*2 Before: K ATSAS , W ALKER and P AN , Circuit Judges . Opinion for the Court filed by Circuit Judge P AN , with whom Circuit Judge W ALKER joins except as to Section I.C.1 and footnote 8.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge W ALKER .
Dissenting opinion filed by Circuit Judge K ATSAS .
P AN , Circuit Judge : As Congress convened on January 6, 2021, to certify the results of the 2020 presidential election in favor of Joseph R. Biden, Jr., thousands of supporters of the losing candidate, Donald J. Trump, converged on the United States Capitol to disrupt the proceedings. The Trump supporters swarmed the building, overwhelming law enforcement officers who attempted to stop them. The chaos wrought by the mob forced members of Congress to stop the certification and flee for safety. Congress was not able to resume its work for six hours. The question raised in this case is whether individuals who allegedly assaulted law enforcement officers while participating in the Capitol riot can be charged with corruptly obstructing, influencing, or impeding an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). The district court held that the statute does not apply to assaultive conduct, committed in furtherance of an attempt to stop Congress from performing a constitutionally required duty. We disagree and reverse.
B ACKGROUND
Appellees Joseph Fischer, Edward Lang, and Garret Miller were charged by indictment in separate cases with various offenses arising from their alleged participation in the Capitol riot on January 6, 2021. Although we draw from the criminal complaints and pre-trial briefing to describe their alleged conduct, we consider only the indictments to determine the sufficiency of any charge.
Fischer allegedly belonged to the mob that forced Congress to stop its certification process. [1] On January 6, 2021, he encouraged rioters to “charge” and “hold the line,” had a “physical encounter” with at least one law enforcement officer, and participated in pushing the police. Fischer Crim. Compl., Appellant’s Appendix (“App.”) 423–27. Before January 6, he allegedly sent text messages to acquaintances, stating: “If Trump don’t get in we better get to war”; “Take democratic [C]ongress to the gallows. . . . Can’t vote if they can’t breathe . . . lol”; and “I might need you to post my bail. . . . It might get violent. . . . They should storm the capital [sic] and drag all the democrates [sic] into the street and have a mob trial.” Gov’t Opp’n to Mot. to Clarify and Modify Conditions of Release, App. 433–34. Fischer’s seven-count indictment charges him with assaulting both Capitol Police and MPD officers. Fischer Indictment, App. 444.
Lang, as a member of the mob that forced Congress to stop its certification procedure, allegedly fought against police officers in the Capitol for more than two hours, repeatedly striking officers with a bat and brandishing a stolen police shield. His 13-count indictment alleges that he assaulted six Metropolitan Police Department (“MPD”) officers, caused bodily injury to one of them, and engaged in disorderly conduct and physical violence with a bat and shield in a restricted area of the Capitol. See Lang Indictment, App. 52–57.
Miller allegedly traveled to the District of Columbia “for this [T]rump shit,” bringing a grappling hook, rope, bullet- proof vest, helmets, and a mouthguard: He believed that “crazy shit” was going to happen and a “civil war could start.” Am. Crim. Compl., App. 75. In his 12-count indictment, the government alleges that Miller was part of the mob that forced its way into the Capitol and stopped Congress’s certification process; and that he pushed against U.S. Capitol Police officers to gain entrance to the Rotunda. Shortly after the riot, Miller allegedly took to Twitter and Facebook to advocate the assassination of a U.S. Congresswoman, and to declare that a Capitol Police officer deserved to die, threatening to “hug his neck with a nice rope.” Miller Indictment, App. 86–87.
The government charged all three appellees with, among other things, the felony offense of Assaulting, Resisting, or Impeding Certain Officers, in violation of 18 U.S.C. § 111(a)(1); and the misdemeanor offenses of Disorderly Conduct in a Capitol Building, in violation of 18 U.S.C. § 5104(e)(2)(D), and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2) and (b)(l)(A). The felony assault count alleges that each appellee “did forcibly assault, resist, oppose, impede, intimidate, and interfere with[] an officer and employee of the United States . . . and any person assisting such an officer and *5 employee . . . and . . . the acts in violation of this section involve the intent to commit another felony.” Miller Indictment, App. 86; see also Fischer Indictment, App. 444 (also alleging that “the acts in violation of this section involve physical contact with the victim”); Lang Indictment, App. 52 (same). The disorderly conduct charges specify that each appellee “willfully and knowingly engaged in disorderly and disruptive conduct in any of the Capitol Buildings with the intent to impede, disrupt, and disturb the orderly conduct of a session of Congress”; and “did knowingly, and with intent to impede and disrupt the orderly conduct of Government business and official functions, engage in disorderly and disruptive conduct . . . within the United States Capitol . . . so that such conduct did in fact impede and disrupt the orderly conduct of Government business and official functions.” Miller Indictment, App. 87–88; see also Fischer Indictment, App. 445 (alleging similar charges); Lang Indictment, App. 55–57 (same). Appellees do not challenge the sufficiency of the counts that charge them with felony assault and disorderly conduct.
The government also charged each appellee with one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2), as follows:
On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer, Lang, and Miller] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18.
Lang Indictment, App. 55; Miller Indictment, App. 85-86; Fischer Indictment, App. 444. Each appellee moved to dismiss the § 1512(c)(2) count, asserting that the statute did not prohibit his alleged conduct on January 6, 2021. Section 1512(c) provides in full:
(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.
18 U.S.C. § 1512(c).
The district court granted each appellee’s motion to
dismiss. After carefully reviewing the text and structure of the
statute, the district court concluded that § 1512(c) is ambiguous
with respect to how subsection (c)(2) relates to subsection
(c)(1). Although subsection (c)(1) concerns obstructive
conduct involving “a record, document, or other object,” and
the words of subsection (c)(2) more generally addrеss
“obstruct[ing], influenc[ing], or imped[ing] any official
proceeding, or attempt[ing] to do so,” the district court focused
on the meaning of the word “otherwise” that connects the two
provisions.
United States v. Miller
,
S TANDARD OF R EVIEW
A defendant in a criminal case may move to dismiss an
indictment before trial for “failure to state an offense,” Fed. R.
Crim. P. 12(b)(3)(B)(v), including because the statute under
which he is charged does not apply to his alleged conduct.
Hamling v. United States
,
A NALYSIS
The government asserts that the words “corruptly . . . obstructs, influences, and impedes any official proceeding” in 18 U.S.C. § 1512(c)(2) have a broad meaning that encompasses all forms of obstructive conduct, including appellees’ allegedly violent efforts to stop Congress from certifying the results of the 2020 presidential election. Thus, the government contends, the district court erred when it adopted an unduly narrow interpretation of § 1512(c)(2) that limits the statute’s application to obstructive conduct “with respect to a document, record, or other object.” Gov’t’s Br. 13 (quoting Miller , 589 F. Supp. 3d at 78). For their part, appellees halfheartedly defend the trial court’s interpretation, but more vigorously advance a different argument: that § 1512(c)(2) prohibits obstructive acts related not just to “a record, document, or other object,” but also to all acts of general “evidence impairment.” Appellees’ Br. 2, 15. Appellees argue that under either the district court’s document-focused reading of the statute or their own evidence- impairment theory, appellees’ conduct on January 6, 2021, is beyond the reach of § 1512(c)(2). Faced with these three competing interpretations of the statute, we conclude that the government has the best of this argument.
I. Interpretation of § 1512(c)(2)
When interpreting a statute, “we begin by analyzing the
statutory language, ‘assuming that the ordinary meaning of that
language accurately expresses the legislative purpose.’”
Hardt
*9
v. Reliance Standard Life Ins. Co.
,
[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Conn. Nat’l Bank v. Germain
, 503 U.S. 249, 253–54 (1992)
(citations and internal quotation marks omitted);
accord
Rotkiske v. Klemm
,
A. Text and Structure
We start by reiterating and examining the text of § 1512(c):
(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 *10 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.
18 U.S.C. § 1512.
In our view, the meaning of the statute is unambiguous.
Subsection (c)(1) contains a specific prohibition against
“corruptly” tampering with “a record, document, or other
object” to impair or prevent its use in an official proceeding,
while subsection (c)(2) proscribes “corrupt[]” conduct that
“otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so . . . .” Under the most natural
reading of the statute, § 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). This reading
incorporates the commonplace, dictionary meaning of the word
“otherwise”: “in a different manner.”
See Otherwise
,
Oxford
English Dictionary
(3d ed. 2004) (defining “otherwise” as “[i]n
another way or ways; in a different manner; by other means; in
other words; differently”);
Otherwise
,
Black’s Law Dictionary
(6th ed. 1990) (defining “otherwise” as “[i]n a different
manner; in another way, or in other ways”);
see also Sandifer
v. U.S. Steel Corp.
, 571 U.S. 220, 227–28 (2014) (using
contemporary dictionaries to ascertain ordinary, contemporary,
common meaning). Giving the text “its ordinary or natural
meaning,”
FDIC v. Meyer
, 510 U.S. 471, 476 (1994), the
statute essentially says, “Whoever corruptly (1) tampers with a
document, record, or object to interfere with its use in an
official proceeding; or (2) in a different manner obstructs,
influences, or impedes any official proceeding, shall be fined
or imprisoned.”
See also Wis. Cent. Ltd. v. United States
, 138
*11
S. Ct. 2067, 2074 (2018) (“[I]t’s a fundamental canon of
statutory construction that words generally should be
interpreted as taking their ordinary, contemporary, common
meaning at the time Congress enacted the statute.” (cleaned up)
(quoting
Perrin v. United States
,
That natural, broad reading of the statute is consistent with
prior interpretations of the words it uses and the structure it
employs. The terms “obstruct,” “influence,” and “impede” can
be found in several statutes pertaining to criminal obstruction
of justice, such as 18 U.S.C. § 1503, which targets “corruptly
. . . influenc[ing], obstruct[ing], or imped[ing] the due
administration of justice”; and § 1505, which addresses
“corruptly . . . influenc[ing], obstruct[ing], or imped[ing]” the
due and proper administration of law” in certain proceedings
or investigations. The parties do not dispute the meaning of
those words or their typically expansive scope.
See United
States v. Aguilar
,
Moreover, the word “otherwise” has been given its
common meaning of “in a different manner” when used in
similarly structured statutes. Section 1512(c) contains an
initial subsection announcing a particular requirement,
followed by a separately numbered subsection that begins with
the word “otherwise” and introduces a broader requirement.
*12
The latter subsection is a “catch-all”
[2]
that “cover[s] otherwise
obstructive behavior that might not constitute a more specific
offense” involving documents, records, or objects under
§ 1512(c)(1).
United States v. Petruk,
Thus,
the broad
interpretation of
the statute —
encompassing all forms of obstructive acts — is unambiguous
and natural, as confirmed by the “ordinary, contemporary,
*13
common meaning” of the provision’s text and structure.
Perrin
,
B. Precedents
Not surprisingly, the vast majority of courts interpreting the statute have adopted the natural, broad reading of § 1512(c)(2), applying the statute to all forms of obstructive conduct that are not covered by subsection (c)(1).
The Seventh and Eighth Circuits have both acknowledged the expansive ambit of subsection (c)(2). See Petruk , 781 F.3d at 447 (“[Section] 1512(c)(2) operates as a catch-all to cover otherwise obstructive behavior that might not constitute a more specific offense like document destruction, which is listed in (c)(1).” (citation omitted)); United States v. Burge , 711 F.3d 803, 809 (7th Cir. 2013) (“The expansive language in this provision operates as a catch-all to cover ‘otherwise’ obstructive behavior that might not fall within the definition of document destruction.”).
Furthermore, our peer circuits have applied the statute to
reach a wide range of obstructive acts, not just those limited to
tampering with documents or objects. Those courts have found
“otherwise” obstructive conduct under subsection (c)(2) to
include: (1) lying in written responses to civil interrogatory
questions,
Burge
, 711 F.3d at 808–09; (2) soliciting
information about a grand jury investigation to evade
surveillance,
Volpendesto
,
To defend a narrower reading of the statute, appellees note
that the above-cited cases involve “evidence impairment,”
Appellеes’ Br. 25–26, and insist that “the extension of Section
1512(c)(2) to acts not intended to affect the availability or
integrity of evidence is unprecedented,”
id
. 16. While the cited
cases happen to address behavior that impaired evidence, none
of them suggests that subsection (c)(2) is limited to such
conduct. Indeed, as discussed above, several of the opinions
affirmatively describe § 1512(c)(2) in capacious terms.
See,
e.g.
,
Petruk
,
Notably, no fewer than fourteen district judges in this
jurisdiction have adopted the broad reading of the statute urged
by the government to uphold the prosecution of defendants
who allegedly participated in the Capitol riot.
[3]
Although the
*15
opinions of those district judges are not binding on us, the near
unanimity of the rulings is striking, as well as the thorough and
persuasive reasoning in the decisions.
See, e.g.
,
McHugh
, 2022
WL 1302880;
Montgomery
,
610 F. Supp. 3d 229, 233–35 (D.D.C. 2022) (Cooper, J.);
United
States v. Williams
, No. 21-cr-618,
To be sure, outside of the January 6 cases brought in this
jurisdiction, there is no precedent for using § 1512(c)(2) to
prosecute the type of conduct at issue in this case. But “the
whole value of a generally phrased residual clause . . . is that it
serves as a catchall for matters not specifically contemplated
. . . .”
Republic of Iraq v. Beaty
,
C. Other Elements
Although the text of § 1512(c)(2) plainly extends to a wide range of conduct, the statute contains some important limitations: The act of “obstruct[ing], influenc[ing], and imped[ing]” described in subsection (c)(2) must be accompanied by “corrupt” intent; and the behavior must target an “official proceeding.” Those other elements of a § 1512(c)(2) offense are not the focus of this appeal, but we nevertheless note that they provide significant guardrails for prosecutions brought under the statute.
subsection.”). We have reviewed those cases and find them unpersuasive.
