United States v. Joseph Fischer

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2022 Decided April 7, 2023

No. 22-3038

UNITED STATES OF AMERICA,

APPELLANT

v.

JOSEPH W. FISCHER,

APPELLEE

Consolidated with 22-3039, 22-3041

Appeals from the United States District Court

for the District of Columbia

(No. 1:21-cr-00234-1)

(No. 1:21-cr-00119-1)

James I. Pearce, Attorney, Capitol Siege Section, U.S.

Department of Justice, argued the cause for appellant. With

him on the brief was John Crabb, Jr., Chief, Capitol Siege

Section.

2

Nicholas D. Smith argued the cause for appellees. With

him on the brief were Frederick W. Ulrich, Assistant Federal

Public Defender, and F. Clinton Broden. A. J. Kramer, Federal

Public Defender, and Ronald A. Krauss, Assistant Federal

Public Defender, entered appearances.

Before: KATSAS, WALKER and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge PAN, with

whom Circuit Judge WALKER joins except as to Section I.C.1

and footnote 8.

Opinion concurring in part and concurring in the

judgment filed by Circuit Judge WALKER.

Dissenting opinion filed by Circuit Judge KATSAS.

PAN, 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.

3

BACKGROUND

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.

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.

4

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

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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.

6

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 address

“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, 589 F. Supp. 3d 60, 67–69

(D.D.C. 2022). Relying on its understanding of the Supreme

Court’s holding in Begay v. United States, 553 U.S. 137 (2008),

as well as canons of statutory construction, statutory and

legislative history, and the principles of restraint and lenity, the

district court determined that subsection (c)(2) “must be

7

interpreted as limited by subsection (c)(1).” Miller, 589 F.

Supp. 3d at 78. That led the district court to hold that

subsection (c)(2) “requires that the defendant have taken some

action with respect to a document, record, or other object in

order to corruptly obstruct, impede or influence an official

proceeding.” Id. Because appellees’ indictments do not allege

that they violated § 1512(c)(2) by committing obstructive acts

related to “a document, record, or other object,” the district

court dismissed the § 1512(c)(2) counts. Id. at 79; see also

United States v. Fischer, No. 1:21-cr-234 (D.D.C. March 15,

2022) (order relying on Miller to dismiss § 1512(c)(2) count);

United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022)

(minute order relying on Miller to dismiss § 1512(c)(2) count).

The government filed a motion to reconsider in Miller’s case,

which the district court denied. United States v. Miller, No.

1:21-cr-119, 2022 WL 1718984 (May 27, 2022). This

consolidated appeal followed.

STANDARD OF REVIEW

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, 418 U.S. 87, 117 (1974) (explaining

that an indictment must “set forth all the elements necessary to

constitute the offense intended to be punished” (citation and

internal quotation omitted)); accord United States v.

Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018). At the

motion-to-dismiss stage, the question is whether the indictment

states “essential facts constituting the offense charged . . . .”

Fed. R. Crim. P. 7(c)(1); see also United States v. Ballestas,

795 F.3d 138, 149 (D.C. Cir. 2015). “Because a court’s ‘use

of its supervisory power to dismiss an indictment . . . directly

encroaches upon the fundamental role of the grand jury,’

8

dismissal is granted only in unusual circumstances.” Ballestas,

795 F.3d at 148 (cleaned up) (quoting Whitehouse v. U.S. Dist.

Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)). We review the district

court’s interpretation of § 1512(c)(2) — a question of law —

de novo. See United States v. Verrusio, 762 F.3d 1, 13 (D.C.

Cir. 2014).

ANALYSIS

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., 560 U.S. 242, 251 (2010)

(cleaned up) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 175 (2009)). If a statute’s language is clear, then that

language controls. The Supreme Court has explained:

[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, 140 S. Ct. 355, 360 (2019) (“If the words

of a statute are unambiguous, this first step of the interpretive

inquiry is our last.”). Therefore, “[w]e must enforce plain and

unambiguous statutory language according to its terms.”

Hardt, 560 U.S. at 251.

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, 444 U.S. 37, 42 (1979))).

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, 515 U.S. 593, 598 (1995) (“[T]he ‘Omnibus

Clause’ [of § 1503] serves as a catchall, prohibiting persons

from endeavoring to influence, obstruct, or impede the due

administration of justice. The latter clause, it can be seen, is

far more general in scope than the earlier clauses of the

statute.”); United States v. Griffin, 589 F.2d 200, 206–07 (5th

Cir. 1979) (“The omnibus clause of [§ 1503] clearly states that

it punishes all endeavors to obstruct the due administration of

justice.”); United States v. Alo, 439 F.2d 751, 754 (2d Cir.

1971) (rejecting litigant’s attempt “to escape the plain meaning

of the broad language of § 1505”).

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, 781 F.3d 438, 447 (8th

Cir. 2015) (internal quotation marks omitted) (quoting United

States v. Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014)). Such

“catch-all” structures are not uncommon. See, e.g., 18 U.S.C.

§ 1952(a)(3); 28 U.S.C. § 2466(a)(1)(C). In such statutes, “the

use of the introductory word ‘otherwise’ indicates that the

evasion referred to in the [catch-all provision] reaches beyond

the[] specific examples [in the preceding sections] to myriad

means that human ingenuity might devise . . . .” Collazos v.

