Courts & Litigation Criminal Justice & the Rule of Law

Government Wins Another Fragile Victory for Key Felony Charge in Jan. 6 Cases

Roger Parloff
Wednesday, October 25, 2023, 11:09 AM
Appeals judges’ acceptance of the government’s positions has been 100-percent correlated with the political party of the judge’s appointer.
Tear Gas outside United States Capitol on Jan. 6. (Tyler Merbler,; CC BY 2.0 DEED,

Published by The Lawfare Institute
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Rarely have victories been so suffused with a sense of doom.

Last week, in United States v. Thomas Robertson, the Justice Department won a second fragile appellate court endorsement for its use of a key felony charge to prosecute rioters who attacked the Capitol on Jan. 6: “corrupt obstruction of an official proceeding” under 18 U.S.C. §1512(c)(2).

That ruling, from the U.S. Court of Appeals for the D.C. Circuit, followed on the heels of an even more precarious victory that the department won from a different panel of the same court in April in United States v. Fischer.

Each ruling is of surpassing importance because the department has charged at least 317 individuals with violating that law for the roles they allegedly played in the siege on the U.S. Capitol. In addition, Special Counsel Jack Smith has relied on that statute and its conspiracy equivalent, 18 U.S.C. § 1512(k), for two of the four counts in his indictment against former President Donald Trump for allegedly conspiring to overthrow the 2020 election. Those counts, whose legal sufficiency Trump challenged in a motion to dismiss this week, are the most serious leveled against Trump in that case, carrying a maximum 20-year term of imprisonment.

In Robertson, the court ruled, 2-1, that the department’s understanding of the definition of “corruptly,” as used in 18 U.S.C. § 1512(c)(2), was correct, and that the evidence offered against rioter Robertson—typical of that offered against scores of Jan. 6 defendants—was sufficient to prove that element of the crime.

In Fischer, a different panel rejected a different challenge to the department’s use of that law. In that case, three Jan. 6 defendants argued that 18 U.S.C. § 1512(c)(2) prohibits obstructing an official proceeding only by, in essence, evidence tampering—not by physical violence.  While the government won that case, too, the three judges on the panel all wrote separate opinions. And though two judges voted to uphold the department’s use of the statute in those cases, they did so on different grounds, and they even disagreed—as I’ll explain further below—about whose reasoning should represent the holding of the court. The three appellants in that case are now seeking U.S. Supreme Court review.

Beyond the disconcerting lack of unanimity in either of these two rulings—each of which might yet undergo further review—it’s notable that the Justice Department’s positions in the two cases were wholeheartedly endorsed only by the two Democratic appointees who sat on either panel. All three Republican appointees expressed either qualms with, or utter rejection of, the department’s positions. (Biden appointee Judge Florence Pan sat on both panels, writing the majority opinion in Robertson and the lead opinion in Fischer.)

As noted, the two rulings address different aspects to the law. The challenge in Fischer focused on the actus reus—that is, the actions that are prohibited by the statute. The challenge in Robertson focused on the mens rea, or the state of mind, necessary to commit the offense. Yet, as we’ll see, the two rulings are not completely separable from one another.

I will begin with the new ruling, Robertson, about mens rea. The following factual recitation relies on undisputed facts as laid out in the opinion. On Jan. 6, 2021, Army veteran Thomas Robertson was an active-duty police sergeant in Rocky Mount, Virginia. In social media posts leading up to that date, Robertson said he believed the presidential election had been “rigged” and he vowed not be “disenfranchised.” He wrote:

I’ll follow the path our founders gave us. Redress of grievances (already done) civil disobedience (here now) and then open armed rebellion. I’ve spent the last 10 years fighting an insurgency in Iraq and then Afghanistan. [I’m] prepared to start one here.

Robertson and a younger Rocky Mount police officer, Jacob Fracker, were off duty when they came to Washington to attend the Trump rally on Jan. 6. (Fracker pleaded guilty and testified against Robertson at trial.) The two men brought with them meals-ready-to-eat, water, gas masks, and—in Robertson’s case—“a large wooden stick.” After the rally, they marched to the Capitol. When Robertson and Fracker saw that “flash bangs” and “smoke grenades” were being used, they donned their gas masks. Then several Metropolitan Police Department officers tried to pass through the crowd near them to assist in defending the building. Robertson blocked their path, holding his large stick horizontally in a “tactical grip.” He then struck one officer with the stick and “took a swipe” at another.