1. “Corrupt” Intent The distriсt court expressly declined to interpret “corruptly” as used in § 1512(c), concluding only that “the common meanings of ‘corruptly’ are sufficiently capacious so as not to limit or clarify the actus reus charged in the Indictment.” Miller , 2022 WL 1718984, at *5 n.3 (denying government’s motion for reconsideration). I do not agree that the meaning of “corruptly” is necessarily “capacious,” and note that a narrow construction of “corruptly” would indeed limit the actus reus of a § 1512(c)(2) violation. The requirement of “corrupt” intent prevents subsection (c)(2) from sweeping up a great deal of conduct that has nothing to do with obstruction — for instance, lobbyists who know they advocate for morally wrongful causes. See Appellees’ Br. 47. Notably, the other crimes enumerated in § 1512 — such as killing, threatening, or dissuading witnesses — are classic examples of obstruction of justice. See Obstruction of Justice , Black’s Law Dictionary (9th ed. 2009) (defining “obstruction of justice” as “willful act[s] of corruption, intimidation or force which tends[] in any way to distort or impede the administration of law.” (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 552 (3d ed. 1982))). Subsection (c)(2) best fits with those crimes if “corruptly” constrains its scope.
As relevant to the instant case, the allegations against
appellees appear to be sufficient to meet any proposed
definition of “corrupt” intent. Without expressing a preference
for any particular definition of “corruptly,” I consider three
candidates. First, in considering the meaning of 18 U.S.C.
§ 1512(b) in
Arthur Andersen LLP v. United States
, the
Supreme Court noted that the “natural meaning” of “corruptly”
is “clear” and that the word is “normally associated with
wrongful, immoral, depraved, or evil” conduct.
Under all those formulations, “corrupt” intent exists at
least when an obstructive action is independently unlawful —
i.e.
, an independently unlawful act is necessarily “wrongful”
and encompasses a perpetrator’s use of “independently corrupt
means” or “an unlawful method.”
Id.
;
North
,
The concurring opinion embraces the definition of
“corruptly” that requires proof that the defendant acted “with
an intent to procure an unlawful benefit either for himself or
for some other person.” Concurring Op. at 1. But the meaning
of “corruptly” was discussed only peripherally in the parties’
briefs and in the district court’s opinion, and no party requested
the standard that the concurrence adopts. Thus, the detailed
analysis proffered by the concurrence is not a product of the
crucible of litigation.
See Carducci v. Regan
,
Although the dissenting opinion disagrees with this opinion about the scope of the actus reus under § 1512(c), we share much common ground on the issue of mens rea. The dissent declines to settle on a precise meaning of “corruptly” at this time, declines to endorse the concurrence’s definition of “corruptly,” and recognizes that § 1512(c) is not vague as applied to the “extreme conduct” of the appellees in this case. See Dissenting Op. at 31–38 (discussing possible definitions of “corruptly”), 35–37 (criticizing definition of “corruptly” favored by the concurrence), 37 (stating that it is “true” that § 1512(c) “is not vague as applied to the extreme conduct alleged here”). Notably, there does not appear to be any conflict between the dissent and this opinion regarding the sufficiency of the allegations against the appellees in this case to establish the requisite mens rea . The dissent expresses concern about how to address the mens rea of advocates, lobbyists, and peaceful protesters, who are not before the court, see id. at 32–34, 37; but the dissent never takеs the position that appellees did not act “corruptly” when they assaulted police officers to obstruct proceedings before the Congress. Instead, the dissent argues only that the mens rea element does not meaningfully limit the scope of § 1512(c) and that we should *21 acknowledge that Congress limited the actus reus to narrow the reach of the statute. Id. at 38. [5]
Finally, appellees err in arguing that the term “corruptly”
“takes on unconstitutional vagueness” in circumstances outside
the context of a judicial proceeding. Appellees’ Br. 33. A
criminal law violates the Due Process Clause if it is “so vague
that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary
enforcement.”
Johnson v. United States
, 576 U.S. 591, 595
(2015). Appellees contend that prohibiting “bad, evil, and
improper” purposes is insufficient where congressional
proceedings are implicated because “no one can seriously
question that people constantly attempt, in innumerable ways,
to obstruct or impede congressional committees.” Appellees’
Br. 33–34 (quoting
North
, 910 F.2d at 882;
United States v.
Reeves
,
of the allegations in this particular case — it states only that the
alleged conduct of the three appellees is sufficient under any understanding of “corrupt” intent.
See supra
at 17–18, 21. By
contrast, the concurring opinion goes further and affirmatively
adopts a new test for “corrupt” intent that has not been requested by
any party — that is not a “logical subset” of an opinion that expresses
no preference for any definition of “corruptly.”
See supra
at 18;
King
,
2. “Official Proceeding”
The district court ruled that congressional certification of
the Electoral College count is an “official proceeding.”
See
Miller
, 589 F. Supp. 3d at 66–67 (“[A]s used in § 1512,
‘official proceeding’ is a defined term, and its definition covers
the Congressional certification of Electoral College results.”).
Appellees challenge that ruling, apparently as an alternative
basis to uphold the district court’s dismissal of the § 1512(c)(2)
count.
See Yeager v. United States
,
We agree with the district court. The statutory definition of “official proceeding” under § 1512(c)(2) includes a “proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B). Although appellees strain to argue that the Electoral College vote certification is not a “proceeding before the Congress” because it does not involve “investigations and evidence,” Appellees’ Br. 40, 43–47, we see no such limit in the ordinary meaning of the word “proceeding.” See Proceeding , Oxford English Dictionary (2d ed. 1989) (“[T]he carrying on of an action or series of actions.”). Appellees rely on a narrower, alternative definition of “proceeding” to support their position — “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment; any procedural mеans for seeking redress from a tribunal or agency; and the business conducted by a court or other official body; a hearing.” Appellees’ Br. 45 (citing United States v. Ermoian , 752 F.3d 1165, 1169 (9th Cir. 2013) (quoting Proceeding , Black’s Law Dictionary (8th ed. 2004))). But that definition is *24 inapt when interpreting the meaning of a “proceeding before the Congress. ” 18 U.S.C. § 1515(a)(1)(B) (emphasis added).
Notably, Congress follows statutory directives to complete the certification of the Electoral College vote, including: (1) convening a joint session at 1:00 PM on January 6 in the year following the presidential election; (2) appointing four tellers to read and list the votes; (3) announcement of the voting results by the President of the Senate; and (4) allowing written objections from members of Congress, subject to a procedure for submitting and resolving such objections. See 3 U.S.C. § 15. Those directives reflect Congress’s own intent that the vote certification shall be a “proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B).
* * *
In sum, the necessity of “corrupt” intent and the statutory definition of “official proceeding” both serve to meaningfully cabin the scope of § 1512(c)(2). The statute therefore is not so expansive as to demand a narrowing construction, as appellees appear to contend.
II. Alternative Interpretations
In contrast to the straightforward reading of § 1512(c)(2)
urged by the government, appellees and the district court’s
interpretations of the statute “read like elaborate efforts to
avoid the most natural meaning of the text.”
Patel v. Garland
,
A. Statutory Text and Structure
The district court construed the term “otherwise” in
§ 1512(c)(2) to mean “similar . . . in some respects but different
in others.”
See Miller
,
Appellees, meanwhile, endorse the district court’s definition of “otherwise” but argue that the similarity between the two subsections is that they both address “evidence impairment.” Appellees’ Br. 18–20. Appellees further assert that their narrowing interpretation is compelled by the principles that courts should not construe general terms to render a statute’s more specific proscriptions meaningless (the ejusdem generis canon) and should construe words in a statute in light of the company they keep (the noscitur a sociis canon). In their view, the terms “obstruct[ing], influenc[ing], or imped[ing]” found in subsection (c)(2) are general ones that follow and “keep company” with subsection (c)(1)’s “more specific” terms of “alter[ing], destroy[ing], mutilat[ing], or conceal[ing].” Appellees’ Br. 19. As a result, they contend, *26 “subsection (c)(2) criminalizes acts different from the object- impairment crimes listed in subsection (c)(1) but which are still intended to affect the integrity or availability of evidence . . . .” Id. at 20.
As an initial matter, it is implausible that Congress intended § 1512(c)(2) to apply to obstructive acts related only to documents, objects, records, or other evidence, yet chose the words “otherwise obstructs, influences, or impedes any official proceeding” to express that intent. If Congress’s goal were to criminalize a subset of obstructive behavior, it easily could have used words that precisely define that subset, such as “otherwise compromises a record, document, or other object,” or “otherwise impairs the integrity or availability of evidence for use in an official proceeding.” See Montgomery , 578 F. Supp. 3d at 73. In fact, Congress enacted exactly that kind of precise directive in § 1505 and in § 1519, the latter at the same time as § 1512(c). See 18 U.S.C. § 1505 (“Whoever . . . withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material . . . [s]hall be [fined, imprisoned, or both].”); § 1519 (“Whoever . . . alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object . . . shall be [fined, imprisoned, or both].”); see also Sarbanes-Oxley Act, Pub. L. No. 107-204, § 802(a), 116 Stat 745, 800 (2002). Congress thus has demonstrated its capacity to clearly target document- related misconduct when it wishes to do so. To accept either the document-focused or evidence-limited interpretation of § 1512(c), we would have to conclude that Congress expressed its intent with words that were almost certain to be misunderstood. See supra Section I.B (enumerating the many federal courts that have given § 1512(c)(2) its natural, broad reading and failed to decode the statute’s ostensibly “true” meaning).
The district court’s cramped, document-focused
interpretation is also dubious because the words of
§ 1512(c)(1) are already quite comprehensive — that
subsection addresses “alter[ing], destroy[ing], mutilat[ing], or
conceal[ing]” documents, records, and objects. It is difficult to
envision why a catch-all aimed at even more document-related
acts would be necessary as a backstop. Although the district
court opined that § 1512(c)(1) arguably does not account for
conduct that “covers up, falsifies, or makes a false entry in” a
record or document,
see Miller
, 589 F. Supp. 3d at 71, we
cannot assume, and think it unlikely, that Congress used
expansive language to address such narrow concerns. We must
accept, and think it far more likely, that Congress said what it
meant and meant what it said: Section 1512(c)(2) prohibits all
acts that obstruct, influence, or impede any official proceeding
or attempt to do so, beyond the document or object-related acts
that are already covered by § 1512(c)(1).
See Conn. Nat’l
Bank
,
The district court appeared to believe that its interpretation
of § 1512(c)(2) was compelled by
Begay v. United States
.
See
Miller
,
Begay
is inapposite because it interprets a statute with a
very different structure. Section 924(e)(2)(B)(ii) includes a list
of examples followed by “otherwise” in a single, unbroken
sentence within the same subparagraph.
See
§ 924(e)(2)(B)(ii)
(“burglary, arson, or extortion, involves use of explosives, or
otherwise
involves conduct that presents a serious potential risk
of physical injury to another” (emphasis added)). By contrast,
the “otherwise” clause in § 1512(c)(2) sits within a separately
numbered subparagraph, after a semicolon and line break, all
of which put distance between it and the lists of verbs and
objects included in subsection (c)(1). Thus, while the position
of “otherwise” in § 924(e)(2)(B)(ii) inherently relates the word
to the list immediately before it, § 1512(c)(2)’s structure places
(c)(1) and (c)(2) “visually on an equal footing and indicat[es]
that they have separate meanings.”
Loughrin v. United States
,
Moreover, Begay did not ultimately rely on the more obscure reading of “otherwise” embraced by the district court and appellees, focusing instead on the structure of § 924(e)(2)(B)(ii). Indeed, the Begay Court conceded that the definition of “otherwise” favored by the district court and appellees need not inexorably be applied, noting that “the word ‘otherwise’ can (we do not say must ) refer to a crime that is similar to the listed examples in some respects but different in others . . . .” Id. at 144 (emphasis in original) (citing id . at 150– 51 (Scalia, J., concurring in the judgment)). Begay thus does *29 not dictate an evidence-focused reading of § 1512(c)(2), and does not necessarily even support it.
Appellees’ invocation of the
ejusdem generis
and
noscitur
a sociis
canons also does not convince us to reject the natural
reading of § 1512(c)(2). “The
ejusdem generis
canon applies
when a drafter has tacked on a catchall phrase at the end of an
enumeration of specifics, as in
dog, cats, horses, cattle, and
other animals
.” Antonin Scalia & Bryan A. Garner,
Reading
Law: The Interpretation of Legal Texts
199 (2012) (emphasis
in original). In other words, the canon requires that the term at
issue be “directly preceded by a list of terms.”
Overdevest
Nurseries, L.P. v. Walsh
, 2 F.4th 977, 983 (D.C. Cir. 2021).
Likewise, the
noscitur a sociis
or associated-words canon
generally instructs that “a word is known by the company it
keeps,”
Ali v. Fed. Bureau of Prisons
, 552 U.S. 214, 226
(2008), but requires some context cues indicating that the
statutory text should be limited by its company,
see id.
, and
“especially holds that ‘words grouped in a list should be given
related meanings,’” Scalia & Garner,
Reading Law
195
(quoting
Third Nat’l Bank in Nashville v. Impac Ltd.
, 432 U.S.
312, 322 (1977)).
See also Overdevest Nurseries
, 2 F.4th at
983 (“[T]he
noscitur
canon appl[ies] when the term in question
is directly preceded by a list of terms.”). In § 1512(c)(2), the
word “otherwise” does not immediately follow a list of terms.
The supposedly general verbs appellees cite are in separate
subparagraphs that provide no other cues that they should be
read in concert with the specific verbs or objects preceding
them.
See
§ 1512(c)(2);
Ali
,
More fundamentally, appellees do not identify any
“common attribute” connecting
the
two subsections,
undermining their reliance on contextual canons.
See Ali
, 552
U.S. at 224–26. The subsections’ disparate verbs and objects
defy any attempt to group them together: subsection (c)(1)
*30
protects “a record, document, or other object” from being
“altered, destroyed, mutilated or concealed” while subsection
(c)(2) prohibits “obstructing, influencing or impeding any
official proceeding.” § 1512(c). The verbs and nouns in each
subsection do not share any qualities or characteristics that help
determine their meaning in context. Indeed, it is challenging
to imagine how anyone could either alter, destroy, mutilate, or
conceal an official proceeding, or obstruct, influence, or
impede a record.
See Ali
,
B. Statutory History and Context
The district court concluded, and appellees now argue, that § 1512(c)(2)’s historical development and context foreclose the natural reading of its words. Of course, we need not consider the legislative history because the meaning of the statute is clear from its text. See Milner v. Dep’t of Navy , 562 U.S. 562, 572 (2011); N. Am. Butterfly Ass’n v. Wolf , 977 F.3d 1244, 1261 (D.C. Cir. 2020). Nevertheless, we have reviewed the district court’s analysis of the statute’s development and history and find nothing in those materials that is inconsistent with a broad reading of the statute.