United States, 368 F.3d 190, 200 (2d Cir. 2004) (discussing 28

U.S.C. § 2466(a)(1)(C)); see also United States v. O’Hara, 143

F. Supp. 2d 1039, 1042 (E.D. Wis. 2001) (“The use of

‘otherwise’ in [18 U.S.C.] § [1952](a)(3) indicates that in

Congress’s view, intending to commit a crime of violence

under § (a)(2) is simply one way in which an offender can

intend to promote or facilitate unlawful activity. What

distinguishes violations of §§ (a)(2) and (a)(3) is . . . whether

the offender intends to promote or facilitate unlawful activity

by committing a crime of violence (which would violate

§ (a)(2)) or by some other means (which would violate

§ (a)(3)).”).

Thus, the broad interpretation of the statute —

encompassing all forms of obstructive acts — is unambiguous

and natural, as confirmed by the “ordinary, contemporary,

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, 2022 WL 17262218, at *4 (D.D.C. Nov. 29, 2022) (describing

§ 1512(c)(2) as a “residual clause”); United States v. Hutcherson,

No. 6:05-cr-39, 2006 WL 1875955, at *3 (W.D. Va. July 5, 2006)

(describing § 1512(c)(2) as an “omnibus clause”). These terms are

functionally similar.

13

common meaning” of the provision’s text and structure.

Perrin, 444 U.S. at 42.

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, 746 F.3d at 286; (3) seeking a false

alibi witness, Petruk, 781 F.3d at 444, 447; (4) tipping off the

targets of criminal investigations, United States v. Ahrensfield,

698 F.3d 1310, 1324–25 (10th Cir. 2012); (5) asking third

parties to create fraudulent physical evidence, United States v.

Desposito, 704 F.3d 221, 230–33 (2d Cir. 2013); (6) giving

misleading testimony in a preliminary injunction hearing,

United States v. Jefferson, 751 F.3d 314, 321 (5th Cir. 2014);

14

(7) attempting to orchestrate a grand jury witness’s testimony,

United States v. Mintmire, 507 F.3d 1273, 1290 (11th Cir.

2007); (8) making false statements to a grand jury, United

States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); and (9)

burning an apartment to conceal the bodies of two murder

victims, United States v. Cervantes, No. 16-10508, 2021 WL

2666684, at *6 (9th Cir. June 29, 2021).

To defend a narrower reading of the statute, appellees note

that the above-cited cases involve “evidence impairment,”

Appellees’ 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, 781 F.3d at 446–47; Volpendesto, 746 F.3d at 286.

Moreover, contrary to appellees’ claim, case law does not

uniformly apply the statute to circumstances involving

evidence impairment: The Second Circuit upheld a conviction

under § 1512(c)(2) where the defendant created a forged court

order, which did not impair evidence but deceived the recipient

into withdrawing an application for a writ of mandamus. See

United States v. Reich, 479 F.3d 179, 185–87 (2d Cir. 2007)

(Sotomayor, J.).

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

3

See Gillespie, 2022 WL 17262218, at *4–5 (Howell, J.); United

States v. Hale-Cusanelli, No. 21-cr-37, 2022 WL 4300000, at *1

(D.D.C. Sept. 19, 2022) (McFadden, J.); United States v. Robertson,

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, 578 F. Supp. 3d 54; Sandlin, 575

F. Supp. 3d 16. The district judge in the instant case stands

alone in ruling that § 1512(c)(2) cannot reach the conduct of

January 6 defendants. 4

610 F. Supp. 3d 229, 233–35 (D.D.C. 2022) (Cooper, J.); United

States v. Williams, No. 21-cr-618, 2022 WL 2237301, at *17 n.13

(D.D.C. June 22, 2022) (Berman Jackson, J.); United States v.

Fitzsimons, 605 F. Supp. 3d 132, 137, 142–150 (D.D.C. 2022)

(Contreras, J.); United States v. Bingert, 605 F. Supp. 3d 111, 123–

28 (D.D.C. 2022) (Lamberth, J.); United States v. McHugh, No. 21-

cr-453, 2022 WL 1302880, at *2–12 (D.D.C. May 2, 2022) (Bates,

J.); United States v. Puma, 596 F. Supp. 3d 90, 107–08, 107 n.4

(D.D.C. 2022) (Friedman, J.); United States v. Grider, 585 F. Supp.

3d 21, 29–31 (D.D.C. 2022) (Kollar-Kotelly, J.); United States v.

Nordean, 579 F. Supp. 3d 28, 43–46 (D.D.C. 2021) (Kelly, J.);

United States v. Montgomery, 578 F. Supp. 3d 54, 69–79 (D.D.C.

2021) (Moss, J.); United States v. Mostofsky, 579 F. Supp. 3d 9, 24–

26 (D.D.C. 2021) (Boasberg, J.); United States v. Caldwell, 581 F.

Supp. 3d 1, 20–33 (D.D.C. 2021) (Mehta, J.); United States v.

Sandlin, 575 F. Supp. 3d 16, 24–28 (D.D.C. 2021) (Friedrich, J.).

4

The only cases we are aware of that align with the district

court’s narrowed interpretation are United States v. Singleton, No.

H-06-80, 2006 WL 1984467, at *3 (S.D. Tex. July 14, 2006) (“[T]o

violate § 1512(c)(2), the charged conduct must have some reasonable

nexus to a record, document or tangible object.”); and United States

v. Hutcherson, No. 605-cr-39, 2006 WL 270019, at *2 (W.D. Va.