At the Capitol, Robertson and Fracker followed a group of rioters who had broken through a scaffolding. They ascended a staircase, crossed barricades, and entered the Capitol at 2:16 p.m., just three minutes after the first rioters penetrated the building. They saw broken glass and overturned furniture around them and heard a blaring alarm, according to Fracker’s testimony. They made it to the Capitol Crypt, where they participated in chants and took selfies. Because of the presence of the rioters, U.S. senators fled their chamber at 2:12 p.m., while members of the House of Representatives were evacuated around 2:30 p.m. The Senate did not reconvene until 8:06 p.m., and the House did not do so until 9:02 p.m.

After the riot, Robertson boasted about what he had done on social media, describing his actions as “storm[ing]” the Capitol and being “part of the next American revolution.” He wrote: “CNN and the Left are just mad because we actually attacked the government who is the problem. ... The Right IN ONE DAY ... took the fucking U.S. Capitol. Keep poking us.”

When Robertson learned that a warrant had been issued for his and Fracker’s arrest, he collected their phones and hid them. Neither phone was ever recovered. Robertson texted a friend that his phone “had taken a lake swim” and “had a tragic boating accident.”

Robertson was charged with corrupt obstruction of an official proceeding, under 18 U.S.C. § 1512(c)(2), along with five other offenses. (As we will see, the fact that he was charged with other offenses is relevant to determining whether he acted “corruptly” under certain definitions of that term.) Four of the other offenses were felonies, including impeding officers during a civil disorder (18 U.S.C. § 231(a)(3)); knowingly entering a restricted area while carrying a dangerous weapon, that is, the long stick (18 U.S.C. §§ 1752(a)(1) and (b)(1)(A)); knowingly impeding the orderly conduct of government business with a dangerous weapon (18 U.S.C. §§ 1752(a)(2) and (b)(1)(A)); and destroying and concealing evidence, that is, the cellphones (18 U.S.C. § 1512(c)(1)). (The majority decision incorrectly states that only three of Robertson’s five other offenses were felonies, mistakenly treating 18 U.S.C. § 231(a)(3) as a misdemeanor. In fact, that charge is a felony carrying a maximum five-year term of imprisonment.)

The top charge—the one at issue in Robertson—was 18 U.S.C. § 1512(c)(2). The relevant statutory text for § 1512(c) is as follows:

Whoever corruptly—


(2) ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

In his jury instructions, U.S. District Judge Christopher R. Cooper defined “corruptly” as follows:

To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The defendant must also act with consciousness of wrongdoing. Consciousness of wrongdoing means with an understanding or awareness that what the person is doing is wrong. Not all attempts to obstruct or impede an official proceeding involve acting corruptly. For example, a witness in a court proceeding may refuse to testify by invoking his constitutional privilege against self-incrimination, thereby obstructing or impeding the proceeding. But he does not act corruptly. In contrast, an individual who obstructs or impedes a court proceeding by bribing a witness to refuse to testify in that proceeding or by engaging in other independently unlawful conduct does act corruptly.

The jury convicted Robertson of all counts. At that point, his attorney moved for acquittal notwithstanding the verdict, raising an argument the first time. He maintained that the government had not proved that Robertson had acted corruptly because it hadn’t shown that he acted “with the intent to obtain an unlawful advantage for himself or an associate.”

Cooper denied the motion and sentenced Robertson to 87 months in prison.

On appeal, Robertson again argued that the proof was insufficient to show that he acted “corruptly” because the government had not shown that he had an “intent to obtain an unlawful advantage for himself or an associate.” In shorthand form, this definition is sometimes referred to as the “expectation-of-benefit” or “improper-benefit” test.

Judge Pan, joined by Judge Nina Pillard (an Obama appointee), found that the “corruptly” element was adequately proved.

We conclude that “corruptly” must be construed according to its plain meaning ... and that there are a range of ways to prove a defendant’s “corrupt” intent or action. ... We hold that the jury could have found, consistent with the district court’s instructions, that Robertson acted “corruptly” based on evidence that he used felonious “unlawful means” to obstruct, impede, or influence the Electoral College vote certification.

In fact, the majority found, this case did not present “a close question,” because Robertson had used force to obstruct the official proceeding in question—the joint session of Congress convened to count electoral votes. “Using force to obstruct, influence, or impede a congressional proceeding is plainly wrongful and therefore corrupt,” Pan wrote.