1. Statutory Development and Legislative History Congress enacted § 1512(c)(2) as part of the Sarbanes- Oxley Act. That “Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had *31 systematically destroyed potentially incriminating documents.” Yates , 574 U.S. at 535–36. The Enron prosecutions revealed a critical gap in the U.S. Code: The then- current version of § 1512(b) prohibited a defendant from persuading another person to destroy records in connection with an investigation or other proceeding but imposed no liability on those who personally destroyed evidence. See id. at 536; see also S. Rep. No. 107-146, at 6–7 (May 6, 2002) (“[C]ertain current provisions in Title 18, such as section 1512(b), make it a crime to persuade another person to destroy documents, but not a crime for a person to destroy the same documents personally. . . . [I]n the current Andersen case, prosecutors have been forced to use the ‘witness tampering’ statute, 18 U.S.C. 1512, and to proceed under the legal fiction that the defendants are being prosecuted for telling other people to shred documents, not simply for destroying evidence themselves.”).
The district court and appellees contend that a broad
reading of the statute is unsupported by the statutory history
because such a construction does more than simply fill the gap
exposed by the Enron scandal. But any discrepancy between
Congress’s primary purpose in amending the law and the broad
language that Congress chose to include in § 1512(c)(2) must
be resolved in favor of the plain meaning of the text. After all,
“statutory prohibitions often go beyond the principal evil to
cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our
legislators by which we are governed.”
Oncale v. Sundowner
Offshore Servs., Inc.
,
Appellees and the district court’s reliance on legislative history to support their interpretations of § 1512(c) is also unavailing. Although the Senate Report on the initial draft of *32 the Sarbanes-Oxley Act explains that provisions like § 1519 were intended to address corporate, evidence-related fraud, see Yates , 574 U.S. at 536, that Report sheds no light on the purpose of § 1512(c). Unlike the other provisions of the Act, § 1512(c) was introduced in a flоor amendment late in the legislative process. See 128 Cong. Rec. S6542 (daily ed. July 10, 2002). The title of that amendment — “Tampering with a Record or Otherwise Impeding an Official Proceeding ” — not only tracks the language of subsections § 1512(c)(1) and (c)(2), but also suggests that subsection (c)(2) prohibits any obstruction of an official proceeding. See id. (emphasis added); Sarbanes-Oxley Act, § 1102; see also Yates , 574 U.S. at 540 (“While . . . headings are not commanding, they supply cues” about Congress’s intent).
The district court and appellees postulate that the title of
§ 1512 — “Tampering with a witness, victim, or an informant”
— is significant because it “captures the narrow, evidentiary
focus of the rest of the statute.”
Miller
,
The only other hints about Congress’s intent in adding § 1512(c) are found in floor statements. “[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.” See NLRB v. SW Gen., Inc. , 580 U.S. *33 288, 307 (2017). To the extent that such statements are useful here, they suggest that § 1512(c) was intended to cover more than just document-related or evidence-impairment crimes. To be sure, some statements by Senators Trent Lott and Orrin Hatch reflect a desire to prohibit the destruction of documents or evidence. See 148 Cong. Rec. S6545 (statement of Sen. Lott) (“The second section [of the amendment] would enact stronger laws against document shredding . . . I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.”), S6550 (statement of Sen. Hatch) (“[T]his amendment would permit the government to prosecute an individual who acts alone in destroying evidence, even where the evidence is destroyed prior to the issuance of a grand jury subpoena.”). Yet Senator Hatch also indicated that the amendment was aimed at obstruction generally, remarking that it “strengthens an existing federal offense that is often used to prosecute document shredding and other forms of obstruction of justice .” Id. S6550 (emphasis added).
In short, subsection (c)(2)’s historical development is entirely consistent with the broad language of its text.
2. Statutory Context: Surplusage and Mouseholes The district court and appellees further believe that the doctrine disfavoring “surplusage” weighs in favor of a limiting interpretation. They contend that reading subsection (c)(2) broadly renders other, more specific prohibitions, like those in subsection (c)(1), unnecessary or “surplusage.” Specifically, the district court asserted that the broad reading of § 1512(c)(2) would swallow conduct already made unlawful by provisions in § 1512 that generally prohibit indirect attempts to obstruct *34 or impede a proceeding. [6] Appellees add that the natural reading of § 1512(c)(2) would duplicate § 1503 and § 1505.
As the district court acknowledged, “superfluity is not
typically, by itself, sufficient to require a particular statutory
interpretation.”
Miller
,
Much of the superfluity engendered by § 1512(c) is easily
explained by the fact that Congress drafted and enacted that
subsection after the rest of § 1512.
See Yates
,
itself.”). Nor is the fact that overlapping subsections have different penalties a reason to contradict the plain meaning of subsection (c)(2). See United States v. Batchelder , 442 U.S. 114, 120–21 (1979) (finding no ambiguity in 18 U.S.C. § 924(a) even though 18 U.S.C. § 1202 “provides different penalties for essentially the same conduct,” because that is “no justification for taking liberties with unequivocal statutory language.”).
The district court was additionally troubled by the
placement of subsection (c)(2). It reasoned that subsection
(c)(2) was much broader in scope than subsections (a), (b),
(c)(1), or (d), and that this “inconsistency would come in the
oddest of places: in a subsection of a subsection nestled in the
middle of the statute.”
Miller
,
The “elephants in mouseholes” principle does not apply
here. That principle recognizes that “Congress . . . does not
alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions — it does not, one might say, hide
elephants in mouseholes.”
Whitman v. Am. Trucking Ass’ns,
Inc.
, 531 U.S. 457, 468 (2001). Section 1512(c)(2) is not
vague, as we have explained. Nor is it an “ancillary provision.”
Subsection (c) expands the scope of § 1512 to cover direct acts
of obstruction. It forbids corrupt obstruction of official
proceedings and is logically located within a section that
enumerates obstructive offenses
that affect official
proceedings. And that section, in turn, sits within a Chapter
dedicated to obstruction crimes.
See Yates
,
C. Lenity and Restraint
Finally, the district court cited the principle of restraint and the rule of lenity to decline to apply § 1512(c)(2) to the alleged conduct of appellees; and appellees urge us to rely on those concepts here. Both are inapplicable.
Under the principle of restraint, “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Dowling v. United States , 473 U.S. 207, 214 (1985) (citations and internal quotation marks omitted). Similarly, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos , 553 U.S. 507, 514 (2008). The rule thus “applies only when a criminal statute contains a ‘grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what Congress intended.’” Ocasio v. United States , 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States , 524 U.S. 125, 138–39 (1998)); see also United States v. Shabani , 513 U.S. 10, 17 (1994) (explaining that the rule “applies only when, *38 after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”). As we have explained, the language of § 1512(c)(2) is clear and unambiguous. Restraint and lenity therefore have no place in our analysis.
* * *
For all the foregoing reasons, we conclude that the district court erred in dismissing the counts charging each appellee with Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2). Appellees’ alleged conduct falls comfortably within the plain meaning of “corruptly . . . obstruct[ing], influenc[ing], or imped[ing] [an] official proceeding, or attempt[ing] to do so.” The alternative interpretations of § 1512(c)(2) proffered by the district court and appellees fail to convince us to depart from the natural reading of the statute’s unambiguous text. Accordingly, we reverse the orders of the district court, and remand for further proceedings consistent with this opinion. [8]
So ordered.
40
The dissenting opinion appears to be premised on a misunderstanding of the text and structure of § 1512(c). It describes § 1512(c) as containing the following type of list: “A, B, C, or otherwise D.” See Dissenting Op. at 9–10. According to the dissent, “in ordinary English usage, the verbs preceding a residual otherwise clause usually do help narrow its meaning.” Id. at 6 (emphasis in original). Moreover, the dissent notes, the interpretation of such a list should not change if it is punctuated differently, such as with semicolons: “A; B; C; or otherwise D.” Id. at 10. But the 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. Id. at 6 (“punches, kicks, bites, or otherwise injures”), 6–7, (“lions, tigers, giraffes, and other animals”), 11–12 (“drive . . . ; accelerate or decelerate . . . ; change lanes . . . ; cut off or tailgate other cars; yell, gesture, or make strange faces . . . ; or otherwise put us in danger . . . .”). Unlike the dissent’s asserted analogies, however, § 1512(c) includes both a 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.” See U.S.C § 1512(c) (“alters, destroys, mutilates, or conceals a record, document, or other object . . .; or otherwise obstructs, influences, or impedes any official proceeding”). The actual statutory structure is therefore more like the following: “Whoever does A, B, or C to lions, tigers, or giraffes; Or otherwise does X, Y, or Z to the jungle” will suffer consequences. The dissent’s insistence that § 1512(c) follows the “A, B, C, or otherwise D” pattern is puzzling, given its concession that the statute’s two subsections “do not fit neatly together,” making “any harmonization . . . textually awkward.” Dissenting Op. at 15. 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. Because the dissenting opinion interprets a statutory structure that is not before us, its reasoning is unconvincing.
W ALKER , Circuit Judge , concurring in part and concurring in the judgment:
On January 6, 2021, Joseph Fischer, Edward Lang, and Garret Miller allegedly joined in that day’s riot at the United States Capitol. They were indicted on multiple counts, includ- ing under 18 U.S.C. § 1512(c)(2) for “corruptly . . . ob- struct[ing], influenc[ing], or imped[ing]” an “official proceed- ing.” The district court dismissed those counts after conclud- ing that the Defendants’ alleged conduct is not covered by (c)(2).
That was a mistake. If proven at trial, the Defendants’ “ef- forts to stop Congress from certifying the results of the 2020 presidential election” are the kind of “obstructive conduct” pro- scribed by (c)(2). Lead Op. 8. I thus concur in the Court’s judgment and join the lead opinion’s interpretation of (c)(2)’s act element.
I do not join Section I.C.1 of the lead opinion — which
declines to decide the scope of (c)(2)’s “corrupt[ ]” mental
state — because I believe that we
must
define that 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 “breathtak-
ing” scope is a poor fit for its place as a residual clause in a
broader obstruction-of-justice statute.
See Van Buren v. United
States
,
Instead, I would give “corruptly” its long-standing mean- ing. It requires a defendant to act “with an intent to procure an unlawful benefit either for himself or for some other person.” Marinello v. United States , 138 S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting) (cleaned up). The defendant must “not only kn[ow] he was obtaining an ‘unlawful benefit,’” it must also be “his ‘objective’ or ‘purpose.’” Id. Read that way, *42 “corruptly” makes sense of (c)(2)’s place in the statutory scheme and avoids rendering it a vague and far-reaching crim- inal provision.
Those conclusions follow from five points, which I explain in the five sections below.
• The term “corruptly” has a long-established meaning at common law and in federal statutes.
• Congress often incorporates a legal term’s established meaning in new legislation, and it did so when it used “corruptly” in § 1512(c).
• The statutory scheme confirms that “corruptly” carries its long-established meaning in § 1512(c).
• That interpretation avoids vagueness and ensures that the statute does not have a breathtaking scope. • Though the meaning of “corruptly” is narrow, the in- dictments should still be upheld.
I.
“Corruptly” Has a Long-Established Meaning at Com-
mon Law and in Federal Statutes The term “corruptly” likely originated as the mental state for common-law corruption crimes like extortion and bribery. It has since been used as a mental state in federal statutes cov- ering bribery and obstruction of justice. In both its common- law and codified forms, “corruptly” has almost always required *43 proof that a defendant acted with an intent to procure an unlaw- ful benefit. [1]
A. Common Law
The corrupt state of mind has its roots in English extortion and bribery cases. The common law frequently employed the term “corruptly” to mean “an unlawful purpose, that is, as the purpose to give, take, receive, or accept, anything of value that is illegal or inappropriate.” Jeremy N. Gayed, “Corruptly”: Why Corrupt State of Mind Is An Essential Element for Hobbs Act Extortion under Color of Official Right , 78 Notre Dame L. Rev. 1731, 1748 (2003). Common-law judges looked to a de- fendant’s corrupt mental state to differentiate “between licit *44 and illicit conduct” in a way that “limited the scope of extortion and bribery in a principled manner.” Id. at 1736; see, e.g. , R v. Young & Pitts (1758) 97 Eng. Rep. 447, 450.
That was no mean feat in Tudor and Stuart England. Back then, the English legal system “lack[ed] well-defined rules about what . . . officials may take or request” from the public. Gayed, supra , at 1736. Officials were allowed to finance their own salaries by charging fees to the public. Id. at 1735-38. But they could not knowingly charge more than the customary amount. Id. So even if an official overcharged, his guilt de- pended on his state of mind. Id.
Thus, in extortion cases, courts considered whether an of- ficial had exacted an unlawful benefit — that is, a benefit to which he knew he was unentitled. Id. For example, in R v. Seymour , three justices of the peace were convicted for charg- ing ten times the customary amount for a license to run an ale- house. (1740) 87 Eng. Rep. 1305, 1306. The “extraordinary manner” of the justices’ overcharging, plus the fact that they had charged the proper rate in other instances, indicated that they had knowingly abused the “discretionary power” that was “reposed in [them] by the Legislature.” Id. ; see also R v. Wil- liams (1762) 97 Eng. Rep. 851 (officials were liable “not for the mere refus[al] to grant the licenses . . . but for the corrupt motive of such refusal; . . . because the persons applying for them would not give their votes for members of Parliament as the [officials] would have had them”).
Similarly, in bribery cases, the mere payment of a fee to an official for a benefit was not enough — the bribe payer had to know he was seeking an unlawful benefit. One striking ex- ample is R v. Vaughan (1769) 98 Eng. Rep. 308, 308-10. Vaughan wanted a Supreme Court (of Jamaica) clerkship. So he bribed the Duke of Grafton. The court noted that it was not *45 “criminal or dishonourable, to sell offices which are saleable.” Id. at 310. But Vaughan was still liable for bribery because the clerkship was under the control of the King, not the Duke. Id. So Vaughan had intended the payment “to tempt the duke to betray [the King’s] trust, by giving his advice to the King un- der . . . a corrupt motive.” Id. ; see also Gayed, supra , at 1746- 47 (discussing Vaughan ). [2]
When early state courts adopted the common law, they
shared their English cousins’ understanding that bribery and
extortion required an intent to procure an unlawful benefit. The
Supreme Court of Pennsylvania thus refused to hold an official
liable for charging concededly “illegal” fees because he lacked
“criminal intentions.”