Feb. 3, 2006) (“Section 1512(c)(1) lists specific conduct that is

prohibited under this subsection; while § 1512(c)(2) is intended to

account for unenumerated conduct that violates the subsection. If an

individual corruptly obstructs an official proceeding[] through his

conduct in relation to a tangible object, such person violates this

16

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, 556 U.S. 848, 860 (2009); see

also Griffin, 589 F.2d at 206–07 (“The obstruction of justice

statute [§ 1503] was drafted with an eye to the variety of

corrupt methods by which the proper administration of justice

may be impeded or thwarted, a variety limited only by the

imagination of the criminally inclined.” (citation and internal

quotation marks omitted)). As the Supreme Court has noted:

“[T]he fact that a statute can be applied in situations not

expressly anticipated by Congress does not demonstrate

ambiguity. It demonstrates breadth.” PGA Tour, Inc. v.

Martin, 532 U.S. 661, 689 (2001) (quoting Pa. Dep’t of Corr.

v. Yeskey, 524 U.S. 206, 212 (1998)).

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.

17

1. “Corrupt” Intent

The district 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. 544 U.S. 696,

705 (2005). Second, the government here asserts that the

18

element of a “corrupt” state of mind is satisfied when a

defendant acts “with a corrupt purpose,” through

“independently corrupt means,” or both. Gov’t’s Reply 24

(quoting Sandlin, 575 F. Supp. 3d at 31); see also United States

v. North, 910 F.2d 843, 942–43 (D.C. Cir. 1990) (Silberman,

J., concurring and dissenting in part). A third definition of the

term “corruptly” was endorsed by Justice Scalia in his partial

concurrence in United States v. Aguilar, which examined the

phrase “corruptly . . . endeavors to influence, obstruct or

impede the due administration of justice” under § 1503. 515

U.S. at 616–17 (Scalia, J., concurring and dissenting in part).

Justice Scalia quoted with approval a jury instruction

specifying that “[a]n act is done corruptly if it’s done

voluntarily and intentionally to bring about either an unlawful

result or a lawful result by some unlawful method, with a hope

or expectation of either financial gain or other benefit to oneself

or a benefit of another person.” Id.

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, 910 F.2d at 942–

43 (Silberman, J., concurring and dissenting in part); see also

Sandlin, 575 F. Supp. 3d at 33–34. Each appellee in this

consolidated appeal is charged with assaulting law

enforcement officers while participating in the Capitol riot, and

such behavior clearly meets the test of independently unlawful

conduct. Furthermore, the additional element identified by

Justice Scalia also appears to be met: Appellees’ alleged

intentions of helping their preferred candidate overturn the

election results would suffice to establish a “hope or

expectation of either . . . benefit to oneself or a benefit of

another person.” Aguilar, 515 U.S. at 616–17 (Scalia, J.,

concurring and dissenting in part). Thus, the sufficiency of the

19

indictments in this case does not turn on the precise definition

of “corruptly.” Because the task of defining “corruptly” is not

before us and I am satisfied that the government has alleged

conduct by appellees sufficient to meet that element, I leave the

exact contours of “corrupt” intent for another day.

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, 714 F.2d 171,

177 (D.C. Cir. 1983) (“The premise of our adversarial system

is that appellate courts do not sit as self-directed boards of legal

inquiry and research, but essentially as arbiters of legal

questions presented and argued by the parties before them.”);

accord United States v. Van Smith, 530 F.3d 967, 974 (D.C.

Cir. 2008). Forgoing the benefits of the normal litigation

process may cause us to overlook arguments, precedents, and

practical considerations that the parties would have brought to

our attention to aid our decision-making if they were given that

opportunity. Cf. United States v. West, 392 F.3d 450, 459 (D.C.

Cir. 2004) (“Rulings on issues that have not been fully argued

run the risk of being improvident or ill-advised.” (internal

quotation and citation omitted)). For example, the concurring

opinion does not appear to consider that there are around 50

other references to “corruptly” in Title 18 of the U.S. Code.

Adopting the concurrence’s definition of “corruptly” could

make it more difficult for the government to prosecute all the

crimes defined in those other statutes — including obstruction

of justice under 18 U.S.C. § 1503, a statute for which the

Supreme Court has declined to approve the very definition of

20

“corruptly” espoused by the concurrence. See Aguilar, 515

U.S. at 599–602. Adding a new element to be proved in other

prosecutions involving “corrupt” intent would be a significant

change, which the government has not had a chance to address.

At least one pending case on this court’s docket squarely raises

the definition of “corruptly” under § 1512(c). See United

States v. Robertson, No. 22-3062. It is more prudent to delay

addressing the meaning of “corrupt” intent until that issue is

properly presented to the court.

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 takes 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

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, 430 U.S. at 193). But this court has

never applied Marks to its own cases. It seems that only one federal

appellate court has done so, see Binderup v. U.S. Att’y Gen., 836 F.3d

336, 356 (3d Cir. 2016) (en banc), and there is good reason not to

extend Marks any further. The Marks rule is “‘more easily stated

than applied . . . [it] has so obviously baffled and divided the lower

courts that have considered it’ that it has created a ‘degree of

confusion’ such that it is not aways ‘useful to pursue to the utmost

logical possibility.’” United States v. Epps, 707 F.3d 337, 348 (D.C.

Cir. 2013) (cleaned up) (quoting Nichols v. United States, 511 U.S.

738, 745–46 (1994)). Moreover, “[b]ecause it applies precisely

when there is no majority view of the law, Marks creates precedents

that are unlikely to be either legally correct or practically desirable.”

Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942,

1946 (2019).

