Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA,
v.
Criminal Action No. 21-46 (RDM) PATRICK MONTGOMERY, BRADY
KNOWLTON,
Defendants . MEMORANDUM OPINION AND ORDER
Defendants Patrick Montgomery and Brady Knowlton are charged in a ten-count indictment with various crimes related to the breach of the United States Capitol on January 6, 2021. Dkt. 74 (second superseding indictment). Both move to dismiss Count 10 pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Dkt. 80; see also Dkt. 39; Dkt. 40; Dkt. 44; Dkt. 47; Dkt. 48; Dkt. 59; Dkt. 60; Dkt. 66. That count charges Defendants with “corruptly obstruct[ing], influenc[ing], and imped[ing] an official proceeding, that is, a proceeding before Congress”—or attempting to do so—in violation of 18 U.S.C. § 1512(c)(2). Dkt 74 at 5.
Defendants raise three principal arguments. First, they contend that Count 10 is deficient as a matter of law because the joint session of the U.S. Senate and House of Representatives “to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States,” 167 Cong. Rec. H76 (daily ed. Jan. 6, 2021), does not constitute an “official proceeding” for purposes of Section 1512(c). Dkt. 39-1 at 2–3. Second, they argue that, even if the certification of the electoral vote constitutes an “official proceeding,” Section 1512(c) applies only to actions that “impair[] the availability or integrity of evidence” *2 and does not apply to conduct that physically impedes the proceeding itself. Dkt. 60 at 25–30. Finally, Defendants argue that Section 1512(c)(2), as applied in this case, is unconstitutionally vague or overbroad. Id . at 33–54.
The question before the Court is a narrow one. The Court is not asked to review the
sufficiency of the evidence against Defendants, which the government has yet to offer. Nor is
the Court asked to craft jury instructions on the elements of Section 1512(c)(2), which the parties
have yet to propose and which may turn, in part, on the evidence not yet offered. Instead, the
sole question before the Court is the legal sufficiency of the indictment, and the Court’s role in
considering that question “is limited to reviewing the face of the indictment and, more
specifically the language used to charge the crimes.”
United States v. Thomas
, No. 17-194, 2019
WL 4095569, at *3 (D.D.C. Aug. 29, 2019) (quotation marks omitted). In the present context,
that means that the Court must determine whether Section 1512(c)(2) applies to the charged
conduct,
see
Fed. R. Crim. P. 12(b)(3)(B)(v), and, if so, whether the statute is unconstitutionally
vague or overbroad as applied to that conduct,
see United States v. Eshetu
,
As explained below, the indictment clears these initial hurdles. The Court will, accordingly, DENY Defendants’ motion to dismiss Count 10 of the second superseding indictment, Dkt. 80.
I.
A.
At 1:00 p.m. on January 6, 2021, Congress convened in a joint session, as required by the
Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15, to certify the Electoral College
vote in the 2020 presidential election. Dkt. 1-1 at 1 (Apr. 1, 2021).
[1]
Then-Vice President Mike
Pence, as President of the Senate, presided over the session.
Id.
Around 1:30 p.m., the Senate
returned to its own chamber so that the House and Senate could separately consider an objection
to the Electoral College vote from the State of Arizona.
Id.
While the certification process was
ongoing, a crowd marched toward the Capitol from a rally at which then-President Trump and
others had spoken. ;
see also United States v. Munchel
,
The Capitol and its exterior plaza were closed to members of the public that day. Dkt. 1-
1 at 1 (Apr. 1, 2021). The United States Capitol Police had erected barriers around the Capitol
*4
grounds, and the exterior doors of the Capitol were locked.
Id.
As the crowd outside the Capitol
swelled, the protest turned into a violent riot. The mob pushed past police barriers and, around
2:00 p.m., breached the Capitol.
Id.
Twenty minutes later, “[t]hen-Vice President Pence,
Senators, and Representatives were all forced to halt their constitutional duties and [to] flee the
House and Senate chambers for safety.”
Trump v. Thompson
, No. 21-5254,
According to the government, “body-worn camera footage from the Metropolitan Police Department . . . shows Knowlton and Montgomery [together] outside the Capitol at around 2:00 p.m.” on January 6, 2021. Dkt. 41 at 3. During the melee, Montgomery allegedly “tried to grab a Metropolitan Police Department officer’s baton, wrestled him to the ground for it, and then kicked the officer in the chest.” Dkt. 31 at 4. Knowlton wore a “tactical vest,” Dkt. 1-1 at 2 (Apr. 1, 2021), and, with Montgomery standing behind him, yelled at the police officers, “You took an oath! You took an oath! . . . Are you our brothers?” Dkt. 41 at 3. Video footage then shows Defendants entering the Capitol “through a door on the Upper West Terrace at approximately 2:25 p.m.,” before proceeding to the Rotunda and then the Rotunda Lobby. Dkt. 1-1 at 3–4 (Apr. 1, 2021). From there, Defendants made their way to the third floor and entered the Senate Chamber Gallery. at 5. Later, “after leaving the Gallery, . . . [D]efendants *5 encountered additional law enforcement officers.” Dkt. 63 at 12. Body-worn camera video shows both Defendants “confronting officers inside the Capitol in a hallway near Senate Majority Leader [Charles] Schumer’s office” and “direct[ing] officers to move out of the way.” Dkt. 41 at 3. At one point, the government alleges, “Knowlton told the officers, ‘This is not about us. This is bigger than me, it’s bigger than you. It’s about everyone’s right to self- government. . . . This is happening. Our vote doesn’t matter, so we are here for change.’” Dkt. 63 at 12. Montgomery added: “You gotta quit doing your job and be an American.” Id.
The following day, an acquaintance emailed Montgomery to inform him that he had been reported to the authorities. Dkt. 1-1 at 3 (Jan. 13, 2021). Montgomery responded that he was “not a scared cat or running from anything” and that he was “so deeply covered by the best Federal Defense lawyers in the country in case you chicken shit cry boys don’t want [to do what] it takes to defend our freedom from these corrupt politicians.” Id. Montgomery also posted photos of the riot to his Facebook page, including photos showing him and Knowlton at the Capitol. Id. at 6. He wrote: “This is Americans fighting for their country!” Id. He also posted a photograph from inside the Senate chamber, with the caption “[w]e stormed the Senate . . . [and] opened those Chamber door[s] for Transparency.” Id. at 7.
B.
Defendants are charged in the second superseding incitement with ten counts, only the last of which is at issue here. Dkt. 74. The first four counts name only Montgomery and relate to his alleged assault of a Metropolitan Police Department officer. at 2–3. In those counts, Montgomery is charged with assaulting, resisting, or impeding certain officers in violation of 18 U.S.C. § 111(a)(1); civil disorder in violation of 18 U.S.C. § 231(a)(3); engaging in physical violence in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(4); and an act of *6 physical violence in the Capitol grounds or buildings in violation of 40 U.S.C. § 5014(e)(2)(F). The remaining six counts charge both Montgomery and Knowlton with entering and remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); disorderly and disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2); disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D); parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G); entering and remaining in the gallery of Congress in violation of 40 U.S.C. § 5104(e)(2)(B); and, finally, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2) and aiding and abetting the obstruction of an official proceeding in violation of 18 U.S.C. § 2. Dkt. 74 at 3– 5.