Respublica v. Hannum
,
To sum up, the “corrupt” state of mind developed in classic
crimes of corruption, like extortion and bribery. And common-
law courts almost always treated the intent to procure an un-
lawful benefit — that is, the intent to procure a benefit which
the offender
knows
is unlawful — as a crucial part of the “clus-
ter of ideas” that defined it as a unique mental state.
See Moris-
sette v. United States
,
B. Federal Statutes
The “corrupt” state of mind eventually made its way from the common law to federal statutes. Just like the common law, those statutes almost always require proof that the defendant acted with an intent to procure an unlawful benefit.
1. Bribery Statutes
Unsurprisingly, “corruptly” appears in federal bribery stat- utes. For example, 18 U.S.C. § 201 — titled “Bribery of public officials and witnesses” — imposes penalties on anyone who *47 “corruptly gives, offers or promises anything of value to any public official . . . with intent . . . to influence any official act.” 18 U.S.C. § 201(b)(1)(A); see also 18 U.S.C. § 215(a) (crimi- nalizing “corruptly . . . promis[ing] anything of value . . . with the intent to influence” a transaction with a financial institu- tion).
Courts have interpreted “corruptly” in § 201 to require an
intent to secure an unlawful benefit. There, “corruptly” means
to act with a particular kind of “unlawful purpose” — a defend-
ant must intend that the bribe be part of a “quid pro quo.”
United States v. Tomblin
, 46 F.3d 1369, 1379-80 (5th Cir.
1995). Bribes must be “made with criminal intent that the ben-
efit be received by the official as a quid pro quo for some offi-
cial act, pattern of acts, or agreement to act favorably to the
donor when necessary.”
United States v. Head
,
In other words, the unlawful purpose required under § 201 is an intent to obtain an illegal benefit. A bribe payer must intend to secure a benefit from the bribe taker and vice versa.
2. Obstruction-of-Justice Statutes “Corruptly” is also used as a mental state in federal ob- struction-of-justice statutes.
In some obstruction statutes, courts have interpreted “cor-
ruptly” to expressly require an intent to procure an unlawful
benefit. For example, 26 U.S.C. § 7212(a) imposes penalties
on anyone who “corruptly” obstructs the administration of the
*48
Internal Revenue Code. There is “a consensus among the
courts of appeals that ‘corruptly,’ as used in section 7212(a),
means acting with an intent to procure an unlawful benefit ei-
ther for the actor or for some other person.”
United States v.
Floyd
,
In other obstruction statutes, the connection between “cor-
ruptly” and the defendant’s intent to procure an unlawful ben-
efit is implicit. Take 18 U.S.C. § 1503, which imposes penal-
ties on anyone who “corruptly” obstructs a federal juror or ju-
dicial officer. 18 U.S.C. § 1503(a). Courts have interpreted
“corruptly” there to mean an “improper purpose” — with no
mention of an intent to secure an unlawful benefit.
See, e.g.
,
United States v. Fasolino
, 586 F.2d 939, 941 (2d Cir. 1978)
(cleaned up);
United States v. Haas
,
But that is because all violators of § 1503 are nearly guar- anteed to gain an unlawful benefit. An attempt to obstruct a juror is almost always an attempt to secure a favorable verdict. 18 U.S.C. § 1503. So there is no need, in § 1503, to expressly require proof of an intent to secure an unlawful benefit. A gen- eral improper purpose is enough.
Justice Scalia said as much in United States v. Aguilar , 515 U.S. 593, 616-17 (1995) (Scalia, J., concurring). Though he recognized that “corruptly” historically “denotes an act done with an intent to give some advantage inconsistent with official *49 duty,” he noted that under § 1503 “[a]cts specifically intended to influence, obstruct, or impede, the due administration of jus- tice . . . are necessarily corrupt.” Id. (cleaned up).
Judge Silberman made the same point when he interpreted the word “corruptly” in a closely related provision, 18 U.S.C. § 1505. United States v. North , 910 F.2d 843, 939-46 (D.C. Cir. 1990) (Silberman, J., concurring in part). He stopped short of accusing other courts of erring when they defined “cor- ruptly” to mean an “intent to obstruct,” but only because “those opinions . . . express the view that any endeavor to obstruct a judicial proceeding is inherently . . . corrupt.” Id. at 940-41. To avoid confusion, he would have defined “corruptly” to re- quire inquiry into “whether the defendant was attempting to se- cure some advantage for himself or for others that was im- proper.” Id. at 944. [4]
But when an obstruction provision sweeps up a broad range of conduct, it is problematic to leave implicit the long- established requirement that a defendant acts “corruptly” only when he seeks to secure an unlawful benefit.
That explains why courts have interpreted “corruptly” in
26 U.S.C. § 7212(a) — the tax obstruction statute — to ex-
pressly require an intent to procure an unlawful benefit. For
example, in
United States v. Reeves
, the Fifth Circuit refused
to interpret “corruptly” in § 7212(a) to require only an “im-
proper motive,” as it did in § 1503.
The lesson from the obstruction-of-justice caselaw is clear.
Either explicitly or implicitly, “corruptly” requires an intent to
procure an unlawful benefit. And the more conduct an obstruc-
tion statute reaches, the more vigilantly we must apply the
long-established (and relatively narrow) meaning of “cor-
ruptly.” Otherwise we risk giving criminal provisions an im-
plausibly broad scope, and we reduce “corruptly” to a synonym
for another established mental state — “willfully.”
See Mari-
nello
,
II.
Congress Incorporated the Established Meaning of “Cor-
ruptly” in § 1512(c)
That brings us back to the statute at issue in this case: 18
U.S.C. § 1512(c)(2). Recall that it penalizes a person who
“
corruptly
. . . obstructs, influences, or impedes any official
proceeding.” 18 U.S.C. § 1512(c)(2) (emphasis added). Our
task is to interpret the words of the statute, including “cor-
ruptly,” “consistent with their ordinary meaning at the time
Congress enacted the statute.”
See Wisconsin Central Ltd. v.
United States
,
Here, the long-established meaning of “corruptly” at com- mon law and in federal statutes makes our task easier. It is a “cardinal rule” of statutory interpretation that when “Congress borrows terms of art” with a meaning elucidated during “cen- turies of practice,” it adopts the “cluster of ideas that were at- tached to each borrowed word.” Molzof v. United States , 502 U.S. 301, 307 (1992) (quoting Morissette v. United States , 342 U.S. 246, 263 (1952)).
That rule has force where, as here, “Congress used an un-
usual term [with] a long regulatory history in [a particular] con-
text.”
George v. McDonough
,
From Tudor England to state courts to federal statutes, “cor-
ruptly” has almost always referred to a criminal intent to pro-
cure an unlawful benefit. Its “history . . . resolves any ambigu-
ity” about its meaning.
Hall v. Hall
,
True, that interpretation is narrower than the colloquial
meaning of “corruptly” in other contexts.
See
Lead Op. 17.
But “[s]tatutory language need not be colloquial.”
United
States v. Aguilar
,
If Congress had wanted to disavow the “old soil” attached to the term “corruptly,” it could have. Id. In fact, it expressly assigned an unusually broad definition to “corruptly” for *53 § 1505. See 18 U.S.C. § 1515(b) (defining “corruptly . . . [a]s used in section 1505”). But it has not done so for § 1512(c). [7]
Thus, “corruptly” in § 1512(c) means to act “with an intent to procure an unlawful benefit either for [oneself] or for some other person.” Marinello v. United States , 138 S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting) (cleaned up). It “requires proof that the defendant not only knew he was obtaining an ‘unlawful benefit’ but that his ‘objective’ or ‘purpose’ was to obtain that unlawful benefit.” Id. And that benefit may be un- lawful either because the benefit itself is not allowed by law, or because it was obtained by unlawful means. Id.
III.
The Statutory Scheme Confirms that Congress Intended
“Corruptly” to Have Its Established Meaning
The “words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
West Virginia v. EPA
,
Start with the structure of § 1512. Titled “[t]ampering with a witness, victim, or an informant,” it lists obstruction of- fenses of varying seriousness. Subsection (a) prohibits killing or otherwise using physical force with the intent to prevent *54 attendance at an official proceeding. Subsection (b) criminal- izes “knowingly us[ing] intimidation, threat[s], or corrupt[ ] persuas[ion]” to “influence, delay, or prevent” testimony at an official proceeding. And subsection (d) penalizes intentional harassment to dissuade attendance or testimony at an official proceeding.
Subsection (c) was a late-game addition to the statute.
Congress enacted it to strengthen existing obstruction-of-jus-
tice laws in the wake of the Enron accounting-fraud scandal.
See Yates v. United States
,
Subsection (c)(2)’s inconspicuous place within the statu-
tory scheme suggests that it is an odd place for Congress to hide
a far-reaching criminal provision.
See Whitman v. American
Trucking Associations, Inc.
,
By contrast, giving “corruptly” its long-standing meaning addresses those concerns. Subsection (c)(2) is not an elephant in a mousehole because it is no elephant. Cf. Whitman , 531 U.S. at 468 (“Congress . . . does not . . . hide elephants in mouseholes.”). Even though (c)(2) has a broad act
15
element — there are many ways to obstruct, influence, or im- pede an official proceeding — its mental state keeps it in check: A defendant is liable only if he intends to procure an unlawful benefit.
The need for a defendant to intend to procure an unlawful benefit means that § 1512(c)(2) will not cover the “large swaths of advocacy, lobbying and protest” that it otherwise might. Cf. Dissenting Op. 33. A defendant must intend to obtain a benefit that he knows is unlawful. See Marinello v. United States , 138 S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting). Thus, some- one who believes that picketing outside of a Justice’s home is a legitimate form of protest may be guilty of a crime. See U.S.C. § 1507. But even if the protester intended to influence the Justice’s vote in an upcoming case, he would not be guilty of “corruptly . . . influenc[ing] . . . an official proceeding” un- less he knew that his picket was unlawful. 18 U.S.C § 1512(c)(2).
To illustrate how “corruptly” limits the reach of § 1512(c)(2), consider how it might apply to a hypothetical ri- oter on January 6th. This rioter joined the throng outside Con- gress because he was angry at the nation’s elites. He saw the riot as an opportunity to display his bravado. Though likely guilty of other crimes, he did not act “corruptly” under (c)(2) because he did not intend to procure a benefit by obstructing the Electoral College vote count. That rioter may not be repre- sentative of most rioters on January 6th. But in every case, the Government will need to prove at trial whether each defendant acted “corruptly” in a way that my hypothetical rioter did not.
Plus, the long-established definition of “corruptly” does
more than just narrow (c)(2)’s reach. It also helps make sense
of its place as a residual clause within an obstruction-of-justice
statute. Obstruction provisions generally deal with activities
*56
that secure an unlawful advantage.
United States v. Aguilar
,
515 U.S. 593, 616-17 (1995) (Scalia, J., concurring);
United
States v. Reeves
,
That reading of “corruptly” also reduces the degree of
overlap between (c)(2) and other provisions within § 1512.
See
Miller
,
The dissent has a different approach to addressing the
structural issues raised by a broad interpretation of
§ 1512(c)(2). Rather than focusing on (c)(2)’s mental state, the
dissent’s solution is to confine the act element “to conduct that
*57
impairs the integrity or availability of evidence.” Dissenting
Op. 38. Unlike the district court, which said (c)(2) just covers
physical evidence, the dissent seems to acknowledge that im-
pairment of any evidence could suffice, including witness tes-
timony.
Compare Miller
,
With respect, I disagree. The dissent’s reading of § 1512(c)(2) runs into many of the same surplusage problems that it accuses the lead opinion’s interpretation of creating.
Start with § 1512(c). On the dissent’s reading, (c)(1) is surplusage. That’s because the dissent’s interpretation of (c)(2)’s act element covers the conduct prohibited by (c)(1): “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object.” 18 U.S.C.§ 1512(c)(1).
Next zoom out and consider the rest of § 1512. Again, the dissent’s reading creates significant surplusage. Because its in- terpretation of (c)(2) covers “conduct that impairs the integrity or availability of evidence,” Dissenting Op. 38, it sweeps up the same conduct prohibited by the following provisions:
• Subsections 1512(a)(1)(A) and (a)(1)(B), which pro- hibit killing a person “with intent to . . . prevent the at- tendance or testimony of any person . . . [or] prevent the production of a record, document, or other object, in an official proceeding.”
• Subsection 1512(b)(1), which criminalizes “us[ing] in- timidation, threat[s], or corruptly persuad[ing] another person, with intent to . . . influence, delay, or prevent the testimony of any person in an official proceeding.” *58 • Subsection 1512(d)(1), which penalizes “intentionally harass[ing] another person and thereby hinder[ing] . . . any person from . . . attending or testifying in an official proceeding.”
That overlap creates odd outcomes. For instance, on the dissent’s reading, anyone convicted of harassing and hindering a witness under (d)(1) could also be convicted under (c)(2) — despite the 17-year sentencing disparity between the two. Compare 18 U.S.C. § 1512(c) (“not more than 20 years”) with § 1512(d) (“not more than 3 years”).
By contrast, my narrow reading of (c)(2)’s mental state
avoids some of the overlap with those provisions. Unlike
(c)(2), those provisions all require a type of specific intent. 18
U.S.C. § 1512(a)(1) (intent to obstruct), (a)(2) (same), (b)
(knowingly using intimidation with intent to obstruct), (d) (in-
tent). By contrast, (c)(2) requires a defendant to act “cor-
ruptly” — a much narrower mental state than “intent” or
“knowledge.”
See North
,
True, my definition of “corruptly” does not avoid surplus-
age entirely. As the dissent notes, failing to limit § 1512(c)’s
act element to evidence impairment would render parts of
§ 1503 (corruptly influencing or injuring a juror or court of-
ficer) and § 1505 (corruptly obstructing proceedings pending
before Congress or executive agencies) superfluous. Dissent-
ing Op. 20. But again, a degree of “redundancy” is common in
the criminal law.