In any event, the instant case is a poor vehicle for applying

Marks. First, the concurring opinion’s attempt to establish its view

as controlling must fail because a majority of the panel has expressly

declined to endorse the concurrence’s definition of “corruptly.” See

supra at 17–21; Dissenting Op. at 36–37 (“The concurrence’s

approach thus requires transplanting into section 1512(c)(2) a mens

rea requirement that has been used so far only in tax law.”). Second,

the concurrence’s definition is not one with which this opinion “must

necessarily agree as a logical consequence of its own, broader

position” because this opinion takes no position on the exact meaning

of “corruptly.” King, 950 F.2d at 782 (emphasis added). This

opinion’s holding on “corruptly” is grounded in the mere sufficiency

22

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, 752 F.2d 995, 999 (5th Cir. 1985)). But it is beyond

debate that appellees and other members of the public had fair

notice that assaulting law enforcement officers in an effort to

prevent Congress from certifying election results was

“wrongful” and “corrupt” under the law. See also Dissenting

Op. at 37 (stating that it is “true” that § 1512(c) “is not vague

as applied to the extreme conduct alleged here”).

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, 950 F.2d at 781; cf. Abbas v. Foreign Pol’y Grp., LLC, 783

F.3d 1328, 1337 (D.C. Cir. 2015) (“[N]either opinion can be

considered the Marks middle ground or narrowest opinion, as the

four Justices in dissent simply did not address the issue.”).

23

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, 557 U.S. 110, 126 (2009)

(prevailing party may defend judgment on any grounds

properly raised below); United States v. Coughlin, 610 F.3d 89,

108 (D.C. Cir. 2010) (explaining that “this court can affirm a

correct decision even if on different grounds than those

assigned in the decision on review” (citation omitted)).

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

means 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,

142 S. Ct. 1614, 1623 (2022). The district court deployed tools

of statutory construction and a historical analysis to conclude

that § 1512(c)(2) is applicable only if a defendant takes “action

with respect to a document, record, or other object in order to

corruptly obstruct, impede or influence an official proceeding.”

Miller, 589 F. Supp. 3d at 78. Appellees employ the same tools

to argue that the subsection is restricted to “discrete acts

25

intended to affect the availability or integrity of evidence used

in an official proceeding.” Appellees’ Br. 15. Additionally,

appellees assert that § 1512(c)(2) does not apply to their

alleged conduct under the principles of lenity and restraint.

Although we find the language of the statute unambiguous and

could end our analysis there, see Conn. Nat’l Bank, 503 U.S. at

253–54, we have nevertheless reviewed the district court’s

detailed analysis, as well as appellees’ alternative construction.

We find both interpretations unpersuasive.

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, 589 F. Supp. 3d at 71 (quoting Begay,

553 U.S. at 144). This construction requires a violation of

subsection (c)(2) to be “similar” to the violation proscribed in

subsection (c)(1). Thus, according to the district court, (c)(2)

captures only offenses related to documents, records, or objects

that are not covered by subsection (c)(1).

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).

27

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, 503 U.S. at 253–54.

The district court appeared to believe that its interpretation

of § 1512(c)(2) was compelled by Begay v. United States. See

Miller, 589 F. Supp. 3d at 71, 71 n.8. There, the Supreme Court

considered whether driving under the influence (“DUI”)

qualified as a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii),

which defines a violent felony as a crime punishable by over a

year’s imprisonment 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

. . . .” § 924(e)(2)(B)(ii) (emphasis added); Begay, 553 U.S. at

140. The Court concluded that a DUI was not a violent felony

because “the provision’s listed examples — burglary, arson,

extortion, or crimes involving the use of explosives — illustrate

the kinds of crimes that fall within the statute’s scope[,]” and a

DUI was not “roughly similar, in kind as well as in degree of

risk posed, to the examples themselves.” Begay, 553 U.S. at

28

142–43. In reaching that conclusion, the Court rejected the

government’s argument “that the word ‘otherwise’ is sufficient

to demonstrate that the examples do not limit the scope of the

clause.” Id. at 144 (emphasis in original).

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,

573 U.S. 351, 359 (2014) (explaining that “two clauses [that]

have separate numbers, line breaks before, between, and after

them, and equivalent indentation” have “separate meanings.”).

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, 552 U.S. at 226.

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, 552 U.S. at 224–26; cf. Yates, 574

U.S. at 549–52 (Alito, J. concurring in the judgment)

(explaining that noscitur a sociis and ejusdem generis canons

applied in part because the verbs and nouns shared common

attributes). The ejusdem generis and noscitur a sociis canons

are therefore irrelevant. See also Yates v. United States, 574

U.S. 528, 545 (2015) (explaining that Begay relied on principle

of ejusdem generis).

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., 523 U.S. 75, 79 (1998); accord Bostock

v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020).

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 floor 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, 589 F. Supp. 3d at 73

n.9. But as the district court acknowledged, that title does not

reflect any of the behavior prohibited by § 1512(c). See Miller,

589 F. Supp. 3d at 73 n.9. It appears that Congress chose not

to update the title of § 1512 when it passed the Sarbanes-Oxley

Act, even though the Act indisputably expanded liability under

that section. Compare Victim and Witness Protection Act of

1982, Pub. L. No. 97-291, § 4, 96 Stat 1248, 1249 (1982)

(originally enacting § 1512), with Sarbanes-Oxley Act § 1102.

We therefore find the title of the amendment proposing

§ 1512(c) more enlightening than the outdated and unaltered

title of § 1512.