On June 18, 2021, Knowlton filed a motion to dismiss the obstruction-of-an-official- proceeding charge in Count 10, Dkt. 39, and, on June 23, 2021, Montgomery moved to join in that motion, Dkt. 40. Section 1512(c)(2) makes it a felony, punishable by up to 20 years in prison, to “obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so.” For purposes of Section 1512(c), an “official proceeding” includes, among other things, “a proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B). In his motion to dismiss, Knowlton argued that the indictment was deficient (1) because it failed to specify which official proceeding Defendants allegedly obstructed and (2) because Section 1512(c)(2) prohibits obstruction of proceedings before Congress only when those proceedings relate to “the administration of justice”—a category that does not, according to Defendants, include the certification of the Electoral College vote. Dkt. 39-1 at 3–14. Events occurring after Knowlton and Montgomery filed their initial motions, however, have shifted (and expanded) the focus of the inquiry pending before the Court.
First, the Court raised a series of questions regarding the scope and meaning of Section 1512(c)(2) at oral argument, see Dkt. 53, and, in light of the parties’ responses, the Court granted Defendants leave to supplement their motion, id. at 64–65; see also Dkt. 60. Many of the arguments now before the Court first appeared in that supplemental filing. Second, after Defendants filed their initial motions, the grand jury returned a second superseding indictment, which now specifies that the “official proceeding” that Defendants allegedly obstructed was “Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment to the United States Constitution and 3 U.S.C. §§ 15–18.” Dkt. 74 at 5. That amendment mooted Defendants’ contention that the earlier indictment was invalid for lack of specificity. The amendment also, more broadly, mooted Knowlton’s motion to dismiss Count 10 of the earlier indictment and Montgomery’s request to join in Knowlton’s earlier motion. See Min. Order (Dec. 6, 2021). Because both Knowlton and Montgomery have now jointly moved to dismiss Count 10 of the second superseding indictment, Montgomery’s request for leave to join in Knowlton’s motion, Dkt. 40, is also moot. See Min. Order (Dec. 6, 2021). As a result, only one motion is now before the Court, Dkt. 80, although that motion incorporates much of the parties’ prior briefing. [2]
II.
Defendants argue that Count 10 should be dismissed for three overarching reasons. Each of their arguments, however, turns on a common theme: in Defendants’ view, each of the key terms contained in Section 1512(c)(2)—“official proceeding,” “otherwise obstructs, influences, *8 or impedes,” and “corruptly”—must be construed in a manner that limits the reach of Section 1512(c)(2) to tampering or interfering with the availability or presentation of evidence in a judicial or quasi-judicial proceeding. To construe the terms otherwise, they add, would render the statute unconstitutionally vague or overbroad as applied in this case. Because that is not what the statute says, and because Defendants’ constitutional and other non-textual arguments are unpersuasive, the Court will deny Defendants’ motion.
A.
Defendants first argue that Count 10 fails to state an offense because a joint session of Congress to certify the results of a presidential election does not qualify as an “official proceeding” within the meaning of 18 U.S.C. § 1512(c)(2). In pressing this argument, Defendants acknowledge that the phrase “official proceeding” can be read broadly and that “the election certification proceedings may . . . have the ‘trappings’ of a judicial proceeding.” Dkt. 60 at 10–12. But they urge the Court to adopt a “technical” reading of the statute and to limit the reach of Section 1512(c)(2) to formal hearings before a tribunal that resemble the business done in courts. Id. at 11. That is, according to Defendants, to qualify as an “official proceeding” for purposes of Section 1512(c)(2), a proceeding before Congress must be “court-like,” id. at 17, or “must relate to the administration of justice,” id. at 20. Although Defendants are correct that not every action taken within the walls of Congress constitutes an “official proceeding” within the meaning of Section 1512(c), a joint session of Congress convened to verify and count the electoral vote for President and Vice President of the United States does.
The Court begins, as it must, with the text. Section 1512(c)(2) makes it unlawful for anyone to “corruptly . . . obstruct[], influence[], or impede[] any official proceeding , or attempt[] to do so.” 18 U.S.C. § 1512(c)(2) (emphasis added). The provision’s use of the word “any” *9 provides the first clue as to the text’s meaning. Unlike the other provisions of Section 1512, Section 1512(c)(2) applies to the obstruction of “ any official proceeding,” id. § 1512(c)(2) (emphasis added). Compare id. , with id. § 1512(g)(1) (referring to “the official proceeding before a judge, court, magistrate judge, grand jury or government agency”), and id.
§ 1512(a)(1)(A)–(B), (a)(2)(A)–(B), (b)(1)–(2), (c)(1), (d)(1) (all referring to “
an
official
proceeding” (emphasis added)). “Read naturally, the word ‘any’ has an expansive meaning, that
is, ‘one or some indiscriminately of whatever kind.’”
United States v. Gonzales
,
That, of course, leads to the more significant question: What does the phrase “official proceeding” mean? In answering that question, the Court’s effort is aided (at least somewhat) by the fact that Congress adopted a statutory definition. Section 1515 provides that, for purposes of Section 1512, “the term ‘ official proceeding ’ means—(A) a proceeding before a judge or court of the United States . . . or a Federal grand jury; (B) a proceeding before the Congress ; (C) a proceeding before a Federal Government agency which is authorized by law; or (D) a proceeding involving the business of insurance . . . before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of a[] person engaged in the business of insurance.” 18 U.S.C. § 1515(a)(1) (emphases added). Reading Sections 1512(c)(2) and 1515(a)(1)(B) together, then, the statute prohibits someone from corruptly obstructing any proceeding before Congress.
The statutory definition, however, only advances the Court’s inquiry so far, because the
definition is “somewhat circular[]” with respect to the meaning of the word “proceeding.”
*10
United States v. Ermoian
,
As Defendants acknowledge, the word “proceeding,” when read most broadly, means “[a]n act or step that is part of a larger action.” Proceeding , Black’s Law Dictionary (11th ed. 2019); see also Proceeding , Oxford English Dictionary (3d ed. 2007) (defining “proceeding” as “[t]he carrying on of an action or series of actions”). There are good reasons, however, to conclude that Congress did not use the word in this sweeping sense. Most notably, in each iteration of Section 1515’s definition of “official proceeding,” the word “proceeding” is followed by the preposition “before.” The “proceeding” must be “before” a judge, court, or grand jury; “before” the Congress of the United States; “before” a federal agency conducting a matter “authorized by law”; or “before” an insurance regulator or examiner. That structure provides two insights into the meaning of “official proceeding.” First, it indicates that the actions or events that constitute the “proceedings” at issue must comprise part of the official business of the enumerated body. The fact that the defined term contains the adjective “official” merely reinforces this conclusion. 18 U.S.C. §§ 1512(c) & 1515(1)(1). Second, the phrase “proceeding before” suggests that the body has convened in some formal respect for the purpose of conducting that business. The Court, accordingly, concludes that “a proceeding before the Congress” requires more than “an action or series of actions” and that not every event occurring within the walls of Congress constitutes an “official proceeding.” The “proceeding” must involve a formal assembly or meeting of Congress for the purpose of conducting official business. This interpretation accords with commonly accepted legal definitions of the word *11 “proceeding,” which define the word to mean, among other things, “[t]he business conducted by . . . [an] official body.” Proceeding , Black’s Law Dictionary (11th ed. 2019).