Marinello
,
Though no interpretation of § 1512(c) fixes every struc- tural issue, the long-еstablished definition of “corruptly” fixes many of the surplusage issues within § 1512. The dissent’s in- terpretation of (c)(2)’s act element does not. [8]
IV.
That Interpretation Avoids Vagueness and Ensures That
§ 1512(c)(2) Does Not Have a Breathtaking Scope An innovatively broad definition of “corruptly” could raise serious concerns that § 1512(c)(2) is a vague provision with a breathtaking scope. For instance, if “corruptly” requires proof only that a defendant acted with a “wrongful purpose,” then (c)(2) might criminalize many lawful attempts to “influence[ ]” congressional proceedings — protests or lobbying, for exam- ple. Appellees’ Br. 34 (quoting § 1512(c)(2)).
Reading “corruptly” to require more than a “wrongful pur-
pose” avoids that problem. A lobbyist who persuades a con-
gressman to ask hard questions at a committee hearing has in-
fluenced the proceeding, but he has not sought to gain an
un-
lawful
benefit.
Cf. United States v. North
,
Finally, reading “corruptly” to impose a stringent mental state heeds the “unmistakable” message from the Supreme Court that “[c]ourts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.” United States v. Dubin , 27 F.4th 1021, 1041 (5th Cir. 2022) (Costa, J., dissenting) (quoting Van Buren v. United States , 141 S. Ct. 1648, 1661 (2021)). “In the last decade, it has become nearly an annual event for the Court to give this instruction.” Id. [9] We should not make the Court repeat itself by refusing to give “corruptly” its narrow, long-established meaning here.
V.
The Indictments Should be Upheld Even under the proper, narrow reading of “corruptly,” the indictments should be upheld. Each contains “the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). That’s because they allege that the Defendants *61 “corruptly obstruct[ed], influence[d], and impede[d] an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” JA 444 (Fischer); see also JA 55 (Lang); JA 85-86 (Miller).
Of course, the Government must prove its allegations at trial. It must show that the Defendants “corruptly” obstructed the certification of the Electoral College vote. That is not out- side the realm of possibility. For example, it might be enough for the Government to prove that a defendant used illegal means (like assaulting police officers) with the intent to pro- cure a benefit (the presidency) for another person (Donald Trump).
* * *
When used as a criminal mental state, “corruptly” is a term
of art that requires a defendant to act with “an intent to procure
an unlawful benefit either for himself or for some other per-
son.”
Marinello v. United States
,
Beсause I read “corruptly” as courts have read it for hun- dreds of years — and only because I read it that way — I concur in the Court’s judgment. [10]
I also join all but Section I.C.1 and footnote 8 of the lead opinion.
elsewhere that it “takes no position on the exact meaning of ‘cor- ruptly,’” it must take some position on it. Lead Op. 21 n.5. Without taking a position, the lead opinion could not conclude, as it does, that the indictments should be upheld.
Put differently, if a defendant is guilty under my approach, he will be guilty under the lead opinion’s. But some of the defendants guilty under the lead opinion’s approach will not be guilty under my ap- proach. Mine is the “position taken” by the panel member “who con- curred in the judgment[ ] on the narrowest grounds.” Marks , 430 U.S. at 193.
That is not to say that a future panel will apply Marks to this deci- sion. I express no opinion about whether it should. Cf. Richard M. Re, Beyond the Marks Rule , 132 Harv. L. Rev. 1942, 1944 (2019) (“the Marks rule has generated considerable confusion”). But a fu- ture panel will need some rule to decide the holding of today’s frac- tured decision, and the Marks rule would be an unsurprising choice. Id. (“‘the Marks rule’ . . . has been used with increasing regularity”).
One last thing. To the extent it matters — and it doesn’t matter under Marks — the lead opinion and the dissent do not agree about (c)(2)’s mental state. Cf. Marks , 430 U.S. at 193 (looking to the opinions of only those Justices “who concurred in the judgments on the narrowest grounds”). Rather, the dissent expressly rejects the lead opinion’s approach to “corruptly,” suggesting that it raises “vagueness and overbreadth concerns.” See Dissenting Op. 33.
K ATSAS , Circuit Judge , dissenting: This appeal turns on how the two subsections of 18 U.S.C. § 1512(c) interact with one another. The first subsection addresses the preservation of physical evidence, by imposing criminal penalties on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” with an intent “to impair the object’s integrity or availability for use in an official proceeding.” Id. § 1512(c)(1). The second subsection is broader and less precise, imposing the same penalties on anyone who, acting corruptly, “otherwise obstructs, influences, or impedes any official proceeding.” Id. § 1512(c)(2). The question presented is whether the second subsection applies to obstruction that bears no relationship to the specific acts of spoliation covered by the first subsection.
The government reads section 1512(c) as reaching all acts that corruptly obstruct or influence an official proceeding. In its view, the catchall otherwise clause alone determines the scope of the provision, and the preceding examples do nothing to narrow it: If a person corruptly obstructs an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object, the first subsection applies. And if a person corruptly obstructs an official proceeding in any other way, the second subsection applies. Section 1512(c) thus reduces to a single provision criminalizing any act that corruptly obstructs an official proceeding.
In my view, the government’s interpretation is mistaken. For one thing, it dubiously reads otherwise to mean “in a manner different from,” rather than “in a manner similar to.” For another, it reads the catch-all provision in subsection (c)(2) to render ineffective the longer, more grammatically complex list of examples in subsection (c)(1), which is inconsistent with normal linguistic usage and with several canons reflecting it. The government’s reading is also hard to reconcile with the structure and history of section 1512, and with decades of precedent aрplying section 1512(c) only to acts that affect the *65 integrity or availability of evidence. Moreover, the government’s reading makes section 1512(c) implausibly broad and unconstitutional in a significant number of its applications. Finally, if all of that were not enough, these various considerations make the question presented at least close enough to trigger the rule of lenity.
Because my colleagues reject an evidence-focused interpretation of section 1512(c) and instead adopt the government’s all-encompassing reading, I respectfully dissent.
I
Joseph Fischer, Edward Lang, and Garret Miller allegedly participated in the riot at the United States Capitol on January 6, 2021, including by assaulting police officers. Such conduct would violate many criminal statutes. Among other offenses, the government charged Fischer, Lang, and Miller with assaulting federal officers, causing civil disorder, entering a restricted building, and demonstrating inside the Capitol.
The government also charged them with obstructing an official proceeding in violation of section 1512(c)(2). It argued that section 1512(c) “comprehensively” prohibits the obstruction of official proceedings, regardless of whether the obstruction has any connection to the spoliation of evidence. Gov’t Response to Defendants’ Joint Supp. Br., United States v. Miller , No. 21-cr-119 (D.D.C.), ECF Doc. 63-1 at 6. On this account, because the defendants wrongfully obstructed the proceeding to certify the vote of the Electoral College for President, they violated the provision.
The district court dismissed the section 1512(c) counts. It reasoned that subsection (c)(2) could be read either as prohibiting any act that obstructs an official proceeding or as a residual clause reaching only obstructive acts similar to the *66 ones covered by subsection (c)(1). See United States v. Miller , 589 F. Supp. 3d 60, 67–72 (D.D.C. 2022). In choosing the latter reading, the court explained that the former one would make superfluous both subsection (c)(1) and the word otherwise . Id. at 70. The court also concluded that the structure and historical development of section 1512 support a narrower reading, as does the rule of lenity. Id. at 66, 72–76.
The government appealed the dismissal. We have
jurisdiction under 18 U.S.C. § 3731. The operative question is
whether the government’s allegations, if proven, would permit
a jury to find that the defendants violated section 1512(c).
See
United States v. Sampson
,
II
Section 1512(c) provides:
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.
Subsection (c)(2) consists of four elements. First are its actus rei verbs—the defendant must obstruct , influence , or impede . Second is the adverb otherwise , which qualifies the verbs by indicating some relationship between the covered *67 obstruction and the acts prohibited by subsection (c)(1). Third is the direct object—the defendant must obstruct an official proceeding . Fourth is a mens rea requirement—in obstructing an official proceeding, the defendant must act corruptly .
The question presented involves the
actus reus
—what
counts as otherwise obstructing, influencing, or impeding an
official proceeding. The literal meaning of the verbs is
undisputed: They are strikingly broad, sweeping in anything
that “hinders,” “affects the condition of,” or “has an effect on”
a proceeding.
See Marinello v. United States
,
In the analysis that follows, I will first show that the word introduces a critical ambiguity about how subsections (c)(1) and (c)(2) relate to each other. Then, I will explain why the ambiguity is best resolved in favor of the defendants’ evidence- focused interpretation. Of course, these inquiries overlap considerably; the analysis of whether a proposed interpretation is at least reasonable (which would make it not unambiguously wrong) parallels the analysis of whether the interpretation is correct. But because my colleagues place so much weight on a contention that subsection (c)(2) unambiguously compels the government’s interpretation, I will separately consider the threshold question of ambiguity.
III
A
“In determining the meaning of a statutory provision, we
look first to its language, giving the words used their ordinary
meaning.”
Lawson v. FMR LLC
, 571 U.S. 429, 440 (2014)
(cleaned up). Yet we do not divorce isolated words and phrases
from their statutory context. Rather, “[c]ontext is a primary
determinant of meaning.” A. Scalia & B. Garner,
Reading
Law: The Interpretation of Legal Texts
167 (2012);
see United
States v. Briggs
,
Despite the centrality of this whole-text canon, the government urges us to consider nothing outside the four corners of subsection (c)(2)—not the text of subsection (c)(1); not the text of section 1512; and not the text of chapter 73 of Title 18, which sets forth obstruction-of-justice offenses including section 1512. According to the government, otherwise unambiguously means “in a different way” or “in another manner.” Otherwise , Black’s Law Dictionary (11th ed. 2019). So subsection (c)(1) prohibits acts that obstruct an official proceeding by impairing the integrity or availability of *69 physical evidence, and subsection (c)(2) prohibits acts that obstruct an official proceeding in any other manner. In other words, section 1512(c) covers all acts that obstruct an official proceeding. And the enumeration of specific obstructive acts in subsection (c)(1) creates a housekeeping question whether any individual act may be charged under subsection (c)(1) or (c)(2). But the enumeration does nothing to restrict the overall scope of section 1512(c) and its 20-year authorized sentence.
This argument has a neat reductionist logic. It can be generalized as follows: an expression of the form “ A , B , C , or otherwise D ”—where A , B , and C are examples of D —is equivalent to “ D ” because the word “otherwise” picks up every instance of D not already captured by A , B , or C . And so, according to the government, section 1512(c) unambiguously reduces to the words that follow otherwise . In this case, because the defendants obstructed an official proceeding, section 1512(c) applies. QED .
This logic oversimplifies. It misses the point that, in ordinary English usage, the verbs preceding a residual otherwise clause usually do help narrow its meaning. For example, if a rule punished anyone who “punches, kicks, bites, or otherwise injures” someone else, you would recognize that the examples involve physical injury, and you would understand that the residual term likewise involves a physical injury. Further, you would do so even though the dictionary defines the word injure to include reputational, financial, and emotional injuries. Or consider a residual clause introduced by the adjectival form other . If I claimed to love “lions, tigers, giraffes, and other animals,” you would recognize that the examples all involve large game. You would thus understand that “animals” likely includes elephants, may include dogs, and likely excludes mice. You would certainly not think that “animals” unambiguously includes mice. And you would *70 deduce all this even though dictionary definitions of “animal” would be no help in distinguishing among elephants, dogs, and mice. In short, you would understand that what follows a residual “other” or “otherwise” clause is likely similar (though not identical) to the examples that precede it.
As these examples show, reducing a phrase of the form “
A
,
B
,
C
, or otherwise
D
” to “
D
” will likely expand its meaning. If
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. Nobody refers to “letters that are P, S, X,
or otherwise in the English alphabet,” because we do not need
clarifying examples to understand which letters are in the
English alphabet. So, when speakers use a phrase like “
A
,
B
,
C
, or otherwise
D
,” there is good reason to think that
D
is either
ambiguous (as in the “injures” example above) or likely to be
interpreted too broadly if not clarified by examples (as in the
case of my favorite “animals”). And this point about ordinary
usage is a
textual
one, for the goal of textualism is not to
explore the definitional possibilities for isolated words, but to
assess how “an ordinary speaker of English” would understand
the phrases that Congress has strung together.
Comcast Corp.
v. Nat’l Ass’n of African Am.-Owned Media
,
Not surprisingly, these linguistic points coincide with
several semantic canons of construction, which track how
speakers normally use English. I will have more to say about
the canons below, but for now here are three of them: First, the
canon against surplusage is a “cardinal principle of statutory
construction” that “we must give effect, if possible, to every
*71
clause and word of a statute.”
Williams v. Taylor
, 529 U.S.
362, 404 (2000) (cleaned up). Thus, if Congress uses a
formulation like “
A
,
B
,
C
, or otherwise
D
,” we should be
reluctant to simplify the phrase to “
D
,” which would read out
of the statute the examples plus the word
otherwise
. Second
and third are the related canons of
ejusdem generis
and
noscitur
a sociis
.
Ejusdem generis
provides that “where general words
follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words.”
Wash. State Dep’t of Soc. & Health Servs. v. Guardianship
Estate of Keffeler
,
B
The Supreme Court has embraced this understanding of how a residual otherwise phrase should be interpreted. In Begay v. United States , 553 U.S. 137 (2008), the Court considered what constitutes a “violent felony” under the Armed Career Criminal Act (ACCA). The operative definition extends to any crime that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The question presented was whether a DUI offense falls within the residual otherwise clause. Answering no, the Court expressed no doubt that drunk driving “presents a serious potential risk of physical injury to another,” at least as those words are commonly understood. *72 But it held that the residual clause “covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’” 553 U.S. at 142. The Court explained that “to give effect to every clause and word of th[e] statute, we should read the examples as limiting the crimes that [the residual clause] covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” Id. at 143 (cleaned up). For if Congress “meant the statute to be all encompassing, it is hard to see why it would have needed to include the examples at all.” Id. at 142.
