be clear, Pan is not saying that Walker is necessarily wrong. She observes, to the contrary, that in a concurrence in United States v. Aguilar (1995), Justice Scalia quoted with approval the following jury instruction:
An act is done corruptly if it’s done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” [Emphasis added.]
Nevertheless, Pan cautions that the “procurement of a benefit” add-on that Walker seeks is not necessary to decide the disputed issue in the January 6 rioters’ case. That’s important, she emphasizes, because “there are around fifty other references to ‘corruptly’” in the federal penal code besides its invocation in Section 1512(c)(2). Adding a heightened burden of proof would be a significant change. Therefore, it should not be considered until it is squarely raised in an appropriate case, in which both the Justice Department and the defense are given a full, normal opportunity to address it.
That brings us to the last point, which should be the most obvious one. Disputed issues in litigation should be decided based on the facts of the case that is before the court, not conjured-up fact patterns on the margins of a statute’s reach.
The January 6 prosecutions do not involve a hypothetical lobbyist who may have gone too far in courting a lawmaker. For now, they don’t even involve a president who was overly aggressive in pushing a deeply flawed, factually unsupported legal theory that Congress and the vice president had the power to discount state-certified electoral votes. Rather, these cases involve rioters who physically overwhelmed police officers and damaged public property in a patently illegal effort to prevent Congress from convening and to influence the outcome of its proceeding.
There may be cases in the future that raise troubling questions about whether an obstruction charge unconstitutionally impinges on conduct that is lawful even if we find it noxious. It is possible that an indictment of former President Trump could trigger such concerns, though we obviously won’t know that unless and until such a charge is brought. For now though, the prosecutions of rioters involve conduct that is in the heartland of Section 1512(c)(2)’s straightforward criminalization of corrupt behavior that obstructed a congressional proceeding. Even if there are hard cases out there somewhere, the case before the D.C. Circuit is not one of them.
The defendants could now ask the entire D.C. Circuit (all eleven active judges) to weigh in, and the Justice Department may see the wisdom in that even though the panel ruled in its favor. It seems likely, however, that the Supreme Court will have to clarify federal obstruction law, perhaps sooner rather than later.