Defendants agree that Section 1515’s definition of “official proceeding” embraces a technical meaning of “proceeding.” Dkt. 60 at 11. But they go beyond that and urge the Court to adopt an even narrower technical interpretation. In their view, the term “proceeding” in Section 1515 refers only to proceedings that are “quasi-judicial” in nature, id. at 14, “court-like” or “adjudicative,” id. at 17, or that relate “to the administration of justice,” id. at 20. Thus, according to Defendants, the phrase “proceeding before the Congress” covers only “proceedings before Congress related to the administration of justice such as a congressional committee investigating a violation of the law where witnesses are subpoenaed to appear and give testimony or to provide relevant evidence.” Dkt. 39-1 at 13. Under this definition of “proceeding before the Congress,” Defendants argue, Congress’s certification of the electoral vote for President and Vice President does not qualify.
There are several problems with Defendants’ argument. For one, it ignores the plain language that Congress employed. Had Congress intended to limit the definition of “official proceeding” to judicial and “quasi-judicial” proceedings, to proceedings at which witnesses appear and give testimony, or to proceedings related “to the administration of justice”—as Defendants contend—it could easily have done so. Long before Congress enacted Section 1515(a)(1), it had enacted Section 1503, which prohibits the obstruction of “the due administration of justice,” 18 U.S.C. § 1503(a) (originally enacted as Act of Mar. 4, 1909, ch. 321, § 135, 35 Stat. 1088, 1113), and it had enacted Section 1505, which prohibits the obstruction of “the due and proper exercise of the power of inquiry or investigation . . . by either House, or any committee of either House or any joint committee of the Congress,” id. § 1505 *12 (originally enacted as Antitrust Civil Process Act, Pub. L. No. 87-664, § 6(a), 76 Stat. 548, 552 (1962)). Congress had the necessary vocabulary at hand and could have easily defined an “official proceeding” to include “a proceeding before the Congress” involving the “administration of justice,” a proceeding at which evidence is taken, or a proceeding involving “the power of inquiry or investigation.” But it did not include any of the limitations that Defendants now ask the Court to adopt.
Defendants invoke three precedents—
United States v. Ermoian
,
Of these cases, Defendants rely most heavily on the Ninth Circuit’s decision in Ermoian . In that case, the court rejected the government’s contention that “an FBI investigation qualifies as an ‘official proceeding’ under the statute criminalizing obstruction of justice.” 752 F.3d at 1168. But that conclusion is neither remarkable nor in tension with the government’s position here: an ongoing law enforcement investigation of a criminal enterprise bears no resemblance, as a matter of form or content, to the official process mandated by the Twelfth Amendment and the Electoral Count Act for certifying the electoral vote for President and Vice President. And, as a matter of common usage, it is as natural to refer to the joint session of the Senate and House of Representatives to certify the electoral vote as “an official proceeding” as it is odd to use that label to refer to an ongoing criminal investigation.
The Court, moreover, agrees with several of the Ninth Circuit’s general observations about the meaning of the term “official proceeding.” The Ninth Circuit started its analysis, as the Court does here, by noting that the term “proceeding” “has been defined in various ways, ranging from the broad to the specific.” Id. at 1169. Then, again as the Court does here, the Ninth Circuit rejected the broadest reading—that is, “[t]he carrying on of an action or series of actions; action, course of action; conduct, behavior.” Id . (quoting Proceeding , Oxford English Dictionary (3d ed. 2007)). And, the Ninth Circuit further noted that “the descriptor ‘official’ indicates a sense of formality normally associated with legal proceedings,” id. at 1170, a premise with which this Court also agrees—although the Court notes that the certification of the electoral vote pursuant to the Twelfth Amendment and the Electoral Count Act is, if anything, a more formal (and, indeed, solemn) occasion than most “legal proceedings.”
Beyond these general observations, the Ninth Circuit did not endeavor to adopt one,
universal definition of the phrase “official proceeding,” but, rather, noted that the “most
important[]” factor in its textual analysis was the “clarif[ying]” language that appears in the
portion of the definition addressing proceedings before federal agencies but not elsewhere in
Section 1515(a)(1): in that portion of the definition, and only there, Congress added the
qualification that the proceeding must be “authorized by law.” (emphasis omitted) (quoting
18 U.S.C. § 1515(a)(1)(C)). The Ninth Circuit’s focus on that context, moreover, carried over to
the list of possible definitions of “proceeding” that the Ninth Circuit catalogued. This Court
agrees that context matters. Some definitions of the term “proceeding”—like “[t]he regular and
orderly progression of a lawsuit,”
id.
at 1169 (quoting
Proceeding
, Black’s Law Dictionary 1241
(8th ed. 2004))—apply most sensibly to “a proceeding before a judge or court,” 18 U.S.C.
§ 1515(a)(1(A). But others—most notably, “[t]he business conducted by . . . [an] official body,”
*14
There is another reason to decline Defendants’ invitation to read “a proceeding before the
Congress” to mean a “quasi-judicial” proceeding or a proceeding involving the “administration
of justice.” As a matter of separation of powers, that is not what Congress does. To be sure,
Congress’s legislative powers include the implicit authority to summon witnesses, to elicit
testimony, and to investigate facts about the world. In other words, “each House has power ‘to
secure needed information’
in order to legislate
.”
Trump v. Mazars USA, LLP
,
Defendants counter that the Constitution does, in fact, provide for two situations in which Congress acts in a “quasi-judicial” capacity: when it investigates and tries cases of impeachment, U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6, and when it acts as a “Judge of the Elections, Returns and Qualifications of its own Members,” id. art. I, § 5, cl. 1. Dkt. 60 at 16–17. Defendants fail to confront the fact, however, that to the extent the Constitution is a guide, it uses the term “proceedings” broadly—and in the more natural sense—to refer to the business conducted before “[e]ach House” of the Congress. U.S. Const. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings”). But, more importantly, had Congress intended to limit Section 1515(a)(1)(B) to impeachment and qualification proceedings, it easily could—and surely would—have done so. When it comes to statutory interpretation, it is generally a bad idea to assume that Congress used a general phrase to refer to an exceedingly narrow set of circumstances, which Congress could just as readily have described in place of the general phrase.
Another argument that Defendants press, which they again draw from
Ermoian
, Dkt. 60
at 12, also fails to translate to the congressional setting. According to
Ermoian
, Section
1515(a)(1)(c)’s “use of the preposition ‘before’ suggests an appearance in front of [an] agency
sitting as a tribunal.”
Defendants overstate the holdings of
Ermoian
and
Ramos
and misread the statutory text.