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, 589 F. Supp. 3d at 73 (citing Hubbard

v. United States, 514 U.S. 695, 714 n.14 (1995)). Indeed, “[w]e

find redundancies that are . . . pitted against otherwise plain

meanings to be feeble interpretive clues.” Mercy Hosp., Inc. v.

Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018). Moreover,

“substantial” overlap between provisions “is not uncommon in

criminal statutes.” Loughrin, 573 U.S. at 358 n.4 (citing

Hubbard, 514 U.S. at 714 n.14). Here, even if we were to

accept the interpretations of the district court and appellees,

there would be numerous other subsections that also apply to

corruptly obstructing an official proceeding through conduct

affecting documents, records, or other objects, or the integrity

or availability of evidence. 7 Thus, the canon against

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

35

superfluity carries little weight here because it “‘merely favors

that interpretation which avoids surplusage,’ not the

construction substituting one instance of superfluous language

for another.” See United States v. Ali, 718 F.3d 929, 938 (D.C.

Cir. 2013) (emphasis in original) (quoting Freeman v. Quicken

Loans, Inc., 566 U.S. 624, 635 (2012)).

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, 574 U.S. at 541.

Subsection (c) prohibits both direct and indirect obstruction of

official proceedings, and adds a catch-all provision. The

subsection was inserted into a statute that already addressed

specific forms of indirect obstruction of proceedings —

subsections (a), (b), and (d) prohibit interfering with other

persons in various ways. Congress could have eliminated the

overlap between subsection (c) and the other existing

provisions only if it completely rewrote § 1512, rather than just

adding the new subsection. Congress reasonably declined to

do that. Instead, Congress chose to allow overlap in several

parts of the statutory scheme. Compare 18 U.S.C. § 1505, with

18 U.S.C. § 1519; cf. Aguilar, 515 U.S. at 616 (Scalia, J.,

concurring and dissenting in part) (“The fact that there is now

some overlap between § 1503 and § 1512 is no more

intolerable than the fact that there is some overlap between the

omnibus clause of § 1503 and the other provisions of § 1503

against another, with intent to cause a person to withhold testimony

or a record, document, or other object from an official proceeding;

or with intent to cause a person to impair an object’s integrity or

availability in an official proceeding — or attempting to do so);

§ 1519 (forbidding knowingly altering, destroying, mutilating,

concealing, covering up, falsifying, or making a false entry in a

record, document, or tangible object with intent to impede, obstruct,

or influence an investigation by, or the proper administration of, a

federal department or agency).

36

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, 589 F. Supp. 3d at 73. Appellees

similarly argue that the broad reading of § 1512(c)(2) would

locate “an elephant in a mousehole.” Appellees’ Br. 30.

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, 574 U.S. at 540–42

(explaining that Congress placed § 1512(c) among the

statutory scheme’s “broad proscriptions” that “address

obstructive acts relating broadly to official proceedings and

criminal trials”). As we have already discussed, the location of

37

the provision is explained by its late addition during the

legislative process and its purpose of expanding liability

without rewriting § 1512 in its entirety. Furthermore, we are

unconcerned about the relative placement of subsections (c)(1)

and (c)(2). It is common for a more specific subsection — such

as the one involving documents, records, and objects — to

appear first, followed by a catch-all provision. See, e.g., 18

U.S.C. §§ 1503, 1505; see also supra Section I.A.

Accordingly, we are unmoved by any claims of superfluity and

“elephants in mouseholes.”

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.

* * *

39

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.

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.

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 18

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.

WALKER, 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, 141 S. Ct. 1648, 1661 (2021) (reasoning that “breath-

taking” scope “underscores the implausibility of the Govern-

ment’s interpretation”).

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,

2

“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

3

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

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.).

4

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

5

“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, 1 Yeates 71, 74

(Pa. 1791). And in Cleaveland v. State, the Supreme Court of

Alabama rejected the argument that an official could be held

liable for making unlawful charges without knowledge that

they were illegal. 34 Ala. 254, 259 (1859). To be liable, it

held, officers must “intentionally charge and take fees which

they know at the time they are not authorized to collect.” Id.

That purpose “constitutes the corrupt intent which is the es-

sence of the offense.” Id.; see also Runnells v. Fletcher, 15

Mass. 525, 526 (1819) (officer must “willfully and corruptly

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 — one 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).

6

demand[ ] and receive[ ] other or greater fees than the law al-

lows”).3

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, 342 U.S. 246, 263 (1952) (legal “terms

of art” often carry a “cluster of ideas” from “centuries of prac-

tice”).

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

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 . . . .”).

7

“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, 641 F.2d 174,

180 (4th Cir. 1981) (cleaned up); see also United States v.

Terry, 707 F.3d 607, 612 (6th Cir. 2013) (the “agreement” be-

tween a bribe payer and a bribe receiver “must include a quid

pro quo — the receipt of something of value in exchange for

an official act”) (cleaned up).

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

8

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, 740 F.3d 22, 31 (1st Cir. 2014) (collecting cases); see

also Marinello v. United States, 138 S. Ct. 1101, 1108 (2018)

(not disputing the government’s argument that “corruptly” in

§ 7212(a) means “the specific intent to obtain an unlawful ad-

vantage”) (cleaned up).

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, 583 F.2d 216, 220 (5th Cir.

1978) (“‘corruptly’ means for an improper motive”); but see

United States v. Brenson, 104 F.3d 1267, 1281 (11th Cir. 1997)

(concluding that “corruptly” in § 1503 requires an intent to pro-

cure an unlawful benefit).