The Court specifically rejected the government’s understanding of otherwise . There as here, the government argued that because the dictionary defines it to mean “in a different manner,” the residual clause must sweep in all conduct that satisfies its literal terms, regardless of the preceding statutory context. Brief for the United States at 25– 26, Begay v. United States , No. 06-11543 (U.S.). Disagreeing, the Court explained that “the word ‘otherwise’ can (we do not say must ) refer to a crime that is similar to the listed examples in some respects but different in others—similar, say, in respect to the degree of risk it produces, but different in respect to the ‘way or manner’ in which it produces that risk.” 553 U.S. at 144 (cleaned up). In other words, as used to introduce a residual clause following a list of examples, an otherwise clause is not unambiguously all-encompassing. It can connote not only difference but also a degree of similarity, particularly where necessary to avoid reducing the examples to surplusage.
C
My colleagues do not dispute that these principles guide our interpretation of a phrase with the general form “ A , B , C , or otherwise D .” Instead, they argue that section 1512(c)(2) *73 does not take that form. They offer two distinctions, but one is immaterial and the other cuts against their position.
First, my colleagues note that ACCA and section 1512(c) are composed differently: The ACCA definition at issue in Begay involved “a single, unbroken sentence within the same paragraph,” whereas section 1512(c) uses “a separately numbered subparagraph, after a semicolon and line break.” Ante at 28 . But the relationship created by the word otherwise does not depend on punctuation or line breaks. Rather, as explained above, it flows from the connotation of similarity, the intuition that speakers do not deliberately waste words, and the need to give effect to every clause of a statute. Thus, every claim made above about the phrase “ A , B , C , or otherwise D ” applies no less to the list
(1) A ;
(2) B ;
(3) C ; or
(4) otherwise D.
Other decisions reinforce the primacy of text over punctuation or line breaks. In United States v. O’Brien , 560 U.S. 218 (2010), the Court held that Congress, by moving part of a statutory paragraph into a separate subparagraph, did not transform the shifted text from an offense element into a sentencing factor. The Court reasoned that a “more logical explanation for the restructuring” was simply to break up the paragraph “into a more readable statute,” as recommended by modern legislative drafting guidelines. Id. at 233–34. The cited guidelines suggest that text be broken into subsections and subparagraphs “[t]o the maximum extent practicable.” House Legislative Counsel’s Manual on Drafting Style, HLC No. 104.1, § 312 at 24 (1995); see Senate Office of the Legislative Counsel, Legislative Drafting Manual § 112 at 9– *74 11 (1997). O’Brien thus confirms that we should not elevate Congress’s drafting style—especially a choice to divide statutes into smaller subdivisions—over the text it enacted. [1]
Second, the lead opinion invokes the “complicated” structure of section 1512(c). To begin, it notes the length and grammatical complexity of the examples preceding the word otherwise . Ante аt 40 n.8. But it draws the wrong inference from this complexity. The long, reticulated list of examples in subsection (c)(1) makes it even more implausible that subsection (c)(2) would render them meaningless.
Consider another pair of hypotheticals. Suppose a companion and I are setting off to a mountaineering adventure. If my partner says, “Please don’t drive too fast or otherwise put us in danger during this trip,” I will have difficulty discerning whether “otherwise put us in danger” is meant to be all- encompassing ( i.e. , covering both driving and mountaineering hazards) or limited to dangerous driving besides speeding. But suppose my partner says: “Please don’t drive too fast; accelerate or decelerate suddenly and without warning; change lanes without signaling; cut off or tailgate other cars; yell, gesture, or make strange faces at other drivers or their passengers; or otherwise put us in danger during this trip.” In that case, I will have no doubt that the otherwise clause refers *75 only to driving hazards. The reason is plain: A speaker would not waste time and effort enumerating a reticulated list only to render it meaningless with a catchall that subsumes and is not delimited by the list. The longer and more complex the list of examples preceding the word otherwise , the stronger the case for giving the residual clause a contextual rather than all- encompassing interpretation.
The lead opinion further invokes the complexity of the words following otherwise . It conjures up this clause: “Whoever does A, B, or C to lions, tigers, or giraffes; Or otherwise does X, Y, or Z to the jungle.” Ante at 40 n.8. It sounds strange because the actions one might take against lions, tigers, or giraffes are so different from the actions one might take against a jungle. It is thus hard to think of the words preceding “otherwise” as setting forth examples of what follows. Precisely because “otherwise” cannot bear its usual connotation of “different from but similar to,” the entire sentence sounds off. Section 1512(c) is not composed like that: Match any of the four verbs in subsection (c)(1) ( alter , destroy , mutilate , or conceal ) with any of its three direct objects (a record , document , or other object ) and you will come up with a paradigmatic example of obstructing, influencing, or impeding an official proceeding. In other words, despite the grammatical complexity of the words preceding and following otherwise , it is easy to recognize the preceding words as setting forth examples of what follows. And that makes section 1512(c) much closer to my stylized “ A , B , C , or otherwise D ” formulation—and to the actual ACCA text construed by the Supreme Court in Begay —than it is to the exceedingly odd clause formulated by the lead opinion. [2]
D
How do these general principles apply to section 1512(c)? Without the line break, its actus reus covers anyone who “(1) alters, destroys, mutilates, or conceals a record, document, or other object, … 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.” The parties and the district court have proposed three different readings of subsection (c)(2), based on three different inferences about the relevant similarity through which otherwise connects the two subsections.
As noted above, the government reads otherwise to mean “in any other way.” On this view, the only relevant similarity between the two subsections is that both address obstructing, influencing, or impeding an official proceeding. Thus, subsection (c)(1) does not operate to narrow subsection (c)(2), which effectively swallows up subsection (c)(1).
In contrast, the district court and the defendants read
otherwise
to require some further similarity betwеen the
obstruction covered by subsection (c)(2) and the specific acts
covered by subsection (c)(1). But what is the relevant criterion
of similarity? The district court read section 1512(c) as focused
on the preservation of
physical evidence
, consistent with the
string of nouns (“record, document, or other object”) in
subsection (c)(1). It therefore held that subsection (c)(2)
requires the defendant to have “taken some action with respect
to a document, record, or other object in order to corruptly
preceding example.
Collazos v. United States
,
For their part, the defendants read section 1512(c) as focused on the development and preservation of evidence , consistent with the spoliation addressed in subsection (c)(1) and with the broader tampering and obstruction provisions that appear throughout section 1512 and chapter 73. The defendants invoke the views of a distinguished commentator who summarized obstruction law this way:
[O]bstruction laws do not criminalize just any act that can influence a “proceeding.” Rather they are concerned with acts intended to have a particular kind of impact. A “proceeding” is a formalized process for finding the truth. In general, obstruction laws are meant to protect proceedings from actions designed to subvert the integrity of their truth-finding function through compromising the honesty of decision- makers ( e.g. , judge, jury) or impairing the integrity or availability of evidence—testimonial, documentary, or physical.
Memorandum from Bill Barr to Deputy Att’y Gen. Rod Rosenstein & Ass’t Att’y Gen. Steve Engel at 1 (June 8, 2018), http://perma.cc/CWX6-GAE9. For these reasons, the defendants urge limiting subsection (c)(2) to acts that impair the integrity or availability of evidence.
Which of these competing interpretations is best? That is
a hard question, for each has some difficulties. The district
court’s focus on
physical evidence
finds strong textual support
in subsection (c)(1), but risks making subsection (c)(2) into
surplusage. What acts directed at physical evidence might
obstruct, influence, or impede an official proceeding without
also altering, destroying, mutilating or concealing the evidence
*78
in order to impair its integrity or availability for use in an
official proceeding? Perhaps covering up, falsifying, or
making false entries in the evidence, as the district court noted,
see Miller
,
In fact, the two subsections do not fit neatly together, so any harmonization will be textually awkward. But the defendants win under their interpretation or that of the district court, because the indictments do not allege that they took any action affecting physical or other evidence relevant to the Electoral College certification. And for the reasons given above, it seems to me a stretch to say that the government’s interpretation is not only the best, but so much better than the others that we can declare it unambiguously correct and call it a day without completing a full-blown statutory analysis. [3]
My colleagues conclude that subsection (c)(2) is
unambiguous because its verbs sweep broadly and its
introductory word
otherwise
means “in a different manner.”
Ante
at 11. But ambiguity determinations do not end with the
precise text that is directly controlling in the case. Kavanaugh,
Fixing Statutory Interpretation
, 129 Harv. L. Rev. 2118, 2134–
38 (2016);
see Yates v. United States
,
arguable Goldilocks quality—not “because” of it, ante at 39 n.8. And my Goldilocks quip may itself be a bit too pejorative, for one can infer an evidence-based focus from the broader text and structure of section 1512.
IV
Because section 1512(c) contains ambiguity, we must use
all “traditional methods of statutory interpretation” to
determine its best meaning.
Kasten v. Saint-Gobain
Performance Plastics Corp.
,
A
As noted above, it is a “cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute.” Williams , 529 U.S. at 404 (cleaned up). The government’s reading of subsection (c)(2) would create three levels of problematic surplusage.
First, as explained above, it would collapse subsection
(c)(1) into subsection (c)(2). Yet “the canon against surplusage
is strongest when an interpretation would render superfluous
another part of the same statutory scheme.”
Marx v. Gen.
Revenue Corp.
,
The concurrence responds that my interpretation creates
the same surplusage problem because, on my view, subsection
(c)(2) still covers all the conduct prohibited by subsection
(c)(1).
Ante
at 17 (opinion of Walker, J.). Of course, the
residual term
D
in any “
A
,
B
,
C
, or otherwise
D
” formulation
covers the preceding examples. And so, under any of the three
possible interpretations of section 1512(c), subsection (c)(2)
covers the examples set forth in subsection (c)(1). But on my
view, the examples do meaningful work by narrowing the
breadth of the residual term.
See Begay
,
Second, the government’s reading also would collapse most of section 1512 into the subsection (c)(2) catchall. Section 1512 sets forth 21 different offenses, and the government’s reading would fold at least 15 of them into subsection (c)(2). Here are a few random examples: Section 1512(a)(1) prohibits killing a person to prevent his attendance at an official proceeding or to prevent the production of a record, document, or other object in an official proceeding. 18 *82 U.S.C. § 1512(a)(1)(A), (B). Section 1512(b)(1) prohibits corruptly persuading another person to influence, delay, or prevent testimony at an official proceeding. Section 1512(d)(1) prohibits harassing another person to dissuade him from attending an official proceeding. And section 1512(d)(4) prohibits harassing another person to prevent a criminal prosecution. All these acts—and the others prohibited by most other parts of section 1512—would influence or affect an official proceeding. [4]
This wholesale surplusage is even stranger given section 1512’s graduated penalty scheme. Section 1512(a) authorizes terms of imprisonment of up to 30 years for various obstructive acts involving the use of physical force, 18 U.S.C. § 1512(a)(3)(B), and up to 20 years for obstructive acts involving the threat of physical force, id. § 1512(a)(3)(C). Section 1512(b) authorizes terms of up to 20 years for obstructive acts involving intimidation. Id. § 1512(b). Section 1512(d) authorizes maximum terms of only three years for obstructive acts involving harassment. Id. § 1512(d). By collapsing most of section 1512 into its subsection (c)(2), the government’s interpretation would lump together conduct warranting up to three decades of imprisonment with conduct *83 warranting at most three years—a distinction reflected in the broader structure of section 1512.
Third, the government’s interpretation of subsection (c)(2)
would swallow up various other chapter 73 offenses outside of
section 1512. Two of the most longstanding chapter 73
offenses are sections 1503 and 1505, which trace back at least
to 1909.
See United States v. Poindexter
,
To explain all this surplusage, the lead opinion notes that section 1512(c) was enacted after the other provisions in question. As it notes, section 1512 reaches acts of direct obstruction such as a defendant destroying evidence himself, *84 as well as acts of indirect obstruction such as the defendant pressuring others to do so. Ante at 35. And unless Congress wanted to rewrite the entire statute, it could not reach direct obstruction without creating some overlap with earlier provisions reaching indirect obstruction. But the government’s interpretation does not create such massive surplusage by reaching direct as well as indirect obstruction. Instead, it does so by so dramatically broadening what counts as obstruction in the first place, sweeping in all acts that affect or hinder a proceeding (including, as explained below, such protected activities as advocacy, lobbying, and protest).
The concurrence, for its part, again claims that my interpretation creates the same degree of surplusage as the government’s. Ante at 17–18 (opinion of Walker, J.). A few illustrations rebut this assertion. Consider section 1512(d)(1), which authorizes a three-year term of imprisonment for anyone who harasses and thereby hinders any person from “attending or testifying in an official proceeding.” Someone who prevents spectators from attending a proceeding has surely influenced or affected the proceeding—and thus violated subsection (c)(2) on the government’s interpretation. But that person has not impaired the integrity or availability of evidence for use in the proceeding—and thus has not violated section 1512(c) on my interpretation. At the other end of the penalty scheme, the same point holds true for subsection (a)(1)(A), which authorizes a thirty-year sentence for attempts to kill someone to prevent the “attendance or testimony of any person in an official proceeding.” For both provisions, my interpretation yields partial overlap with subsection (c)(2), in cases involving the killing or intimidation of witnesses as opposed to spectators. On the other hand, the government’s interpretation yields complete surplusage.
Taking a step back, the concurrence is nonetheless correct that my evidence-focused interpretation of section 1512(c) creates significant overlap with other provisions of section 1512. But if that counts as a significant flaw with my position, the solution is surely not to broaden the scope of section 1512(c) to what the government suggests, and thereby significantly increase the degree of overlaр or surplusage. Instead, the solution would be to narrow the scope of section 1512(c) to what the district court suggests, which would more considerably reduce the degree of overlap or surplusage.
The concurrence seeks to reduce this substantial
surplusage problem by imposing a heightened
mens rea
requirement on section 1512(c). As the concurrence explains,
section 1512(c) requires the defendant to have acted
“corruptly,” unlike the specific-intent crimes set forth in
section 1512(a) and 1512(d).
Ante
at 18 (opinion of Walker,
J.). But the Supreme Court has explained that there is no
“meaningful difference” between acting “corruptly” and acting
with a “specific intent” to obtain some unlawful advantage.
Marinello
,
More generally, both of my colleagues note that some
degree of overlap in criminal provisions is common, no
*86
construction of section 1512(c)(2) will eliminate all surplusage,
and the canons afford no basis for preferring a construction
“substituting one instance of superfluous language for
another.”