The passing assertion in
Ramos
(quoted in
Ermoian
) that “parties are directed to appear” at
“official proceedings,”
One need not look far to appreciate what it means for a proceeding to take place before the Congress, and neither the appearance of an interested “party” nor the taking of evidence is a necessary condition. To take an example from the year Congress enacted Section 1515, a *17 markup was held “ Before the Committee on Foreign Affairs” on six resolutions concerning human rights in the former Soviet Union. H. Res. 200; H. Con. Res. 218; H.J. Res. 230; H. Con. Res. 205; H.J. Res. 373; H. Res. 269: Markup Before the H. Comm. on Foreign Affs. and its Subcomm. on Human Rts. & Int’l Orgs. , 97th Cong. I (1982) (emphasis added). Although that proceeding took place before the Committee, “no witnesses” appeared. Id. at III. That example, moreover, is far from unusual; proceedings often occur “ before ” congressional committees and without witnesses or “parties.” See , e.g , Markup to Consider Three Joint Resolutions Relating to Lebanon and the War Powers Resolution: S.J. Res. 159; S.J. Res. 163; and S.J. Res. 166: Hearing Before the S. Comm. on Foreign Rels. , 98th Cong. I (1983); NASA Management Reorganization Act of 1993: Markups Before the H. Comm. on Sci., Space & Tech. , 103rd Cong. I (1993). Congress undoubtedly understood this common usage—that is, its own usage—when it enacted Section 1515(a)(1).
Finally, although both the
Ermoian
and
Ramos
courts endorsed the idea that “‘official
proceeding’ is consistently used throughout § 1512 in a manner that contemplates a formal
environment in which persons are called to appear or produce documents,” that point is not true
for all parts of the statute.
Ramos
,
The D.C. Circuit’s decision in
United States v. Kelley
, is even less on point. The relevant
discussion in that case concerns a different statute—Section 1505—and different language—“the
due and proper administration of the law under which any pending proceeding is being had
before any department or agency of the United States.”
Finally, the other cases on which Defendants rely,
Arthur Andersen LLP v. United States
,
Thus, at the end of the day, the Court concludes that the most sensible reading of Section
1515 is that the term “official proceeding” refers to “[t]he business conducted by . . . [an] official
body” that has formally convened for the purpose of conducting that business.
Proceeding
,
Black’s Law Dictionary (11th ed. 2019). This definition contemplates a level of formality—a
“formal convocation” of the relevant government entity, to borrow the words of the Fifth Circuit
in
Ramos
.
The certification process undertaken pursuant to the Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15, requires the Congress formally to convene to conduct official business, to consider objections, and to render a final decision. The Act specifies a time, hour, and place for the proceeding: Congress must convene at 1:00 p.m. “on the sixth day of January . . . in the Hall of the House of Representatives.” It identifies the “presiding officer”: “the *20 President of the Senate,” that is, the Vice President of the United States. Id. It sets a process for opening, presenting and acting upon the “certificates of the electoral votes”: two tellers from the Senate and two from the House of Representatives are handed (in alphabetical order) the certificates and all “papers purporting to be certificates” as they are opened, and the tellers are required to read the those materials “in the presence and hearing of the two Houses” and to “make a list of the votes as they shall appear from the said certificates.” Id. The Act then sets rules for propounding objections: the President of the Senate calls for objections, which, if any, “shall be made in writing, . . . shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives, before” the objection will be “received.” Id. The Act also sets procedures for resolving any such objections: each House must withdraw to its own chamber to debate the objection; each House must render a “decision;” and the electoral vote from the State at issue may be “rejected” only if both Houses agree that “the vote or votes have not been . . . regularly given by electors whose appointment has been . . . certified” pursuant to 3 U.S.C. § 6. The Act further specifies which votes Congress should count if “more than one return or paper purporting to be a return from a State shall have been received,” and when votes given by “successors or substitutes” may be counted. Id. Finally, the Act directs that once “the two Houses have voted, they shall immediately again meet, and the presiding officer shall announce the decision of the questions submitted.” Id.
Thus, as Judge Friedrich recently put it, the joint session of the Senate and House of
Representatives for purposes of certifying the electoral vote for President and Vice President of
the United States has all “the trappings of a formal hearing before an official body.”
United
Sates v. Sandlin
, No. 21-cr-88,
For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”
B.
Sounding similar themes, Defendants also argue that the phrase “otherwise obstructs, influences, or impedes any official proceeding” in Section 1512(c)(2) does not apply to the conduct charged in Count 10. In their view, Section 1512(c)(2), instead, applies only to conduct “that is directed at undermining a proceeding’s truth-finding function through actions impairing the integrity and availability of evidence.” Dkt. 60 at 27 (quotation marks omitted). [3] For the reasons explained below, the Court is unpersuaded.
*22 The Court, once again, starts with the relevant text. Section 1512(c) provides: (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).
Absent good reason, the Court must read the text of Section 1512(c)(2) “in accordance
with its ordinary or natural meaning.”
FDIC v. Meyer
,
Court recently observed in a similar context, “[t]he statutory words ‘obstruct or impede’ are
broad” and “can refer to anything that ‘block[s].’”
Marinello v. United States
,
Two other statutory terms, however, further define the offense. The adverb “corruptly”
defines the
mens rea
requirement, and a second adverb, “otherwise,” introduces Section
1512(c)(2). The Court will address the
mens rea
requirement in Section C, below. For purposes
of defining the
actus reus
, then, this leaves the adverb “otherwise,” which has occupied much of
the parties’ debate regarding the scope of Section 1512(c)(2). In Defendants’ view, the
combination of the word “otherwise” and the overall structure of the statute limits the reach of
Section 1512(c)(2) to “the same kind of obstructive impact as the . . . forms of obstruction” listed
in Section 1512(c)(1)—that is, “impairing the availability or integrity of evidence.” Dkt. 60 at
26 (quotation marks omitted). For support, they invoke the Supreme Court’s decisions in
Begay
v. United States
,
In Begay , the Court considered whether driving under the influence was a “violent felony” under the Armed Career Criminal Act (“ACCA”). The ACCA defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding a year” that
(i) ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) [was] burglary, arson, or extortion, involve[d] use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (2000) (emphasis added). Parsing this language, the Supreme Court
concluded that the examples listed before the residual clause—that is, before the word
“otherwise”—“limit[ed] the scope of the clause to crimes that are similar to the examples
themselves,”
Begay
,
Begay
does little to advance Defendants’ contention here. To start,
Begay
’s discussion of
the word “otherwise” is remarkably agnostic. The Supreme Court merely observed 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.” at 144 (citation omitted). The Court, accordingly,
placed little or no weight on the word “otherwise” in resolving the case. Moreover, just as it did
more recently in
Texas Department of Housing and Community Affairs v. Inclusive Communities
Project, Inc.
,
Because the majority assigned little significance to Congress’s use of the word “otherwise,” it merely hinted (in a single sentence) that the word “otherwise” might suggest a similarity “in respect to the degree of risk” posed by the crimes listed before “otherwise” and the crimes included in the omnibus clause. Id. at 144 (majority opinion). Justice Scalia, however, developed this point in greater detail in his separate opinion. He wrote:
The Court is correct that the clause “otherwise involves conduct that presents a serious potential risk of physical injury to another” signifies a similarity between the enumerated and unenumerated crimes. It is not, however, any old similarity, such as (to take a random example) “purposeful, ‘violent, and ‘aggressive’ conduct.” Rather, it is the particular similarity specified after the “otherwise”— i.e. , that they all pose a serious potential risk of physical injury to another. They need not be similar in any other way. As the Court correctly notes, the word “otherwise” is this context means “‘in a different way or manner.’” Therefore, by using the word “otherwise” the writer draws a substantive connection between two sets only on one specific dimension— i.e. , whatever follows “otherwise.” at 150–51 (Scalia, J., concurring in the judgment) (citations omitted). Here, if one looks to
the “particular similarity specified after the ‘otherwise’” in Section 1512(c)(2), the link or similarity between the crimes covered by Sections 1512(c)(1) and (c)(2) is that both provisions apply to conduct that—directly or indirectly—“obstructs, influences, or impedes any official proceeding.” Understood in this light, the word “otherwise” does not advance Defendants’ argument.