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

9

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. 752 F.2d 995, 998 (5th Cir.

1985). It reasoned that under § 1503, obstructing a juror “will

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.

10

almost necessarily result in an improper advantage to one side

in the case.” Id. at 999. By contrast, § 7212(a)’s prohibition

on obstructing the administration of the tax code covers con-

duct that does “not concern a proceeding in which a party

stands to gain an improper advantage.” Id. So in § 7212(a),

“corruptly” should be read to include “an intent to secure an

unlawful advantage or benefit.” Id. at 1001. That way,

§ 7212(a) is “substantially similar in result to” other crimes in

which the term “corruptly” appears. Id.

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, 138 S. Ct. at 1114 (Thomas, J., dissenting) (distinguish-

ing “willfully” and “corruptly”).5

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, 630 F.3d 1003, 1010-11 (11th Cir. 2011);

United States v. Girard, 601 F.2d 69, 70 (2d Cir. 1979); Trushin v.

State, 425 So.2d 1126, 1130-32 (Fla. 1982). Besides, this case may

involve a professional benefit. The Defendants’ conduct may have

been an attempt to help Donald Trump unlawfully secure a profes-

sional advantage — the presidency. Like the clerkship that Samuel

Vaughan corruptly sought hundreds of years ago, the presidency is a

coveted professional position. See Vaughan (1769) 98 Eng. Rep. at

308-10; but see Telegram from William T. Sherman to Republican

National Convention (1884) (“I will not accept if nominated, and will

not serve if elected.”).

11

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, 138 S. Ct. 2067, 2070 (2018) (cleaned up).

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, 142 S. Ct. 1953, 1959 (2022).

True, the Defendants were allegedly trying to secure the presi-

dency for Donald Trump, not for themselves or their close associates.

But the beneficiary of an unlawful benefit need not be the defendant

or his friends. Few would doubt that a defendant could be convicted

of corruptly bribing a presidential elector if he paid the elector to cast

a vote in favor of a preferred candidate — even if the defendant had

never met the candidate and was not associated with him. See Oral

Arg. Tr. 18-19, Chiafalo v. Washington, 140 S. Ct. 2316 (2020) (dis-

cussing the fear that electoral college voters might one day be

bribed).

12

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, 138 S. Ct. 1118, 1125-28

(2018) (a word’s consistent use for 125 years meant that Con-

gress “carried forward” its meaning). So when Congress used

“corruptly” in § 1512(c), an ordinary, informed reader would

have understood it to mean what it had meant in similar con-

texts for several hundred years.

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, 515 U.S. 593, 616 (1995) (Scalia, J., concur-

ring). Rather, when “Congress employs a term of art obviously

transplanted from another legal source, it brings the old soil

with it.” George, 142 S. Ct. at 1959 (cleaned up).6

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

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.

13

§ 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, 142 S. Ct. 2587, 2607 (2022) (cleaned

up). Giving “corruptly” its long-established meaning makes

sense of § 1512’s statutory scheme. A broader reading does

not.

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

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).

14

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, 574 U.S. 528, 532-36 (2015) (dis-

cussing the history of the 2002 Sarbanes-Oxley Act). That sub-

section has two parts: (c)(1) prohibits “corruptly” altering or

destroying a “document, or other object . . . with the intent to

impair the object’s integrity or availability for use in an official

proceeding”; (c)(2) is a residual clause, making it an offense to

“corruptly” “otherwise obstruct[ ], influence[ ], or impede[ ]

any official proceeding.”

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., 531 U.S. 457, 468 (2001). As the

district court put it, “a reader would not expect to find in a stat-

ute that is otherwise narrowly (and consistently) tailored a

criminal prohibition of exceptionally broad scope.” United

States v. Miller, 589 F. Supp. 3d 60, 73 (D.D.C. 2022). Yet

that is the result if (c)(2) does not have a carefully-tailored men-

tal state.

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 18

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

16

that secure an unlawful advantage. United States v. Aguilar,

515 U.S. 593, 616-17 (1995) (Scalia, J., concurring); United

States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985). Giving

“corruptly” its long-established meaning ensures that (c)(2) is

no different, thus giving it an essential link to its neighboring

provisions.

That reading of “corruptly” also reduces the degree of

overlap between (c)(2) and other provisions within § 1512. See

Miller, 589 F. Supp. 3d at 73 (arguing that a broad reading of

§ 1512(c)(2) would make the rest of § 1512 “unnecessary”).

For example, a defendant who “intentionally harasses another

person and thereby hinders . . . any person from . . . attending

or testifying in an official proceeding,” 18 U.S.C. § 1512(d)(1),

might satisfy the act elements of both subsection (d)(1) and

subsection (c)(2) (obstructing an official proceeding). But he

would not necessarily have the mental state for both crimes.

Whereas (d)(1) looks only to whether the defendant “intention-

ally harasse[d] another person,” (c)(2) requires an intent to pro-

cure an unlawful benefit. That latter mental state is considera-

bly narrower and helps explain a large sentencing disparity be-

tween both provisions. Compare 18 U.S.C. § 1512(c) (“not

more than 20 years”) with § 1512(d) (“not more than 3 years”);

see also United States v. North, 910 F.2d 843, 941 (D.C. Cir.)

(Silberman, J., concurring in part) (it “makes no sense to con-

strue” the term “corruptly” to “mean only that one must do [an

act] with . . . intent”). Of course, the mental states may some-

times overlap, but a degree of “redundancy” is common in the

criminal law. Marinello, 138 S. Ct. at 1114 (Thomas, J., dis-

senting).

