588 F.Supp.3d 114
D.D.C.2022Background
- On January 6, 2021, a Joint Session of Congress convened to certify the Electoral College vote; the session was suspended after a crowd breached the U.S. Capitol.
- Defendants Thomas Robertson and Jacob Fracker are alleged to have entered the Capitol during the suspension, engaged in disruptive behavior, and posted statements indicating pride in the breach.
- The government charged both defendants with obstructing an official proceeding in violation of 18 U.S.C. § 1512(c)(2) (count one), along with other misdemeanor counts; a superseding indictment later clarified that the official proceeding was Congress's certification of the Electoral College.
- Robertson moved to dismiss count one; Fracker joined the motion. The court considered three challenges: lack of specificity in the indictment, whether the certification is an "official proceeding," and vagueness of § 1512(c).
- The court denied the motions, adopting reasoning from recent decisions in the D.D.C. that the indictment was adequate, the Electoral College certification is an official proceeding, and the statute is not unconstitutionally vague as applied or facially.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Robertson/Fracker) | Held |
|---|---|---|---|
| Indictment specificity | Indictment (and superseding indictment) adequately identifies the charged official proceeding (Congress's certification) and states essential facts | Original indictment failed to specify the precise official proceeding | Denied dismissal; superseding indictment specifies proceeding and original indictment was sufficient in any event |
| Whether certification is an "official proceeding" under § 1515(a)(1)(B) | Certification is a formal, constitutionally and statutorily mandated Joint Session with adjudicative features and is plainly a proceeding before Congress | Certification is merely ceremonial/administrative and lacks court-like formality, witnesses, or evidence | Denied dismissal; certification qualifies as an official proceeding |
| Vagueness (facial and as-applied) | § 1512(c) provides sufficient notice; 'corruptly' means acting with consciousness of wrongdoing; statute can be clarified by precedent | Statute (and term 'corruptly') is vague, Poindexter supports vagueness; charging choices indicate arbitrariness; Robertson advances as-applied challenge | Denied dismissal; statute survives facial and as-applied challenges; court adopts 'consciousness of wrongdoing' meaning for 'corruptly' and rejects First Amendment bar to using statements as evidence |
Key Cases Cited
- Chiafalo v. Washington, 140 S. Ct. 2316 (2020) (describing role of electors)
- Ballestas v. United States, 795 F.3d 138 (D.C. Cir. 2015) (indictment dismissal is disfavored; sufficiency standard)
- Resendiz-Ponce v. United States, 549 U.S. 102 (2007) (indictment parroting statute can be sufficient)
- Williamson v. United States, 903 F.3d 124 (D.C. Cir. 2018) (indictment need not detail every factual particular)
- Ermoian v. United States, 752 F.3d 1165 (9th Cir. 2014) (interpreting 'official proceeding')
- Perez v. United States, 575 F.3d 164 (2d Cir. 2009) (quasi-adjudicative agency proceeding can qualify)
- Poindexter v. United States, 951 F.2d 369 (D.C. Cir. 1991) (vagueness discussion on 'corruptly')
- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (necessity of "consciousness of wrongdoing" in obstruction context)
- Lanier v. United States, 520 U.S. 259 (1997) (due process and judicial narrowing can cure vagueness)
- Johnson v. United States, 576 U.S. 591 (2015) (vagueness doctrine principles)