Begay
does, however, point to another, more substantial interpretative issue. In narrowly
reading the residual clause,
Begay
also relied on the canon against superfluity. As the Supreme
Court framed the question, if Congress intended the residual clause to apply to “
every
crime that
‘presents a serious potential risk of physical injury to another,’” what work would be performed
*26
by the examples that preceded the residual clause?
First, Sections 1512(c)(1) and (c)(2) do not overlap in the same way that the two clauses
of the ACCA overlapped. Under the version of the ACCA at issue in
Begay
, if the residual
clause was broadly construed, it would encompass all that comes before it.
See id.
at 142–43.
The Court cannot reach the same conclusion with respect to the clauses in Sections 1512(c)(1)
and (c)(2). The plain text of Section 1512(c)(1) targets the alteration of
evidence
“with the intent
to impair
the object’s integrity or availability
for use in an official proceeding.” 18 U.S.C.
§ 1512(c)(1) (emphasis added). In contrast, Section 1512(c)(2) takes aim at the obstruction of
the official proceeding
itself
. In other words, while the official proceeding is the indirect object
of the intent requirement in Section 1512(c)(1), it is the
direct
object of the conduct at issue in
Section 1512(c)(2). Thus, “‘otherwise’ . . . signals a shift in emphasis,”
Inclusive Cmtys.
Project, Inc.
,
Second, Section 1512(c) differs from the ACCA in another important respect. Congress’s challenge in defining a serious, “violent felony” in the ACCA was a substantial one, involving a large and diverse array of federal and state crimes, many of which were recognized (and ever-evolving) at common law. Under those circumstances, it was reasonable for the Court to assume that Congress meant for the residual clause to apply to crimes like burglary, arson, extortion, or crimes involving the use of explosives. But here, by contrast, it would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally— and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volumes. Indeed, the detailed proscriptions contained in other provisions of Section 1512 show that, when Congress intended to limit a provision to “the attendance or testimony of any person,” or “the production of a record, document, or other object,” or the reporting of “the commission or possible commission of” a crime, Congress knew how to do so. See, e.g. , 18 U.S.C. § 1512(a)(1)(A)–(C). Just as courts must give meaning to those limitations, they must give effect to the broad language that Congress employed in Section 1512(c)(2).
Finally, the Court is also unpersuaded by Defendants’ more general superfluity argument,
which posits that, unless Section 1512(c)(2) is narrowly construed, much of Chapter 73 would be
rendered superfluous. Dkt. 60 at 29. As an initial matter, it bears emphasis that the canon
against superfluity is “strongest when an interpretation would render superfluous another part of
the same statutory scheme.”
Marx v. Gen. Revenue Corp
.,
Even more importantly, Chapter 73 inescapably contains numerous overlapping
provisions, regardless of how broadly Section 1512(c)(2) is construed.
See Aguilar
, 515 U.S. at
616 (Scalia, J., concurring in part and dissenting in part) (“The fact that there is now some
overlap between [Section] 1503 and [Section] 1512 is no more intolerable than the fact that there
is some overlap between the omnibus clause of [Section] 1503 and the other provisions of
[Section] 1503 itself.”). Indeed, if the Court were to construe Section 1512(c)(2) in the precise
manner Defendants suggest, the second clause of Section 1503(a)—which applies to “[w]hoever
corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede, the
due administration of justice”—would be superfluous, as would the second clause of Section
1505—which applies to “[w]hoever corruptly . . . influences, obstructs, or impedes or endeavors
to influence, obstruct, or impede the due and proper administration of law” in any administrative
proceeding or “the due and proper exercise of the power of inquiry under which any inquiry or
*29
investigation is being had by either House, or any committee of either House or any joint
committee of the Congress.” As a result, the canon against superfluity, alone, does not support
Defendants’ reading of Section 1512(c)(2), and, in any event, that canon cannot trump the plain
meaning of the statute
. See Hubbard v. United States
,
The Supreme Court’s decision in
Yates
is equally inapt. The question presented in
Yates
was whether another provision of Chapter 73, Section 1519, applied to a commercial fisherman
who “caught undersized red grouper in federal waters” and then directed his crew “to toss the
suspect catch into the sea” “[t]o prevent federal authorities from confirming that he had
harvested the undersize fish.”
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . shall be fined under this title, imprisoned not more than 20 years, or both.
18 U.S.C. § 1519 (emphasis added). The Court was therefore required to decide whether the
phrase “tangible object,” as used in Section 1519, covers all “objects in the physical world,” or
“only objects one can use to record or preserve information.”
In answering that question, both the plurality and Justice Alito, who concurred in the
judgment and, in so doing, provided the decisive fifth vote, employed two canons of statutory
interpretation: the canon of “
noscitur a sociis
—a word is known by the company it keeps,”
id.
at
543—and the canon of “
ejusdem generis
”—“[w]here general words follow specific words in a
*30
statutory enumeration, the general words are usually construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words,”
id.
at 545 (alterations
omitted). Starting with the first of these canons, the plurality observed that the phrase “tangible
object” appears at the end of “a list of terms that begins with ‘any record [or] document,” and it
concluded that “[t]he term is therefore appropriately read to refer, not to any tangible object, but
specifically to the subset of tangible objects involving records and documents.”
Id.
at 544. This
conclusion, the plurality further observed, “accords with the list of actions”—or verbs—found in
Section 1519: “The section applies to anyone who ‘alters, destroys, mutilates, conceals, covers
up,
falsifies
, or
makes a false entry in
any record, document or tangible object.’”
Id.
(quoting 18
U.S.C. § 1519). Because “[t]he last two [of these] verbs, ‘falsify’ and ‘make a false entry in,’
typically take as grammatical objects records, documents, or things used to record or preserve
information, such as logbooks or hard drives,” the plurality reasoned, “[i]t would be unnatural”
to read Section 1519 to the destruction of other types of evidence.
Id.
The same conclusion,
moreover, followed from application of the
ejusdem
canon. As the plurality explained, because
“tangible objects” is a general phrase that follows “specific words in a statutory enumeration,”
“tangible objects” should be “construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.”
Id.
at 545 (quoting
Wash. State Dep’t of Soc. &
Health Servs. v. Guardianship Estate of Keffeler
,
Although Justice Alito’s concurring opinion disagreed with much of the plurality’s reasoning, Justice Alito agreed that the noscitur and ejusdem canons provided substantial guidance in interpreting Section 1519. “Applying these canons to [Section] 1519’s list of nouns,” he wrote, “the term ‘tangible object’ should refer to something similar to records or documents.” at 550 (Alito, J., concurring in the judgment). That reasoning, moreover, *31 extended beyond the operative nouns to Section 1519’s “list of verbs: ‘alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in.’” at 551. As Justice Alito colorfully observed, “[a]lthough many of those verbs could apply to nouns as far-flung as salamanders, satellites, or sand dunes, the last phrase in the list—‘makes a false entry in’—makes no sense outside of filekeeping.” Id. Ultimately, in casting the deciding vote, Justice Alito noted that the case presented a “close” question, but that “traditional tools of statutory construction confirm[ed] that [the defendant] ha[d] the better of the argument.” Id . at 549.
