One of the Stiffest Charges Against Jan. 6 Insurrectionists Hangs On by a Thread in the D.C. Circuit

On April 7, in a 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit reversed the ruling of U.S. District Judge Carl Nicholsand upheld the felony charge of corruptly obstructing an official proceeding under 18 U.S.C. § 1512(c)(2)against appellees Joseph Fischer, Edward Lang, and Garret Miller for their participation in the insurrection on Jan. 6. 

Judge Florence Y. Pan wrote the opinion of the court, with which Judge Justin R. Walker concurred in part and concurred in the judgment, while Judge Gregory G. Katsas dissented. 

The ruling will trigger a bit of a sigh of relief for the government. For now, it fortifies one of the more consequential charges in the government’s arsenal of legal charges against Jan. 6 defendants. Section 1512(c)(2) carries the stiffest penalty of a potential 20-year sentence and has been deployed by the government against at least 308 of the more than 970 insurrectionistswho’ve been charged with federal crimes stemming from Jan. 6. More than 70 Jan. 6 rioters have already been convicted under § 1512(c)(2), and many have been convicted of that offense alone. 

Still, the government has not cleared all the hills or ascended the mountaintop just yet. The case awaits en banc review by the D.C. Circuit, and in any case, could well find its way to the Supreme Court where the D.C. Circuit’s reading of the statute is far from a sure bet. If the statute is narrowed, it could shake the government’s prosecutorial might to level one of its most potent charges against Jan. 6 insurrectionists; it could also risk upending hundreds of Jan. 6 prosecutions altogether. 

The statute at issue in this case, 18 U.S.C. § 1512(c), reads as follows:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwiseobstructs, 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. (emphasis added)

Nichols’s decisionto dismiss the §1512(c)(2) charge in these cases was based on the word “otherwise” preceding subsection (c)(2). In order to give “otherwise” meaning, and avoid redundancy between the subsections, Nichols ruled that subsection (c)(2) was a narrow, catch-all clause for the conduct similar to that described in clause (c)(1). Put another way, subsection (c)(2) criminalizes other acts not listed in subsection (c)(1) that obstruct an official proceeding if the defendant “take[s] some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” But of the many trial judges in D.C. who have presided over Jan. 6 prosecutions, Nichols is the only one to throw out a § 1512(c)(2) charge on this reasoning. 

At oral argument, the government advanced a broad reading of the statute, endorsed by no less than 14 district court judges in the jurisdiction. Appellees, for their part, argued for a narrower interpretation of “otherwise.” Remarkably though, they didn’t advance Nichols’s interpretation to narrow the scope of subsection (c)(2) to obstruction of justice involving “physical evidence.” Instead, they proposed a slightly broader interpretation: evidence impairment writ large. 

But it didn’t stop there. “Otherwise” was not the showstopper of oral argument. Lurking a few lines above “otherwise” is the mental state requirement of “corruptly.” Although its precise definition was not before the court, as Pan repeatedly reminded defense counsel and her colleagues, it captivated Walker’s attention. So while Pan and Katsas wracked their heads around the precise definition of “otherwise,” Walker looked to “corrupt” intent as a plausible way to narrow the scope of the statute. 

“Otherwise”

And so the opinionstarts with Pan and Walker in harmony. The text and structure, as well as precedent, of § 1512(c)(2) swing the pendulum in favor of the government’s theory, they argue. 

Both agree that the plain meaning of the statute is unambiguous; “§ 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by § 1512(c)(1).” Dictionary definitions support this interpretation. “Otherwise” is equivalent to “in a different manner” or “in another way.” 

That reading of the statute is consistent with prior interpretations of the words and structures used in § 1512(c)(2) and, more specifically, of the word “otherwise.” Put differently, the word “otherwise” in (c)(2) acts as a “catch-all” provision. It covers other obstructive behaviors “that might not constitute a more specific offense involving documents, records, or objects under § 1512(c)(1).” Coupled with the fact that peer circuits in other cases and 14 district judges in the jurisdiction, save for Nichols, “adopted the broad reading of the statute urged by the government to uphold the prosecution of defendants who allegedly participated in the Capitol riot” is “striking,” and their reasoning, “persuasive.” 

But Katsas is unconvinced. He urges his colleagues to read the § 1512(c)(2)’s words in the context of the whole of the statute to ascertain the meaning of “otherwise.” When interpreted in this way, it becomes clear that subsection (c)(2)’s catch-all provision is not limitless. Its remit is circumscribed by the verbs and objects preceding the residual clause “otherwise.” Katsas uses the example that in, “A, B, C, or otherwise D,” “[i]f the boundaries of ‘D’ were readily ascertainable without clarification, a speaker would simply say ‘D,’ rather than using a longer and clunkier formulation with examples and a residual ‘otherwise’ clause.” The direct objects in subsection (c)(1)—record, document, or some other object—and verbs—alter, mutilate, or destroy—help narrow subsection (c)(2)’s meaning rather than giving it an all-encompassing interpretation. 