Pan relied mainly on two precedents. Each had analyzed the meaning of “corruptly” when used in connection with other obstruction statutes. The first was the U.S. Supreme Court’s ruling in Arthur Andersen LLP v. United States in 2005, analyzing 18 U.S.C. §§ 1512(b)(2)(A) and (B). The second was the D.C. Circuit’s own ruling in United States v. North in 1990, analyzing 18 U.S.C. § 1505. Pan wrote:

The Supreme Court noted in Arthur Andersen that the “natural meaning” of “corruptly” is “clear”: The word is “normally associated with wrongful, immoral, depraved, or evil.” ... Similarly, we stated in North that “‘corruptly’ is the adverbial form of the adjective ‘corrupt,’ which means ‘depraved, evil: perverted into a state of moral weakness or wickedness.’” North, 910 F.2d at 881 (quoting Corrupt, Webster’s Third New International Dictionary 512 (1976)). Those cases provide guidance on how to apply the ordinary meaning of “corruptly” in statutory interpretation. Arthur Andersen, 544 U.S. at 705 (the “natural meaning” of “corruptly” “provides a clear answer” for how it should be applied in the statute); North, 910 F.2d at 882, 884 (“corruptly” is to be understood according to its “common meaning[]”).

The precise meaning of “corruptly” changes in different contexts, Pan continued, because its key purpose is to distinguish innocent behavior from criminal conduct:

[In North] [w]e recognized ... that proof of “corrupt” intent or action may vary depending on circumstances. ...

In contexts where obstructive actions are not inherently corrupt, the requirement to act “corruptly” separates innocent from illegal behavior. ... The “corruptly” element protects non-culpable conduct ... from being swept up by the statute’s broad prohibition on “obstructing, influencing or impeding an official proceeding.” Those cases confirm, moreover, that the requirement that a defendant act “corruptly” is met by establishing that the defendant acted with a corrupt purpose or via independently corrupt means.

Pan drew particular attention to the words of the late Judge Laurence Silberman (a respected conservative jurist) in his separate opinion in North: “[T]o say that someone corruptly endeavors to obstruct an inquiry might mean (1) that he does so with a corrupt purpose, or (2) that he does so by independently corrupt means, or (3) both.”

On this basis, Pan found that Judge Cooper “correctly instructed the jury ... that one way to prove that the defendant acted ‘corruptly’ is to demonstrate that he “obstruct[ed] or impede[d] ... by engaging in other independently unlawful conduct.” Specifically, she found that the following facts, among others, showed corrupt state of mind:

Before January 6, Robertson declared his intention to join a “counterinsurgency” and to participate in an “open armed rebellion.” ... To accomplish that end, Robertson broke the law in multiple ways. He used a stick to hit a police officer and to swipe at another. Wielding that stick as a show of force and intimidation, he joined the “out of hand” crowd surging into the Capitol building despite the blaring of alarms and warnings by police officers that the area was restricted. ... That evidence amply supported the jury’s finding that Robertson committed two felony offenses to obstruct the vote certification: i.e., remaining in a restricted building or grounds without lawful authority, and disorderly conduct at the Capitol, both with a deadly or dangerous weapon. ... In other words, a jury could easily find that Robertson acted “corruptly” by using independently unlawful, felonious means with the intent to obstruct, influence, or impede the electoral vote certification.

As noted earlier, the evidence actually shows that Robertson committed a third felony as well in the process of obstructing the vote certification: He impeded officers during a civil disorder under 18 U.S.C. § 231(a)(3), a felony for which Robertson was also convicted.

Judge Karen Henderson, who was appointed by George H.W. Bush, dissented. She agreed with Robertson that there was one and only one way to define the term “corruptly” for purposes of 18 U.S.C. § 1512(c)(2): acting “with the intent to obtain an unlawful advantage for himself or an associate.” Remarkably, Henderson concluded that this issue had already been decided by the D.C. Circuit’s ruling in Fischer last April and that she was bound by that alleged holding.

So now, let’s turn back to Fischer to see what Henderson was talking about. Because Lawfare has written extensively before about the issues in Fischer—here, here, and here, for instance—I will recap that ruling only to the extent necessary to understand Robertson.

Fischer was a case about the actus reus of 18 U.S.C. § 1512 (c)(2). It was an appeal from a ruling by U.S. District Judge Carl Nichols, who had dismissed that count from indictments against three different Jan. 6 rioters: Joseph Fischer, Garrett Miller, and Edward Lang. Like Robertson, each of those defendants had been charged with obstructing the joint session of Congress by committing multiple other independent felonies, including assaulting or impeding officers, or destroying property. Nichols had never reached the issue of what “corruptly” meant in their cases, because he found that the conduct prohibited by 1512(c)(2) was so narrow that the law could not possibly be applied to any of those defendants. 