Contrary to what Defendants argue, neither the plurality opinion in
Yates
nor Justice
Alito’s concurrence requires the Court to read Section 1512(c)(2) to only cover acts impairing
the availability or integrity of evidence. First, Section 1512(c)(2) is not part of a list that starts in
Section 1512(c)(1), and thus interpretive canons that are most helpful when construing a general
term contained in a list that starts with specific terms are inapt.
See Overdevest Nurseries, L.P. v.
Walsh
,
Nor is the Court convinced that the discussion of statutory titles in
Yates
supports
Defendants’ argument here. It is true that Justice Alito explained that his “analysis [was]
influenced by [Section 1519’s] title: ‘Destruction, alterative, or falsification of records in Federal
investigations and bankruptcy.’”
Finally, the discussion of legislative history in the
Yates
plurality opinion does not
advance Defendants’ argument here. To start, Justice Alito concurred only in the judgment, and
his separate opinion makes no reference to legislative history or historical context. But even had
that approach garnered a majority, it would not help Defendants. In the view of the
Yates
plurality, “[i]it is highly improbable that Congress would have buried a general spoliation statute
covering objects of any and every kind in a provision” adopted as part of the Sarbanes–Oxley
*33
Act, which “target[ed] fraud in financial recordkeeping.”
Unlike Section 1519, which was at issue in Yates , Section 1512(c)(2) did not take shape until late in the legislative process. On July 10, 2002, Senator Trent Lott introduced Section 1512(c)(2) as part of a floor amendment to the legislation that would ultimately be incorporated into the Sarbanes–Oxley bill. 148 Cong. Rec. S6542 (daily ed. July 10, 2002). Because Section 1512(c)(2) did not originate in a committee, there is little legislative history that sheds light on the purposes of that particular provision. And what little history exists should not be given much weight because it comes in the form of floor statements . See NLRB v. SW General, Inc ., 137 S. Ct. 929, 943 (2017) (“[F]loor statements by individual legislators rank among the least illuminating forms of legislative history.”). But to the extent the legislative history warrants consideration, it further distinguishes this case from Yates . After Senator Lott offered the floor amendment that included Section 1512(c), Senator Orrin Hatch added his support for the amendment, explaining that Section 1512(c) was intended to “close[] [a] loophole by broadening the scope of Section 1512,” which the Senator noted was “often used to prosecute” various “forms of obstruction of justice.” 148 Cong. Rec. S6550 (daily ed. July 10, 2002) (statement of Sen. Hatch). Up to that point, Senator Hatch explained, Section 1512 only “prohibit[ed] individuals from persuading others to engage in obstructive conduct.” (emphasis added). But with the addition of Section 1512(c), he continued, Congress would “strengthen[]” the statute by prohibiting acts of obstruction “committed by a defendant acting alone .” Id. (emphasis added).
Placing Senator Hatch’s observation in context, it bears note that the ultimately
unsuccessful Arthur Andersen prosecution was not brought against any individual for personally
destroying records but, rather, was brought against the firm for “corruptly persuad[ing] another
person” to do so
. Arthur Andersen
,
Understood in that light, it is unsurprising that Congress added Section 1512(c) to the
pre-existing provisions of Section 1512, and it is unlikely that Congress was concerned with only
the type of document destruction at issue in the
Arthur Andersen
case. Congress recognized that
the existing portions of Section 1512—somewhat oddly—made it a crime to kill, assault,
threaten, intimidate, corruptly persuade, or harass another person and, thereby, indirectly to
obstruct an official proceeding, but did not make it a crime for the defendant to do so without the
(willing or unwilling) participation of a third party. And, in closing that loophole, there is no
*35
reason to believe that Congress intended to fix that problem only with respect to “the availability
or integrity of evidence.” Dkt. 60 at 26. Section 1512(d), for example, not only applies to
conduct that hinders or prevents a witness from “testifying in an official proceeding,” but also to
conduct that prevents or dissuades others, including judges, members of Congress, or agency
officials, from attending official proceedings. Either type of misconduct—regardless of whether
it involves the availability of evidence—has the indirect effect of obstructing the proceeding
itself, and Defendants offer no cogent reason to believe that Congress intended to close the
loophole only in the cases involving the availability of evidence. But to the extent Congress’s
purpose is unclear or subject to debate, “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.
,
Apart from invoking the Supreme Court’s general statements in Yates , Defendants argue that the legislative history of Section 1512(c)(2) “was expressly designed to clarify and close loopholes in the existing criminal laws relating to the destruction or fabrication of evidence and the preservation of financial and audit records.” Dkt. 60 at 28 (quotation marks omitted). But that understanding is at odds with the legislative history discussed above. Defendants, moreover, rely on a lone statement from the legislative history, and that reliance is misplaced. The statement appears in a report from the Senate Judiciary Committee that accompanied S. 2010, the Corporate and Criminal Fraud Accountability Act of 2002. As explained above, however, what *36 became Section 1512(c) was introduced late in the legislative process, and S. 2010 did not include Section 1512(c). See S. 2010, 107th Cong. (2002); see also S. Rep. 107–146, at 11–14 (providing a section-by-section analysis of S. 2010). Rather, in relevant part, S. 2010 contained only Section 1519 and Section 1520, each of which—as we know from Yates —specifically deals with evidence tampering. See S. 2010, 107th Cong. § 2. (That bill’s language would ultimately be incorporated into Sarbanes–Oxley.) As stated in the Senate committee report, S. 2010 was reported out of the Judiciary Committee on May 6, 2002, S. Rep. 107-146, at 1, two months before Senator Lott offered his floor amendment.
Finally, the
Yates
plurality opinion expressed concern about interpreting Section 1519’s
terms broadly because violating the provision was “a felony punishable by up to 20 years in
prison.”
The following day, the House took up a new bill, H.R. 5118, which attempted to remedy the House’s earlier failure to include criminal penalties in the Sarbanes–Oxley legislation by adopting some of the amendments that the Senate had added to the bill the day before. As relevant here, H.R. 5118 included the same language as the Lott amendment about amending the wire and mail fraud statutes and adding Section 1512(c), with one caveat: instead of a maximum sentence of 10 years, as the Senate bill called for, H.R. 5118 increased the maximum sentence for all three offenses to 20 years. 148 Cong. Rec. H4683 (daily ed. July 16, 2002). Later that day, H.R. 5118 passed the House by a vote of 391–28, id. at H4693, and when the Senate and the House versions of the Sarbanes–Oxley legislation were reconciled by the conference committee, the conferees settled on the House’s maximum penalty—20 years—for mail fraud, wire fraud, and Section 1512(c).
The close proximity of mail fraud, wire fraud, and Section 1512(c) in both the Lott
amendment and H.R. 5118, and the lockstep manner in which both the House and Senate
changed the three statutes’ penalties during the amendment process, undercuts any suggestion
that the stiff maximum penalty included in Section 1512(c) counsels in favor of a narrow reading
of the statute. To the contrary, it suggests that Congress—which undoubtedly knew that the
broadly worded mail and wire fraud statutes criminalized a broad swath of conduct, with
radically varying levels of severity,
see, e.g.