The definition of “otherwise” that surfaces from Katsas’s exercise is the definition endorsed by the appellees and the Supreme Court in Begay v. United States: “a crime that is similar to the listed examples in some respects but different in others.” Unlike Pan and Walker’s preferred definition “in any other way,” Katsas favors a definition that requires a degree of similarity between the listed examples and the catch-all phrase to avoid reducing the examples to surplusages. 

The “cardinal principle,” Katsas continues, is to “give effect, if possible, to every clause and word of a statute.” Adopting the government’s all-encompassing reading of subsection (c)(2) would “collapse subsection (c)(1) into subsection (c)(2)” as well as 15 of the 21 offenses laid out in § 1512, and various other chapter 73 offenses laid out in §§ 1503 and 1505 because a vast majority of these crimes influence or affect an official proceeding of some kind. In effect, conduct that otherwise would warrant three years of imprisonment, for example, would be supercharged to three decades of imprisonment under subsection (c)(2). 

Katsas’s fixation on surplusage also drives him to adopt the appellees’ interpretation of the scope of subsection (c)(2) as encompassing evidence impairment broadly, rather than the district court’s even narrower interpretation to limit (c)(2) to “physical evidence,” or the government’s interpretation to read (c)(2) as encompassing virtually any act that obstructs justice so long as it’s of a different manner than the ones enumerated in subsection (c)(1). A focus on evidence writ large, as opposed to physical evidence, pleases Katsas for its “Goldilocks quality”: “not too narrow and not too broad, but just right.” 

Pan alone responds potently in footnote 8 of the lead opinion: 

[T]he dissenting opinion cites no authority — other than Goldilocks — for replacing the most natural reading of the statute with an alternative interpretation that has no basis in the statutory text but feels “just right.” … Nor can the dissenting opinion’s unorthodox methodology be justified by its goal of avoiding the broad implications of what Congress wrote in the statute. Although the dissenting opinion cites Bond v. United States … for the proposition that a statute’s expansive reach can create ambiguity, … that case does not explain why the dissent selects the atextual evidence-impairment theory over the district court’s physical-evidence limitation, which is at least grounded in statutory language.

[T]he structure of § 1512(c) is considerably more complicated than the dissent would have us believe. Tellingly, every example of “A, B, C, or otherwise D” proffered by the dissent involves a straightforward list of actions or things, followed by an “otherwise clause” that features a single, related verb or noun. … [H]owever, § 1512(c) includes botha list of verbs and a list of objects before “otherwise,” with a completely different list of verbs and a different type of object following “otherwise.” … The provisions of § 1512(c) are a poor fit for the dissenting opinion’s extensive analysis of the simple “A, B, C, or otherwise D” formulation. 

Pan and Katsas spend the rest of their opinions responding to one another, drawing on statutory history, other canons of interpretation, and the rule of lenity (meaning that when a law is unclear or ambiguous, a court must apply the law in a way where the outcome would be most favorable to the defendant). 

Though informative, their arguments hide the ball. What’s really at stake is that if the higher court adopts the appellee’s evidence impairment approach that Katsas endorses, the cudgel that is §1512(c)(2) will be reduced to sticks. The appellees in this case, and the many more awaiting trial on the obstruction of justice charge, will be off the hook in no small part because their alleged violence on Jan. 6 did not affect “physical or other evidence relevant to the Electoral College certification.” 

“Corrupt” Intent

Though mostly aligned, Walker and Pan disagree on the issue of “corrupt” intent. Walker writes a 20-page concurrence and makes his argument on the issue plain: “I believe that we mustdefine the mental state to make sense of (c)(2)’s act element. If (c)(2) has a broad act element and an even broader mental state, then its ‘breathtaking’ scope is a poor fit for its place as a residual clause in a broader obstruction-of-justice statute.”

Without supplemental briefing by the parties to address this issue, Walker uniformly decides that the correct meaning of “corruptly” is to act “with an intent to procure an unlawful benefit either for [oneself] or for some other person.” Put another way, “[t]he defendant must ‘not only kn[ow] he was obtaining an “unlawful benefit,”’ it must also be his ‘objective’ or ‘purpose.’” 