To understand Fischer we need to look at the full text of 1512(c):

Whoever corruptly—

(1) 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; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

The Justice Department has always argued that subsection (c)(2) is very broad, reaching anyone who “corruptly ... obstructs, influences or impedes any official proceeding,” including by engaging in violence. At least 15 federal district judges in Washington, D.C., have agreed with that interpretation in various Jan. 6 cases.

But Nichols, focusing on the word “otherwise” in subsection (c)(2), construed that paragraph to be extremely narrow—prohibiting only those types of behavior similar to what is described in subsection (c)(1). Accordingly, he concluded that the law criminalizes only the conduct of those who obstruct a proceeding by taking “some action with respect to a document, record, or other object”—like, for instance, “cover[ing] up, falsif[ying], or mak[ing] a false entry in a record.” After Nichols dismissed the corrupt obstruction charges from the indictments of those three defendants, the government appealed.

Pan wrote the lead opinion in Fischer, which was denominated the “opinion for the court.” She read subsection (c)(2) in exactly the same broad way as the Justice Department did, upholding its use against all three defendants. 

Judge Gregory Katsas, who was appointed by Trump, dissented. While his interpretation of the law was not quite as narrow as Nichols’s, it was very nearly so. He interpreted the word “otherwise” in subsection (c)(2) to mean that that paragraph only reached obstructive acts that involved evidence destruction, alteration, or “spoliation” similar to the acts listed in subsection (c)(1). Under Katsas’s interpretation, the law would not apply to the types of conduct typically alleged in cases against Jan. 6 rioters. Similarly, Katsas’s interpretation would also seem to preclude using the law to prohibit the acts alleged in the government’s indictment against Trump in Washington, D.C.

The third judge on the Fischer panel was Justin Walker, another Trump appointee. His opinion was described in the official ruling as “concurring in part and concurring in the judgment.” Yet Walker himself suggested that his opinion should be controlling on lower courts and, indeed, on subsequent D.C. Circuit panels. In last week’s ruling in Robertson, Judge Henderson agreed with him.

Walker wrote that the government’s interpretation of the actus reus of subsection (c)(2) was alarmingly broad and potentially unconstitutionally vague. Nevertheless, he concluded that the mens rea element of the offense, “corruptly,” could serve to rein in the statute’s scope and bring it back into the realm of constitutionality. He believed this to be the case, however, only if the court decided an issue that had not originally been before it, since Judge Nichols had never reached it. That was the issue already then pending before the Robertson panel: the precise meaning of “corruptly.” 

However, Fischer’s attorneys raised the lack of clarity over the meaning of “corruptly” in his response brief on appeal. The government then responded to those claims in its reply. Based on that less-than-full briefing, Walker did reach that question. In Walker’s view, “corruptly” had to mean “with an intent to procure an unlawful benefit either for himself or for some other person.” Walker described this as the “long-standing meaning” of “corruptly,” relying in part on a dissenting opinion Justice Clarence Thomas had written in a tax case called Marinello v. United States in 2018. Walker then argued that this had also been the meaning of “corruptly” at common law, providing some historical analysis. Strikingly, Walker rejected the notion that “corruptly” should be read in accordance with its “plain meaning,” citing, instead, a sentence from a 1995 concurrence written by Justice Antonin Scalia opining that “statutory language need not be colloquial.”

Having reached his decision about the meaning of “corruptly,” Walker then joined Judge Pan in voting to uphold the Justice Department’s use of 18 U.S.C. § 1512(c)(2) to charge obstructions of an official proceeding that do not allege evidence tampering but, rather, physical violence. Gaining Walker’s vote, the Justice Department won the Fischer case. Barring further review, the 18 U.S.C. § 1512(c)(2) counts that Judge Nichols had dismissed will be restored to the Fischer, Miller, and Lang indictments.

But then Walker did something very unusual. He purported to condition his vote to overturn Nichols’s dismissals on acceptance of his own, singular interpretation of “corruptly.” Further, he suggested that his concurrence might now be binding on lower courts and, indeed, the D.C. Circuit.

[M]y reading of “corruptly” is necessary to my vote to join the lead opinion’s proposed holding on “obstructs, influences, or impedes” an “official proceeding.” .... If I did not read “corruptly” narrowly, I would join the dissenting opinion. ... My reading of “corruptly” may also be controlling, at least if a future panel analyzes this splintered decision under Marks v. United States — the test for deciding the holding of a fractured Supreme Court judgment.

In Marks, the Supreme Court held that, with respect to its own split decisions, if no single rationale enjoys majority support, the Court’s holding is the position taken by the judge “who concurred in the judgments on the narrowest grounds.” Under that formula, Walker claimed, his opinion should be the Fischer court’s holding.