,
Pasquantino
,
In this situation, it is also important to observe that the maximum penalties in Sections
1341, 1343, and 1512(c) are just that—maximums—and there is no mandatory minimum
sentence for any of the three statutes. In prescribing a 20-year maximum, then, Congress placed
its trust in “judges to exercise discretion—taking into consideration various factors relating both
to offense and offender—in imposing a judgment within the range prescribed by statute.”
Apprendi v. New Jersey
,
Finally, the Court is unpersuaded by Defendants’ contention that existing precedent from
the courts of appeals counsels in favor of reading Section 1512(c)(2) to apply only to “attempts
to interfere with, or render false, evidence that would become available to a proceeding or to
prevent the flow of evidence to a proceeding.” Dkt. 60 at 27 (quotation marks omitted). The
Court does not doubt that many—or, in fact, most—cases that the Department of Justice has
brought under Section 1512(c)(2) involve an array of novel attempts to tamper with or impede
the free-flow of evidence.
See id.
But that hardly precludes application of the statute to novel
attempts to “corruptly” obstruct official proceedings, including the extraordinary circumstances
leading up to the charges in this case. Indeed, if anything, the conduct at issue in the garden-
variety Section 1512(c)(2) case is arguably less severe than other offenses that Defendants’
construction of the statute would exclude. But, even putting that all aside, Defendant are
mistaken in positing that the Section 1512(c)(2) caselaw uniformly involves efforts to falsify or
interfere with the flow of evidence.
See
,
e.g
.,
United States v. Reich
,
For all of these reasons, the Court is unpersuaded by Defendants’ contention that Section 1512(c)(2) applies only to “attempts to interfere with, or render false, evidence that would become available to a proceeding or to prevent the flow of evidence to a proceeding.” Dkt. 60 at 27 (quotation marks omitted).
C.
Finally, the Court turns to Defendants’ contentions that, so construed, Section 1512(c)(2) is unconstitutionally vague or overbroad as applied. Dkt. 60 at 33–50. As explained below, both arguments fail.
1.
Defendants first argue that, as applied to the allegations contained in the indictment,
Section 1512(c)(2) is unconstitutionally vague. A law is impermissibly vague in violation of the
Fifth Amendment’s Due Process Clause if “it fails to give ordinary people fair notice of the
conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.”
Johnson v.
United States
,
Defendants premise their vagueness argument almost exclusively on the D.C. Circuit’s
decision in
United States v. Poindexter
,
Significantly, that subsequent history includes the Supreme Court’s decision in
Arthur
Andersen
.
Id.
at *10. In
Arthur Andersen
, the Supreme Court held that the district court’s “jury
*41
instructions failed to convey properly the elements of a ‘corrup[t] persuas[ion]’ conviction under
[Section] 1512(b).”
As applicable here, several circuits have read the term “corruptly” for purposes of Section
1512(c)(2) to require a showing of “dishonesty” or an “improper purpose.”
See United States v.
Gordon
,
Poindexter
aside, the Court is also unpersuaded by Defendants’ more general appeals to
the lack of fair notice and the risk of standardless and arbitrary enforcement. Dkt. 60 at 41–46.
“[T]he vagueness doctrine bars enforcement of ‘a statute which either forbids or requires the
doing of an act in terms so vague that [people] of common intelligence must necessarily guess at
its meaning and differ as to its application.”
United States v. Lanier
,
Applying these principles here, the Court concludes that Section 1512(c)(2) “provides a discernible standard when legally construed,” and it thus passes constitutional muster, both on its face and as applied. As explained above, most of the key terms of the statute are unambiguous and mean what they say. It is unsurprising, for example, that the words “obstruct” and “impede,” 18 U.S.C. § 1512(c)(2), mean to come in the way of, to block, or to hold up or that “a proceeding before the Congress,” id. § 1515(a)(1)(B), includes the joint session of the Senate and House of Representatives held to certify the Electoral College vote. Indeed, if anything, Defendants are the ones pressing an a-textual reading of the statue that does not comport with common usage.
To be sure, not every action that obstructs or influences the business of Congress is a crime; it is not a crime to filibuster in the Senate or to give a convincing speech on the House floor. This is where the statute’s mens rea requirement comes in. The mens rea standard draws the line between lawful and criminal obstruction or influence of a congressional proceeding. For purposes of Section 1512(c), the mens rea requirement has two elements.
First
, the Supreme Court has construed similar statutes, and courts of appeals have
construed Section 1512(c), to include a nexus requirement. In
United States v. Aguilar
, the
Supreme Court considered the scope of the “omnibus clause” contained in Section 1503, which
applies to those who “corruptly or by threats or force . . . influence[], obstruct[], or impede[] . . .
the due administration of justice,” 18 U.S.C. § 1503(a).
Following
Aguilar
, the Supreme Court and other courts have adapted the nexus
requirement for purposes of various obstruction statutes. In
Arthur Andersen
, the Supreme Court
extended the nexus requirement to Section 1512(b), holding that the jury instructions were infirm
not merely because they misstated the “knowingly . . . corruptly” standard, but also because
“[t]hey led the jury to believe that it did not have to find
any
nexus between the ‘persua[sion]’ to
destroy documents and any particular proceeding,”
Although the D.C. Circuit has yet to consider the question, every circuit that has
considered whether Section 1512(c)(2) includes a nexus requirement has concluded that it does.
See
,
e.g
.,
Reich
,
Second
, although the nexus requirement is based, at least in part, on the need to establish
an “evil intent to obstruct,”
Aguilar
,
As an initial matter, the Court is unpersuaded by Defendants’ contention that the word
“corruptly,” as used in Section 1512(c), requires a wrongful intent to impede the due
administration of justice. For all the reasons discussed above, the Court has already rejected
Defendants’ contention that Section 1512(c)(2) applies only to judicial or quasi-judicial
proceedings or only to conduct that has some impact on the integrity or availability of evidence.
Nothing in the plain meaning of “corruptly” counsels otherwise. As the Supreme Court observed
in
Arthur Andersen
, the term “corruptly” is “normally associated with wrongful, immoral,
depraved, or evil” motives.
For reasons similar to those explained above, moreover, Defendants’ reading of the word “corruptly” also ignores the distinction between what courts (and, at times, administrative agencies) do and what Congress does. Because Congress’s constitutionally assigned duties do not include the “administration of justice,” it makes little sense to read into the word “corruptly” a requirement that obstruction of a congressional proceeding involve a purpose wrongfully to impede the administration of justice. Context matters for purposes of defining the word “corruptly,” and although Defendants’ preferred instruction might make sense in a case alleging obstruction of a judicial proceeding, it does not fit in a case such as this one, which involves a congressional proceeding.