The “unlawful benefit” requirement is necessary, according to Walker, to avoid vagueness, overbreadth, and the surplusage issue that Katsas highlights in his dissent. Otherwise, “corruptly” would only require the defendant to act with a “wrongful purpose,” which would lead “law abiding people to unwittingly commit a federal crime” through protests or lobbying, for example. Moreover, narrowing the mental state in subsection (c)(2) would also avoid overlap with other provisions in the statute that require “a type of specific intent.”

Walker finds support for his “corrupt” mens rea definition in English common law and federal bribery and obstruction-of-justice statutes, concluding that “the more conduct an obstruction statute [like § 1512(c)(2)] reaches, the more vigilantly we must apply the long established … meaning of ‘corruptly.’” He also pays homage to an originalist interpretation—interpreting “corruptly” in a way that’s “consistent with their ordinary meaning at the time Congress enacted the statute.” 

“Giving ‘corruptly’ its long-established meaning,” Walker continues, would also “make[] sense of § 1512’s statutory scheme” and address the elephant-in-a-mousehole problem that Katsas lays out in his dissent. According to Katsas, the breadth of subsection (c)(2) through its broad actus reus element is such that a reader would not expect to find the provision pigeonholed in the middle of the statute. Instead, one would expect it to come at the end, for example, to act as a catch-all for not just subsection (c), but for the rest of the statute as well. 

Walker proposes a different interpretation. Subsection (c)(2) does not suffer from an elephant-in-a-mousehole problem because it is notan elephant to begin with. The mental state, if curtailed, would limit subsection (c)(2)’s scope to defendants who “intend to procure an unlawful benefit … that [they] know[]is unlawful.” The “large swaths of advocacy, lobbying and protest” that Katsas is worried about being swept up in § 1512(c)(2)’s orbit would be spared. 

Walker’s narrow interpretation of “corruptly,” when taken to its logical conclusion, would require the government to show that each defendant “corruptly” obstructed the certification of the Electoral College vote by using “illegal means (like assaulting police officers) with the intent to procure a benefit (the presidency) for another person (Donald Trump).” That may sound like an easy feat, but consider Walker’s own counterexample: A rioter who joined the protest outside the Capitol may have acted unlawfully when assaulting a police officer, but it’s not necessary that he did so to procure a tangible benefit. He may have joined the protesters to “display his bravado” or to protest the nation’s elites. When the long-arm reach of “corruptly” is limited in this way, the government is stifled in deploying the § 1512(c)(2) charge to its highest level.

Perhaps that’s why Pan doesn’t endorse adding Walker’s proposed guardrails to the statute. Or perhaps, as she said at oral argument, she just feels the question of “corruptly” is not before the D.C. Circuit or was discussed “peripherally in the parties’ briefs and in the district court’s opinion.” In any event, Walker’s definition is not “a product of the crucible of litigation,” Pan concludes. Instead, the plain meaning of the statute combined with the “necessity of ‘corrupt’ intent and the statutory definition of ‘official proceeding,’ both serve to meaningfully cabin the scope of §1512(c)(2),” according to Pan.

Still, in dicta, Pan analyzes three definitions of “corruptly:” (a) “wrongful, immoral, depraved, or evil” conduct (Arthur Andersen LLP v. United States); (b) “corrupt purpose,” through “independently corrupt means,” or both (the government's preferred definition in the present case); and (c) an act 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.” (Justice Antonin Scalia’s partial concurrence in United States v. Aguilar). Under all three formulations, the throughline of “corrupt” intent is “an independently unlawful act” that is “‘wrongful’ and encompasses a perpetrator’s use of ‘independently corrupt means’ or ‘unlawful method.’” The behavior of each appellee assaulting law enforcement, according to Pan, meets the test of independently unlawful conduct. And their alleged intention of procuring a benefit by helping their preferred candidate overturn the Electoral College vote also stands the crucible of Scalia’s test in Aguilar.  

In this respect, Katsas shares “common ground” with Pan. He declines to settle on the definition of “corruptly” and declines to endorse Walker’s definition. Like Pan, he also contends that §1512(c)(2) “is not vague as applied to the [appellees’] extreme conduct alleged.”

***

As § 1512(c)(2) now awaits en banc review by the D.C. Circuit, this opinion is almost certainly a precursor to the principal issue the court will need to resolve: Howshould § 1512(c)(2)’s scope be limited? If the court adopts the broadest interpretation of the statute endorsed by Pan, it may well be narrowed at the Supreme Court level, as the high court has routinely “rejected ‘improbably broad’ interpretations of criminal statutes.” It is perhaps anticipating that mood that has Walker and Katsas going to great lengths to preemptively narrow the statute at this stage.