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

17

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, 589 F. Supp. 3d at 71, 78 with Dis-

senting Op. 21. Though the dissent admits that its interpreta-

tion does not resolve every structural problem, it claims that it

creates “substantially less” surplusage. Dissenting Op. 23.

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.”

18

• 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, 910 F.2d at 940-41 (Silberman, J.,

concurring in part).

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, 138 S. Ct. at 1114 (Thomas, J.,

dissenting). And the canon avoiding “surplusage is strongest

when an interpretation would render superfluous another part

of the same statutory scheme.” Dissenting Op. 17 (quoting

19

Marx v. General Revenue Corp., 568 U.S. 371, 386 (2013))

(emphasis added).

Though no interpretation of § 1512(c) fixes every struc-

tural issue, the long-established 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, 910 F.2d 843, 941-

42 (D.C. Cir. 1990) (Silberman, J., concurring in part) (because

“corruptly” limited the reach of § 1505, it prevented the statute

from “convert[ing] all of Washington’s office buildings into

prisons”). “Vigorously apply[ing]” (c)(2)’s mental-state pro-

vision thus “protect[s] criminal defendants” by making it

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.

20

harder for law abiding people to unwittingly commit a federal

crime. Wooden v. United States, 142 S. Ct. 1063, 1076 (2022)

(Kavanaugh, J., concurring) (mental-state requirements “are

‘as universal and persistent in mature systems of law as belief

in freedom of the human will and a consequent ability and duty

of the normal individual to choose between good and evil’”

(quoting Morissette v. United States, 342 U.S. 246, 250

(1952))).

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

9

See Van Buren, 141 S. Ct. at 1661; Kelly v. United States, 140 S.

Ct. 1565, 1568 (2020); Marinello v. United States, 138 S. Ct. 1101,

1107 (2018); McDonnell v. United States, 579 U.S. 550 (2016); Yates

v. United States, 574 U.S. 528, 540 (2015) (plurality op.); Bond v.

United States, 572 U.S. 844, 863 (2014); Skilling v. United States,

561 U.S. 358, 410-11 (2010); Arthur Andersen LLP v. United States,

544 U.S. 696, 703 (2005).

21

“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, 138 S. Ct. 1101, 1114 (2018)

(Thomas, J., dissenting) (cleaned up). That meaning has been

recognized in similar contexts by Justice Thomas, Justice

Scalia, and Judge Silberman. Id.; United States v. Aguilar, 515

U.S. 593, 616-17 (1995) (Scalia, J., concurring); United States

v. North, 910 F.2d 843, 939-46 (D.C. Cir. 1990) (Silberman, J.,

concurring in part); see also United States v. Floyd, 740 F.3d

22, 31 (1st Cir. 2014) (collecting cases from nine other cir-

cuits). And in this context, for § 1512(c), the statutory text and

structure confirm that “corruptly” has its long-established

meaning. Reading it that way reconciles (c)(2) with the statu-

tory scheme, avoids vagueness, and heeds the Supreme Court’s

warning to beware of interpretations that impose onto criminal

statutes a “breathtaking” scope. Van Buren v. United States,

141 S. Ct. 1648, 1661 (2021).

22

Because 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

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. 430 U.S. 188, 193 (1977); see also Binderup v. At-

torney General, 836 F.3d 336, 356 (3d Cir. 2016) (en banc) (applying

Marks to determine the “law of [the] Circuit”).

Where, as here, “no single rationale explaining the result enjoys

the assent of [a majority]” — and again, in my view, the rationale in

the lead opinion is not enough to uphold the indictments — Marks

says the court’s holding is the “position taken” by the judge “who

concurred in the judgments on the narrowest grounds.” 430 U.S. at

193. The narrowest ground is a “logical subset of other, broader

opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991). It

is a “middle ground” that “produce[s] results that” accord with “a

subset of the results” intended by each opinion. United States v. Du-

vall, 740 F.3d 604, 610 (D.C. Cir. 2013) (Kavanaugh, J., concurring

in denial of rehearing en banc).

That describes my position here. I read (c)(2) to cover only some

of the conceivable defendants the lead opinion might allow a court

to convict. So my opinion is a “logical subset of [an]other, broader

opinion[ ].” Id. (cleaned up). In contrast, the lead opinion suggests

three plausible readings, including mine. Lead Op. 17-18. It then

says the Defendants’ alleged conduct is sufficient “[u]nder all those

formulations.” Id. (emphasis added). Though the lead opinion says

23

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.

KATSAS, 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 applying section 1512(c) only to acts that affect the

2

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

3

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, 371 U.S. 75, 76 (1962).

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

4

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, 138 S. Ct. 1101,

1106 (2018) (interpreting “obstruct” and “impede”); Influence,

Oxford English Dictionary, available at http://www.oed.com.

And the proceeding to certify the Electoral College vote plainly

qualified as an “official proceeding,” which the statute defines

to include “a proceeding before the Congress.” See 18 U.S.C.

§ 1515(a)(1). The dispute over the actus reus thus boils down

to the word otherwise.

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.

5

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, 141 S. Ct. 467, 470 (2020) (“The meaning of

a statement often turns on the context in which it is made, and

that is no less true of statutory language.”). As a result, “it is a

fundamental principle of statutory construction (and, indeed, of

language itself) that the meaning of a word cannot be

determined in isolation, but must be drawn from the context in

which it is used.” Reno v. Koray, 515 U.S. 50, 56 (1995)

(cleaned up). As Justice Scalia emphasized: “Perhaps no

interpretive fault is more common than the failure to follow the

whole-text canon, which calls on the judicial interpreter to

consider the entire text, in view of its structure and of the

physical and logical relation of its many parts.” Scalia &

Garner, supra, at 167.