Judge Pan, in her “opinion for the court” in Fischer, begged to differ. The majority of the Fischer panel—both Pan and Katsas—declined to endorse Walker’s proffered definition of “corruptly.” Pan’s view was that it was unnecessary to decide precisely which definitions of “corruptly” were and weren’t permissible because the grave allegations in each of the three indictments at issue were “sufficient under any understanding of ‘corrupt’ intent.” Accordingly, Walker’s concurrence was not a narrower, “logical subset” of Pan’s own ruling, she wrote. Rather, she wrote, it “goes further and affirmatively adopts a new test for ‘corrupt’ intent that has not been requested by any party,” while her own opinion “expresses no preference for any definition of ‘corruptly.’”

Now let’s return to Robertson. In responding to Henderson’s dissent, Pan explained first—yet again—why Walker’s opinion was not binding on the Robertson panel or, for that matter, on anyone else. She laid out the same reasons she’d listed in her opinion in Fischer: Walker’s opinion had been rejected by two of the three judges and had not been a narrower, “logical subset” of her own opinion.

In addition, she sharply rejected the merits of Walker’s—and now Henderson’s—views about the definition of “corruptly.” Specifically, she ridiculed the notion that the “expectation-of-benefit” gloss Walker had insisted upon was in any sense “longstanding.”

No majority of the Supreme Court has adopted the “expectation-of-benefit” requirement when defining “corruptly” in an obstruction case. In actuality, the expectation-of-benefit requirement is not “longstanding” at all in the context of obstruction statutes: Instead, its use has been almost exclusively confined to bribery and tax law. ... Thus, the purportedly “longstanding” definition of “corruptly” would come as a surprise to every sister circuit to previously consider the meaning of that term in § 1512(c)(2). [Pan then lists nine federal appeals court rulings from five circuits that have not used Walker’s definition.] We see no basis to create a split with those circuits, particularly on sufficiency review when the culpability of Robertson’s conduct is obvious.

Though I am almost done, there is one last anomaly contained in Henderson’s dissent in the Robertson ruling—and it’s an important one. Although she found that she was “bound” by Walker’s definition of “corruptly” in Fischer, she appeared to depart from it in one conspicuous respect: the repercussions of her definition of “corruptly” for the at least 317 Jan. 6 defendants who have been charged with violating 18 U.S.C. § 1512(c)(2). 

Walker—in voting to restore the dismissed 18 U.S.C. § 1512(c)(2) charges to the indictments of Fischer, Miller, and Lang—must have believed that the government might be able to prove those charges, including the “corruptly” element that he had just defined as “intent to obtain an unlawful advantage for himself or an associate.” In a footnote, he wrote:

[T]his case may involve a professional benefit. The Defendants’ conduct may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency. Like the clerkship that Samuel Vaughan corruptly sought hundreds of years ago, the presidency is a coveted professional position.

Walker’s last reference was to a British case from 1769 that he had described earlier in his opinion, in which Vaughan bribed a duke to get a clerkship with the supreme court of Jamaica.

Henderson, however, rejected that portion of Walker’s opinion.

The “unlawful benefit” the defendant seeks must be financial, professional or exculpatory. ...  Acquittal is thus required if, as I view the evidence, Robertson merely intended to protest the outcome of the election or his (perceived) disenfranchisement or to make some other political point. The majority mistakenly insists that my view conflicts with Judge Walker’s Fischer opinion. ... On the contrary, Judge Walker ... merely stated that he was “not so sure” that the sought-after benefit must be “financial, professional, or exculpatory.” ... And even if this panel agreed with Judge Walker’s suggestion that the office of the President “may” qualify as “a professional benefit,” ... we would remain free to conclude that there was no evidence presented at trial to show that Robertson intended—either alone or collectively—to procure that benefit.

Having outlined the majority and dissenting opinions in Robertson, and the portions of Fischer that are necessary to understand those opinions, I return to my initial point. Yes, so far, the Justice Department has won both of these cases. But these victories are exquisitely unstable. Even without a circuit split, it’s hard to see how the Supreme Court can let Fischer stand. The judges who wrote it can’t agree about its holdings, and its holdings determine the viability of a 20-year felony that an ex-president and major presidential candidate now stands charged with violating.

Moreover, at the appeals court level, judges’ acceptance of the Justice Department’s interpretations of that law have been 100-percent correlated with the political party of the judge’s appointer. If that trend continues, and if either case climbs one more rung up the appellate ladder, the department faces bleak prospects indeed.

Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.

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