Nor is the Court persuaded by Defendants’ contention that it is necessary to construe
“corruptly” to require, at a minimum, an improper purpose to impede the administration of
justice in order to create a guardrail separating felony offenses under Section 1512(c)(2) from
misdemeanor offenses under other statutes. Even accepting Defendants’ premise that some
individuals charged with misdemeanors for breaching the Capitol or engaging in similar conduct
could have been charged under Section 1512(c)(2), “the presence of enforcement discretion
alone does not render a statutory scheme unconstitutionally vague,”
Kincaid v. District of
Columbia
,
It is also incorrect to suggest that there is no meaningful difference, for example, between someone who stands “on top of [a] chair” at a congressional hearing, shouts “in the direction of the hearing committee members,” and is ultimately carried “out of the committee hearing room while he continue[s] his demonstration,” Gov’t Sentencing Memo. at 2, United States v. Barry , No. 18-mj-111 (D.D.C. Oct. 11, 2019) (Dkt. 34), and someone who breaches the Capitol with a corrupt purpose of preventing or delaying the certification of the electoral vote for President and Vice President of the United States, see Dkt. 60 at 43–45. It is one thing to prove that someone knowingly paraded in a congressional building, 40 U.S.C. § 5104(e)(2)(F), or engaged in disorderly or disruptive conduct, id . § 5104(e)(2)(D), and quite another thing to prove that *49 someone corruptly obstructed an official proceeding, 18 U.S.C. § 1512(c)(2). Among other things, to obtain a conviction on the latter charges, the government must prove beyond a reasonable doubt that the natural and probable effect of the defendant’s actions were to obstruct the official proceeding; that he knew that his actions were likely to obstruct that proceeding; and that he acted with the wrongful or improper purpose of delaying or stopping the official proceeding. That is a heavy burden, and it is up to the grand jury and the government to decide whether they have enough evidence to present to the jury. Defendants’ arguments regarding the sufficiency of the government’s evidence—or the evidence that Defendants believe the government will ultimately present—is premature. Dkt. 66 at 19–25.
For similar reasons, the Court declines Defendants’ invitation to compare the charges that the government has brought in each of the January 6 cases or to second guess the government’s decisions to offer plea agreements to lesser charges in some cases. Dkt. 66 at 17–25. The evidence in those cases is not before the Court, and, in any event, separation of powers accords the executive branch substantial deference in deciding which cases to prosecute under which statutes and in deciding whether and when to extend a plea offer. As the D.C. Circuit has explained:
Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague. In United States v. Batchelder ,442 U.S. 114 (1979), for example, the Court confronted a statutory scheme under which prosecutors had discretion to prosecute the same offense under two different statutes—one carrying a five-year prison term and one carrying a two-year prison term. The defendant, who had been convicted under the statute carrying the five-year term, argued that the statutory scheme was void for vagueness. The Supreme Court disagreed. The Court rejected the argument that the statutes “impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties.” Id. at 125–26. No such impermissible delegation was present, according to the Court, because the provisions at issue “plainly demarcate the range of penalties” to which a defendant may be subject. at 126. The Court further noted that the prosecutor’s broad discretion to determine which charge and sentence to pursue *50 did not alter that analysis. On the contrary, the Court stated that its precedent has “long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” at 123–24.
Kincaid
,
Finally, the Court is unpersuaded that the rule of lenity weighs in favor of limiting the
reach of Section 1512(c)(2) to charges involving “some alleged corrupt obstruction of
evidence
being sought in an effort to administer justice
.” Dkt. 66 at 13. The rule of lenity “only applies
if, after considering text, structure, history, and purpose, there remains a ‘grievous ambiguity or
uncertainty in the statute,’ . . . such that the Court must simply guess as to what Congress
intended.”
Barber v. Thomas
,
2.
Defendants’ only remaining argument is that Section 1512(c)(2) is unconstitutionally
overbroad. Dkt. 60 at 41. Under “First Amendment overbreadth doctrine, a statute is facially
invalid if it prohibits a substantial amount of protected speech.”
Williams
,
Defendants fail to satisfy this demanding standard. Far from identifying “a substantial amount of protected expressive activity” that the statute reaches, Defendants fail to identify any protected activity that the statute covers—or even chills. They make only two arguments. First, despite employing the overbreadth doctrine, which concerns the risk that a statute will chill the protected activity of third parties , they point to their own conduct, asserting that “the thrust of the allegations against [them] in respect to violating Section 1512(c)(2) are their verbal interactions with law enforcement” and their efforts to protest the certification of the electoral vote. Dkt. 60 at 49. But that misunderstands what the statute requires and what the government will need to prove at trial. [6] Section 1512(c)(2) does not criminalize “verbal interactions with law enforcement” or lawful protects; rather, it applies only to those who corruptly obstruct, influence, or impede official proceedings, or attempt to do so. Nor does the government’s case turn in any way on protected speech; rather, the indictment alleges that Defendants corruptly obstructed or attempted to obstruct the certification of the electoral vote. To the extent Defendants maintain that they merely “intended to utilize their First Amendment rights to free speech and assembly in *52 hopes that, by speaking out, Congress would be empowered to . . . investigate voting processes,” Dkt. 66 at 27 n.14, that is a factual argument for the jury.
Second, with no support, Defendants assert that, “if the Court can imagine clearly constitutionally protected speech subject to the reach of Section 1512(c)(2), then the statute has a substantial likelihood of burdening First Amendment rights.” Dkt. 60 at 50. That contention fails on two grounds. First, that is not how the overbreadth doctrine works. A statute is constitutionally overbroad only if it criminalizes a substantial amount of protected speech as compared to the statute’s legitimate reach. Second, the Court’s imagination is not as good as Defendants hope. In truth, given the requirements that the defendant know and wrongfully intend that her conduct will obstruct, influence, or impede an official proceeding, it is hard to grasp when, if at all, the statute might apply to protected speech. The Court, certainly, cannot conclude that any such hypothetical application is “substantial,” and Defendants, for their part, fail to identify a single such example.
The Court, accordingly, rejects Defendants’ substantial overbreadth challenge.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ motion to dismiss Count 10 of the Indictment, Dkt. 80, is DENIED .
SO ORDERED . /s/ Randolph D. Moss
RANDOLPH D. MOSS United States District Judge Date: December 28, 2021
Notes
[1] The facts in this section are provided for background purposes only; they do not inform the
Court’s analysis of Defendants’ motion to dismiss, which must be limited to “the four corners of
the indictment.”
United States v. Safavian
,
[2] With leave of Court, the parties have also filed copies of (and responses to) pleadings from other cases that have raised similar challenges, United States v. Nordean , No. 21-cr-175 (D.D.C.); United States v. Reffitt , No. 21-cr-32 (D.D.C.), to shed further light on the questions presented in this case. See Dkt. 72; Dkt. 73; Dkt. 76; Dkt. 77; Dkt. 78; Dkt. 81; Dkt. 82.
[3] Here, and elsewhere in their briefs, Defendants quote from a memorandum prepared by “the former Attorney General.” Dkt. 60 at 26; see also Dkt. 60 at 26, 27, 28, 29, 30 (quoting Memorandum from William Barr to Rod Rosenstein, Deputy Att’y Gen., Dep’t of Justice (June 8, 2018), available at https://s3.documentcloud.org/documents/5638848/June-2018-Barr-Memo- to-DOJ-Muellers-Obstruction.pdf). The Court notes, however, that the memorandum was authored by William Barr before he was appointed to serve as Attorney General in the Trump
[4]
See, e.g.
,
Gordon
,
[5] To the extent any additional guardrail is necessary, other recognized definitions of the term
“corruptly” both fit the context of the obstruction of a congressional proceeding and provide
additional guidance. In his separate opinion in
Aguilar
, for example, Justice Scalia quoted with
approval the jury instruction given by the district court in that case: “An act is done corruptly if
it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by
some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to
another person.”
[6] It also ignores evidence that Montgomery fought with a police officer, wrestled him to ground, and kicked him in the chest.