United States v. Ali
,
B
The interpretive canons of ejusdem generis and noscitur a sociis also support a restrained interpretation of section 1512(c). As explained above, these canons reflect linguistic conventions that must factor into the initial assessment whether that provision is ambiguous. They also support resolving any ambiguity in favor of the defendants.
Begin with ejusdem generis . It “limits general terms that follow specific ones to matters similar to those specified.” CSX Transp., Inc. v. Ala. Dep’t of Revenue , 562 U.S. 277, 294 (2011) (cleaned up); see Guardianship Estate of Keffeler , 537 U.S. at 384. And it “applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics.” Scalia & Garner, supra , at 199. Here, all agree that subsection (c)(2) is a catchall phrase tacked on after the specific offenses set forth in subsection (c)(1).
Noscitur a sociis
, or the associated-words canon, provides
that “a word is given more precise content by the neighboring
*87
words with which it is associated.”
Williams
,
My colleagues argue that both canons are irrelevant because “the word ‘otherwise’ does not immediately follow a list of terms” and is in a separate subparagraph from subsection (c)(1). Ante at 29. But “a listing is not prerequisite” for applying the associated-words canon. Scalia & Garner, supra , at 197. And courts have applied ejusdem generis “to all sorts of syntactic constructions that have particularized lists followed by a broad, generic phrase.” Id. at 200. Thus, while a syntactically parallel listing—like “dogs, cats, and other animals,” see ante at 29—is one way to trigger these canons, it is far from the only way. Moreover, as explained above, we should not elevate Congress’s use of line breaks and paragraph numbering over the text it enacted. At bottom, my colleagues reason that section 1512(c)’s syntax and structure do not weave together its subsections tightly enough to justify inferring an association. But the text itself creates the association:
The ejusdem generis rule is an example of a broader linguistic rule or practice to which reference is made by the Latin tag noscitur a sociis. Words, even if they are not general words like ‘whatsoever’ or ‘otherwise’ preceded by specific words , are liable to be affected by other words with which they are associated. *88 Noscitur a Sociis , Black’s Law Dictionary (11th ed. 2019) (emphasis added) (quoting R. Cross, Statutory Interpretation 118 (1976)). Put differently, the canons confirm that syntax and structure can sometimes substitute for an association- creating word like otherwise . But here we have the word itself.
C
Beyond considerations of surplusage, the structure of section 1512 cuts further against the government’s broad reading of subsection (c)(2). As noted above, section 1512 contains 21 separate subparagraphs prohibiting various forms of tampering and obstruction. Setting aside subsection (c)(2), the 20 other provisions are all narrow, and every one of them addresses preserving the flow of truthful (and only truthful) information to investigatory or judicial processes. To break this persistent and uniform focus, one might expect some degree of clarity. Instead, we have the opposite: an otherwise connector suggesting that Congress did not intend a major discontinuity in focus or scope.
If subsection (c)(2) were all-encompassing, its placement
would also be puzzling. That provision is one subparagraph
nested inside a subsection in the middle of 19 otherwise narrow
prohibitions. It is not even its own sentence, and it shares with
subsection (c)(1) clauses prescribing a
mens rea
element and a
maximum punishment. This is exactly where we might expect
to find a residual clause for subsection (c)(1). But it is an
exceedingly unlikely place to find an all-encompassing
residual clause for most of section 1512 and much of chapter
73. Of course, Congress “does not alter the fundamental details
of a [statutory] scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in
mouseholes.”
Whitman v. Am. Trucking Ass’ns
,
Moreover, the government’s interpretation of section 1512(c) injects a significant structural anomaly into Chapter 73 because of its 20-year maximum penalty. If section 1512(c) is focused on evidence impairment, then Chapter 73 has a comprehensible scheme of penalties keyed to the seriousness and sophistication of the obstruction. For example, picketing, parading, or using a sound truck to influence a proceeding carries a one-year maximum penalty. 18 U.S.C. § 1507. Using threats or force generally carries a maximum penalty of either 5 or 10 years, depending on whether thе proceeding is before a court, an agency, or Congress. Id. §§ 1503(b), 1505. And destroying, manipulating, or falsifying evidence carries a maximum penalty of 20 years. Id. §§ 1512(c), 1519. This scheme ties the penalty to the sophistication of the obstruction and the kind of proceeding targeted. Rudimentary forms of obstruction, such as picketing, receive the lowest penalty. And the most sophisticated or pernicious forms, such as shredding documents or fabricating evidence, receive the highest. The government’s interpretation would collapse all of this, making any form of obstructing an official proceeding a 20-year felony.
Finally, consider the relevant titles, which may “supply cues” about the meaning of operative text. Yates , 574 U.S. at 540 (plurality); see Scalia & Garner, supra , at 221 (“The title and headings are permissible indicators of meaning.”). For one thing, Congress inserted the disputed text into section 1512, which is titled “Tampering with a witness, victim, or an informant.” Direct obstruction by destroying documents is one modest step removed from indirect obstruction by pressuring a witness to destroy documents. On the other hand, what the government posits is covered, including everything from lobbying to rioting, is much further removed from section 1512’s heartland as reflected in its title. Moreover, the title of the statute that enacted section 1512(c) is the Corporate Fraud Accountability Act of 2002. Document destruction readily *90 conjures up images of corporate fraud. Advocacy, lobbying, and protest do not. For that matter, neither does assaulting police officers or rioting in the Capitol.
D
Statutory history reinforces that section 1512(c) covers
only acts that impair the integrity or availability of evidence.
That provision was the first and most significant provision
enacted by the Corporate Fraud Accountability Act of 2002,
which in turn was part of the larger Sarbanes-Oxley Act. Pub.
L. 107-204, tit. XI, § 1102, 116 Stat. 745, 807. As the Supreme
Court has explained, these statutes were prompted by the Enron
Corporation’s accounting scandal and collapse, which exposed
what was perceived as a significant loophole in the law of
obstruction: “corporate document-shredding to hide evidence
of financial wrongdoing” was unlawful if one person directed
another, but not if he acted alone.
See Yates
,
The government posits that Congress plugged the loophole
with a grossly incommensurate patch. On its view, instead of
simply adding a prohibition on direct evidence impairment to
preexisting prohibitions on indirect evidence impairment,
Congress added a prohibition on obstructing or influencing
per
se
. My colleagues acknowledge the mismatch, but they find it
irrelevant because the governing text is unambiguous.
Ante
at
31. But the text is ambiguous, and this mismatch is another
reason for resolving the ambiguity in the defendants’ favor. Of
course, legislation can sweep more broadly than the primary
evil that Congress had in mind.
See Oncale v. Sundowner
Offshore Servs., Inc.
,
E
Section 1512(c)(2) has been on the books for two decades
and charged in thousands of cases—yet until the prosecutions
arising from the January 6 riot, it was uniformly treated as an
evidence-impairment crime. This settled understanding is a
“powerful indication” against the government’s novel position.
FTC v. Bunte Bros.
,
My colleagues note that only two cases have held section 1512(c)(2) requires some form of evidence impairment. Ante at 13–15, 15 n.4. But until the January 6 prosecutions, courts had no occasion to consider whether it sweeps more broadly, because all the caselaw had involved conduct plainly intended to hinder the flow of truthful evidence to a proceeding.
My colleagues claim only one counterexample,
United
States v. Reich
,
Moreover, even the cases cited by my colleagues
acknowledge that the word
otherwise
connects subsections
(c)(1) and (c)(2) and recognize the latter subsection’s focus on
evidence. For example,
United States v. Burge
,
F
The Supreme Court repeatedly has rejected “improbably
broad” interpretations of criminal statutes that would reach
significant areas of innocent or previously unregulated
conduct.
Bond
,
In the government’s view, subsection (c)(2) reaches any
act that obstructs, influences, or impedes an official
proceeding—which means anything that affects or hinders the
proceeding,
see Marinello
,
Consider a few basic examples. An activist who
successfully rails against bringing a bill to a vote on the Senate
floor has obstructed or influenced an official proceeding. (For
*94
purposes of section 1512, the proceeding “need not be pending
or about to be instituted at the time of the offense.” 18 U.S.C.
§ 1512(f)(1).) A lobbyist who successfully persuades a
member of Congress to change a vote has likewise influenced
an official proceeding. So has a peaceful protestor who,
attempting to sway votes, holds up a sign in the Senate gallery
before being escorted away. Of course, this case involves
rioting as opposed to peaceful advocacy, lobbying, or protest.
But the construction of section 1512(c) adopted by my
colleagues will sweep in all of the above. And this breadth is
especially problematic because section 1512 applies to
congressional and executive proceedings as well as judicial
ones. There is no constitutional or historical pedigree for
lobbying to influence judicial decisions in pending cases. But
advocacy, lobbying, and protest before the political branches is
political speech that the First Amendment squarely protects.
E.g.
,
Edwards v. South Carolina
,
My colleagues dismiss this concern with a promise that the statute’s one-word mens rea requirement—“corruptly”—will impose meaningful limits even if its 30-word actus reus does not. But the lead opinion does not even settle on what that requirement is, much less explain how it would cure the improbable breadth created by an all-encompassing view of the *95 actus reus . And the various possibilities that my colleagues suggest do not inspire much confidence.
First, the lead opinion cites
Arthur Andersen LLP v. United
States
, 544 U.S. 696 (2005), for the proposition that acting
corruptly
may require nothing more than an act that is
“wrongful, immoral, depraved, or evil.”
Ante
at 17. But while
Arthur Andersen
did describe those adjectives as “normally
associated” with the word
corruptly
, 544 U.S. at 705, it
nowhere suggested that this adjectival string could supply a
complete definition. Instead, it held that the jury instruction
before it was legally deficient for failing to require either
consciousness of wrongdoing or a sufficient connection
between the disputed conduct and an official proceeding.
See
id.
at 705–08. Moreover, we have held that this precise
adjectival string neither narrows nor clarifies a statutory
requirement of acting corruptly.
Poindexter
,
This problem is particularly serious given the breadth of
section 1512(c).
Arthur Andersen
involved section 1512(b),
which covers narrow categories of inherently wrongful conduct
such as preventing the testimony of a third party, causing
another person to withhold evidence, or preventing the
communication of evidence to a law enforcemеnt officer or
judge. In contrast, the
actus reus
posited here would sweep in
any conduct that influences or affects an official proceeding.
Imagine a tobacco or firearms lobbyist who persuades
Congress to stop investigating how many individuals are killed
by the product. Would the lobbyist violate section 1512(c)(2)
because his conduct was “wrongful” or “immoral” in some
abstract sense? Or what if the lobbyist believed that his work
was wrongful or immoral, but did it anyway to earn a living?
The lead opinion dismisses such hypotheticals,
ante
at 17, but
without explaining why liability would not attach under a mere
requirement of acting wrongfully. Moreover, probing the
*96
defendant’s mental state is a question of fact for the jury.
See
,
e.g.
,
North
,
Second, the lead opinion proposes that acting corruptly may mean acting with a “corrupt purpose” or through “independently corrupt means.” Ante at 18. And because the defendants here allegedly acted through the corrupt means of assaulting police officers, the lead opinion continues, we may safely move on without considering what constitutes a “corrupt purpose.” Id. The lead opinion invokes other opinions stating that the use of unlawful means is sufficient, but not necessary, to show corrupt action. See North , 910 F.2d at 942–43 (Silberman, J., dissenting in part); United States v. Sandlin , 575 F. Supp. 3d 16, 31 (D.D.C. 2021). But that only underscores the problem: If a “corrupt purpose” may suffice to show acting corruptly, what purposes count as “corrupt”? Perhaps ones that are wrongful, immoral, depraved, or evil, but that would just replicate the vagueness and overbreadth concerns noted above.
Moreover, even if independently unlawful means were necessary, section 1512(c)(2) still would cover large swaths of advocacy, lobbying, and protest. Consider a few more *97 examples. A protestor who demonstrates outside a courthouse, hoping to affect jury deliberations, has influenced an official proceeding (or attempted to do so, which carries the same penalty). So has an EPA employee who convinces a member of Congress to change his vote on pending environmental legislation. And so has the peaceful protestor in the Senate gallery. Under an unlawful-means test, all three would violate section 1512(c)(2) because each of them broke the law while advocating, lobbying, or protesting. See 18 U.S.C. § 1507 (prohibiting picketing outside a courthouse with the intent to influence a judge, juror, or witness); id. § 1913 (prohibiting lobbying by agency employees); 40 U.S.C. § 5104(e)(2)(G) (prohibiting demonstrating inside the Capitol Building). And each would face up to 20 years’ imprisonment—rather than maximum penalties of one year, a criminal fine, and six months, respectively. So while this approach would create an escape hatch for those who influence an official proceeding without committing any other crime, it also would supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies. That still gives section 1512(c)(2) an improbably broad reach, because it posits that the Corporate Fraud Accountability Act extended the harsh penalties of obstruction-of-justice law to new realms of advocacy, protest, and lobbying.
Third, the lead opinion suggests adding a further
mens rea
requirement urged by Justice Scalia in
United States v. Aguilar
,
This improper-benefit test may significantly narrow
section 1512(c)(2), but only by excluding these defendants. As
traditionally applied, the test seems to require that the
defendant seek an unlawful financial, professional, or
exculpatory advantage.
See, e.g.
,
Marinello
,
The concurrence urges a more stringent
mens rea
requiring
the defendant to
know
that he is acting unlawfully.
Ante
at 15
(opinion of Walker, J.). The concurrence relies most heavily
on three dissents. But two of them reject the concurrence’s
own proposed standard.
See Aguilar
,
The concurrence’s approach is driven by a laudable goal— narrowing what the concurrence recognizes would otherwise be the “breathtaking” and untenable scope of the government’s interpretation of section 1512(c). Ante at 1, 3 n.1, 14–15, 22 n.10 (opinion of Walker, J.). But even with the concurrence’s torqued-up mens rea , sectiоn 1512(c)(2) still would have improbable breadth. It would continue to supercharge comparatively minor advocacy, lobbying, and protest offenses into 20-year felonies, provided the defendant knows he is acting unlawfully in some small way. The concurrence imagines a protestor unaware that federal law prohibits picketing outside the home of a judge to influence his or her votes. 18 U.S.C. § 1507. But even that hypothetical protestor would be protected only until the jurist, a neighbor, or the *100 police told the protestor what the law is. After that, the concurrence’s position would expose the protestor not only to the one-year sentence set forth in section 1507, but also to the twenty-year sentence set forth in section 1512(c).
Finally, my colleagues’ approach creates vagueness problems as well as First Amendment ones. Consider 18 U.S.C. § 1505, which imposes criminal penalties on anyone who “corruptly … influences, obstructs, or impedes” a congressional inquiry. In Poindexter , we held this provision unconstitutionally vague as applied to acts of lying to Congress. 951 F.2d at 379. In rejecting the government’s argument that the mens rea requirement sufficiently narrowed the statute, we explained that “on its face, the word ‘corruptly’ is vague,” id. at 378, as were the string of adjectival synonyms. See id. at 379 (“Words like ‘depraved,’ ‘evil,’ ‘immoral,’ ‘wicked,’ and ‘improper’ are no more specific—indeed they may be less specific—than ‘corrupt.’”). To cure the vagueness, we limited the act component of section 1505. Specifically, we held that it applies only to acts causing a third party to violate some legal duty, thus excluding acts by which the defendant directly attempts to influence the proceeding. Id. at 379–86. But this saving construction is not available here. As explained earlier, one thing section 1512(c) clearly did is break down the distinction between direct and indirect obstruction. So, if subsection (c)(2) covers all obstructive acts, direct and indirect, it has the same breadth that caused the Poindexter court to find unconstitutional vagueness. And as with the First Amendment objection, it is no answer to say that section 1512(c) may be constitutionally applied to the extreme conduct alleged here. That is true, but the government’s construction still creates improbable breadth and a host of unconstitutional applications in other cases, even with the requirement of acting “corruptly.”
In sum, there is no plausible account of how section 1512(c)(2) could sweep in these defendants yet provide “significant guardrails” through its requirement of acting “corruptly,” ante at 16. Rather than try to extract meaningful limits out of that broad and vague adverb, we should have acknowledged that Congress limited the actus reus to conduct that impairs the integrity or availability of evidence.
G
If there were any remaining doubt, the rule of lenity would
resolve this case for the defendants. At a high level of
generality, the rule has provoked recent controversy. Some
justices think it applies “[w]here the traditional tools of
statutory interpretation yield no clear answer.”
Wooden v.
United States
,
In the specific context of obstruction of justice, the
Supreme Court repeatedly has emphasized the need for
caution. For example,
Yates
involved another Sarbanes-Oxley
provision that prohibits knowingly concealing or making a
false entry in any record, document, or tangible object. 18
U.S.C. § 1519. The Court refused to construe the provision as
“an all-encompassing ban on the spoliation of evidence,”
citing, among other factors, its “position within Chapter 73 of
Title 18.”
V
The conduct alleged here violates many criminal statutes, but section 1512(c) is not among them. Because my colleagues conclude otherwise, I respectfully dissent.
Appendix — 18 U.S.C. § 1512 § 1512. Tampering with a witness, victim, or an
informant
(a)(1) Whoever kills or attempts to kill another person, with intent to--
(A) prevent the attendance or testimony of any person in an official proceeding;
(B) prevent the production of a record, document, or other object, in an official proceeding; or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).
(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to--
(A) influence, delay, or prevent the testimony of any person in an official proceeding; (B) cause or induce any person to-- (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (iv) be absent from an official proceeding to which that person has been summoned by legal process; or *104 (C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings; shall be punished as provided in paragraph (3).
(3) The punishment for an offense under this subsection is--
(A) in the case of a killing, the punishment provided in sections 1111 and 1112; (B) in the case of--
(i) an attempt to murder; or (ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and (C) in the case of the threat of use of physical force against any person, imрrisonment for not more than 20 years. (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
(1) influence, delay, or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to-- (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or *105 (D) be absent from an official proceeding to which such person has been summoned by legal process; or (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.
(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.
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from--
(1) attending or testifying in an official proceeding; (2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings;
(3) arresting or seeking the arrest of another person in connection with a Federal offense; or (4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding; *106 or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.
(f) For the purposes of this section--
(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and (2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.
(g) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance--
(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government аgency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or (2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.
(h) There is extraterritorial Federal jurisdiction over an offense under this section.
(i) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be *107 affected or in the district in which the conduct constituting the alleged offense occurred.
(j) If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case. (k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
Notes
[1] Appellees argue that Fischer could not have obstructed the Electoral College vote certification because he arrived at the Capitol after Congress recessed. Although the nature and significance of Fischer’s conduct are factual issues to be addressed at trial, the government’s allegations sufficiently support a theory that Fischer impeded a Congressional proceeding that did not resume for six hours.
[2] Courts also have described § 1512(c)(2) as a “residual” or
“omnibus” clause.
See, e.g.
,
United States v. Gillespie
, No. 1:22-cr-
60,
[3]
See Gillespie
,
[5] The concurrence suggests that its opinion might bind future
panels under
Marks v. United States
, 430 U.S. 188 (1977). The
Marks
rule instructs that, “when the [Supreme] Court issues
fragmented opinions, the opinion of the Justices concurring in the
judgment on the ‘narrowest grounds’ should be regarded as the
Court’s holding.”
King v. Palmer
, 950 F.2d 771, 780 (D.C. Cir.
1991) (en banc) (quoting
Marks
,
[6] The overlapping provisions cited by the court include § 1512(a)(1)(A) and (B) (prohibiting killing another for obstructive purposes); § 1512(a)(2)(A), (B)(i), and (B)(iii) – (iv) (prohibiting using physical force or the threat of physical force against any person for obstructive purposes); § 1512(b)(1) (prohibiting intimidation, threats, or corrupt persuasion of another to obstruct testimony in an official proceeding); § 1512(b)(2)(A), (C), and (D) (prohibiting causing or inducing any person to withhold testimony or evidence from an official proceeding, to avoid appearing or providing evidence at an official proceeding, or to be absent from an official proceeding); and § 1512(d)(1) (prohibiting harassment of another that obstructs any person from attending or testifying in an official proceeding).
[7] See, e.g. , § 1503 (forbidding corruptly influencing, obstructing, or impeding the due administration of justice, or attempting to do so); § 1512(a)(1)(B), (a)(2)(B)(i)–(ii), (b)(2)(A)–(B) (forbidding violence, intimidation, corrupt persuasion, or misleading conduct
[8] I respectfully disagree with our dissenting colleague. The dissent does not appear to dispute that our interpretation of § 1512(c) is the most natural reading of the statute. Rather, it relies primarily on perceived ambiguity and the rule of lenity to reject our reading. The dissenting opinion chooses to adopt the “evidence-impairment” approach because it “has a bit of a Goldilocks quality to it — not too narrow and not too broad, but just right.” Dissenting Op. at 15. Even assuming ambiguity, however, the 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.” Id. 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 , 572 U.S. 844, 860 (2014), for the proposition that a statute’s expansive reach can create ambiguity, Dissenting Op. at 27–28, 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.
[1] Though the district court did not reach the meaning of “corruptly,” we have no choice. As I will explain in Sections III and IV, my vote to uphold the indictments depends on it. Plus, the issue is squarely before us. The Government admits that the Defendants raised the issue before the district court. Oral Arg. Tr. 16 (“The definition of corruptly, some defendants have challenged it. In fact, the defend- ants here challenged it below.”); see, e.g. , Second Supplement to Motion to Dismiss at 9-16, United States v. Miller , No. 1:21-cr- 00119-CJN, D.I. 59 (Nov. 15, 2021). The Government offered its proposed definition of the term in its briefing here. Appellant’s Br. 48-51. The Defendants responded with their own definition. Appel- lees’ Br. 32-36. Then, we discussed the term’s meaning with them at oral argument for around fifteen minutes. Oral Arg. Tr. 7-16, 41- 44, 66-69. At argument, the Government asked us to “construe” “corruptly” “consistent with [its] plain language.” Id. at 18. The Defendants told us that “we need to interpret corruptly in this case” and that “the Court has sufficient briefing here.” Id. at 42-43. And we have benefited from the lengthy discussion of the issue by several district judges in similar cases. See, e.g. , United States v. Sandlin , 575 F. Supp. 3d 16, 29-34 (D.D.C. 2021) (Friedrich, J.); United States v. Montgomery , 578 F. Supp. 3d 54, 80-85 (D.D.C. 2021) (Moss, J.).
[2] Later treatises show the stability of the mental state required for corruption crimes at common law. In 1897 — more than 100 years after Seymour , Williams , and Vaughan — onе treatise explained that extortion was the purposeful “taking of unlawful fees” and that it was a complete defense if the official “had ground to believe and did be- lieve that he was justified in taking the fees he received.” 2 Emlin McClain, Treatise on the Criminal Law as Now Administered in the United States 130 (1897); see also Clark & Marshall, A Treatise on the Law of Crimes 795 (6th ed. 1958) (“To constitute extortion at common law, and very generally under the statutes, there must be a corrupt intent.”) (emphasis added); Gayed, supra , at 1743-44 (col- lecting treatises).
[3] Modern legal dictionaries confirm that understanding. See, e.g. , Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“As used in criminal-law statutes, corruptly usu[ally] indicates a wrongful de- sire for pecuniary gain or other advantage.”). As do some state stat- utes. See, e.g. , California Penal Code § 7(3) (“The word ‘corruptly’ imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person.”); 21 Oklahoma Stat. § 94 (“The term ‘corruptly’ . . . imports a wrongful design to acquire some pecuniary or other advantage . . . .”).
[4] Congress has since amended the criminal code to give “corruptly” a unique definition in § 1505, requiring only “an improper purpose.” See 18 U.S.C. § 1515(b). But as Judge Silberman pointed out, vio- lating § 1505 may be “inherently . . . corrupt.” North , 910 F.2d at 941.
[5] The dissenting opinion says a defendant can act “corruptly” only if
the benefit he intends to procure is a “financial, professional, or ex-
culpatory advantage.” Dissenting Op. 35. I am not so sure.
Cf.
United States v. Townsend
,
[6] The lead opinion cites Arthur Andersen LLP v. United States , 544 U.S. 696, 705 (2005), as evidence that “corruptly” may carry its col- loquial meaning in § 1512. Lead Op. 17. But the Court in Arthur Andersen merely decided that “corruptly” requires “consciousness of wrongdoing” and noted that “[t]he outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing.” 544 U.S. at 706.
[7] For § 1505, Congress has defined “corruptly” to require only “an improper purpose.” 18 U.S.C. § 1515(b). But, as discussed earlier, see supra n.4, it may still be the case that violating § 1505 with an improper purpose is “inherently . . . corrupt,” United States v. North , 910 F.2d 843, 941 (D.C. Cir. 1990) (Silberman, J., concurring in part).
[8] As I have explained, I disagree with the dissenting opinion’s inter- pretation of § 1512(c)(2)’s act element. But I do not join footnote 8 of the lead opinion, which explains its own reasons for disagreeing with the dissent.
[9]
See Van Buren
,
[10] In other words, my reading of “corruptly” is necessary to my vote
to join the lead opinion’s proposed holding on “obstructs, influences,
or impedes” an “official proceeding.” 18 U.S.C. § 1512(c)(2). If I
did not read “corruptly” narrowly, I would join the dissenting opin-
ion. That’s because giving “corruptly” its narrow, long-established
meaning resolves otherwise compelling structural arguments for af-
firming the district court, as well as the Defendants’ vagueness con-
cerns. See
supra
Sections III & IV.
My reading of “corruptly” may also be controlling, at least if a fu-
ture panel analyzes this splintered decision under
Marks v. United
States
— the test for deciding the holding of a fractured Supreme
Court judgment.
[1] Of course, statutes with semicolons and line breaks sometimes
do define unrelated offenses.
Loughrin v. United States
, 573 U.S.
351 (2014), involved such a statute. It imposed criminal penalties on
anyone who knowingly schemes (1) to defraud a financial institution
or (2) to obtain property owned by a financial institution through
false pretenses. 18 U.S.C. § 1344. Interpreting these clauses as
operating independently, the Court rejected an argument that the
second clause requires proof of intent to defraud.
[2] My colleagues cite two lower-court decisions construing statutes with a residual otherwise clause. Ante at 12. Both cases invoked the residual clause to support a broad interpretation of a
[3] The lead opinion misreads this account. My point here is that all three interpretations of section 1512(c)(2) have significant textual difficulties, so none is unambiguously correct. As explained at length below, an evidence-focused reading is the best one despite its
[4] The 15 provisions that would collapse into subsection (c)(2) are subsections (a)(1)(A), (a)(1)(B), (a)(2)(A), (a)(2)(B)(i), (a)(2)(B)(ii), (a)(2)(B)(iii), (a)(2)(B)(iv), (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(C), (b)(2)(D), (c)(1), (d)(1), and (d)(4). The five provisions that would not collapse into subsection (c)(2) are subsections (a)(1)(C), (a)(2)(C), (b)(3), (d)(2), and (d)(3). They involve wrongfully preventing a third party from conveying information to law enforcement personnel, which is conduct upstream from an official proceeding. To confirm the details, a reader may review the appendix to this dissent, which sets forth section 1512 in its entirety.
[5] The government suggests that its interpretation of section
1512(c)(2) would not make section 1505 completely redundant
because a “proceeding” under section 1505 might not be an “official
proceeding” under section 1512. But the government’s own
Criminal Resource Manual explains that the definition of “official
proceeding” in section 1515(a)(1) is largely “a restatement of the
judicial interpretation of the word ‘proceeding’ in §§ 1503 and
1505.” U.S. Dep’t of Just., Crim. Res. Manual § 1730 (1997);
see
also United States v. Perez
,
[6] To the extent it is relevant, legislative history reinforces the statutory focus on evidence impairment. All of it refers to section 1512(c)(2) as covering document-shredding and other ways to conceal or destroy evidence. See 148 Cong. Rec. S6545–47 (daily ed. July 10, 2002); id. at S6549–50. My colleagues cite one assertedly broader statement by Senator Hatch that section 1512(c) “strengthens an existing federal offense that is often used to prosecute document shredding and other forms of obstruction of justice.” Id. at S6550. But he described these other forms of obstruction as merely other ways of “destroying evidence.” Id.
[7] Both opinions included partial concurrences, but the relevant
discussion in each one occurred in a partial dissent.
See Aguilar
, 515
U.S. at 609–12 (Scalia, J.);
North
,