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

6

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

7

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, 140 S. Ct. 1009,

1015 (2020). On this last point, there should be widespread

agreement. Compare Lockhart v. United States, 577 U.S. 347,

351–52 (2016) (majority), with id. at 362 (Kagan, J.,

dissenting).

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

8

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, 537 U.S. 371, 384 (2003) (cleaned up). And

noscitur a sociis, or the associated-words canon, prescribes that

“a word is given more precise content by the neighboring

words with which it is associated.” United States v. Williams,

553 U.S. 285, 294 (2008). Like the linguistic analysis above,

these canons point us to the specific examples that precede the

word otherwise to understand the more general prohibition that

follows it.

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.

9

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)

10

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–

11

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 at 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

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. 573 U.S. at 355.

But section 1344 lacked the key word—otherwise—that textually

links the two subsections in section 1512(c).

12

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

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

13

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 between 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, 368 F.3d 190, 199–

200 (2d Cir. 2004); United States v. O’Hara, 143 F. Supp. 2d 1039,

1041–42 (E.D. Wis. 2001). Neither case suggests that a residual

otherwise clause must be untethered from the preceding illustrations.

14

obstruct, impede or influence an official proceeding.” Miller,

589 F. Supp. 3d at 78.

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

15

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, 589 F. Supp. 3d at 71, but that suggests an oddly

narrow range of application for the broadly worded residual

clause. The defendants’ focus on evidence preserves

meaningful application for both subsection (c)(1) (which

covers impairing the availability of physical evidence) and

subsection (c)(2) (which, on this view, would cover impairing

the availability of other kinds of evidence). As explained

below, it also accounts for all the caselaw under section

1512(c). But a focus on evidence writ large—as opposed to

physical evidence—is arguably harder to infer from subsection

(c)(1)’s examples, all of which involve physical evidence. The

defendants’ interpretation thus has a bit of a Goldilocks quality

to it—not too narrow and not too broad, but just right. Finally,

the government’s interpretation has more than its share of

difficulties; as explained above, it would reduce subsection

(c)(1) and the word otherwise to surplusage, despite Begay.

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

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

16

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, 574 U.S. 528, 537 (2015)

(plurality) (“Whether a statutory term is unambiguous … does

not turn solely on dictionary definitions of its component

words.”). Instead, as the Supreme Court has stressed, “[t]he

plainness or ambiguity of statutory language is determined by

reference to the language itself, the specific context in which

that language is used, and the broader context of the statute as

a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Accordingly, the ambiguity determination in this case should

seek to understand section 1512(c) within its statutory context

as part of section 1512 and chapter 73. And at a minimum, it

should seek to harmonize the subsections of section 1512(c),

which consists of a single sentence nesting two subsections

between a shared mens rea element at the beginning and a

shared penalty at the end. Finally, even if I am wrong about all

of this, my colleagues err in asserting that otherwise

unambiguously means “in a different manner”—with no

consideration of any possible similarity. That mistake alone is

enough to show ambiguity within the four corners of

subsection (c)(2), in addition to the ambiguity arising from

structural considerations about how the subsections most

plausibly interact in the broader statutory context.

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.

17

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., 563 U.S. 1, 16 (2011). As shown

above, the text of section 1512(c) cuts against the government’s

all-encompassing interpretation, though perhaps not

decisively. And so do at least seven other considerations: the

presumption against surplusage, the related canons of ejusdem

generis and noscitur a sociis, the structure of section 1512, the

history of that section, precedent construing it, the improbable

and unconstitutional breadth of the government’s

interpretation, and the rule of lenity.

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., 568 U.S. 371, 386 (2013). Subsections (c)(1)

and (c)(2) are not just part of the same statutory scheme; they

are part of one sentence, and they share a single mens rea

requirement and a single authorized punishment. Within a

single phrase, clause, or sentence, there is no surplusage

problem with collapsing recognized couplets (such as “aid and

abet”) or strings of near synonyms (such as “obstructs,

influences, or impedes”). Such formulations indicate that

“iteration is obviously afoot.” Moskal v. United States, 498

18

U.S. 103, 120 (1990) (Scalia, J., dissenting). But here,

subsection (c)(1) is longer and more grammatically complex

than subsection (c)(2). The former consists of four verbs, three

direct objects, an attempt clause, and a second intent

requirement, which collectively span 32 words. The latter

consists of the critical word otherwise, three verbs, one direct

object, and an attempt clause, which collectively span 13

words. Given the respective length and structure of these two

provisions, there is no plausible reason why Congress would

enact all of section 1512(c) just to reach the conduct described

after the word otherwise in the short, catchall subsection (c)(2).

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, 553 U.S. at 142–43.

On my colleagues’ view, in contrast, the examples in

subsection (c)(1) do no work at all, and section 1512(c) has the

same breadth it would have if Congress had omitted all of

subsection (c)(1) and the word otherwise.

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

19

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

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.

20

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, 951 F.2d 369, 380

(D.C. Cir. 1991). Section 1505 prohibits corruptly obstructing

proceedings pending before Congress or executive agencies.

Absent an act of terrorism, it imposes a maximum sentence of

five years. Under the government’s reading of section

1512(c)(2), all 197 words of this section are made surplusage

by 13 words nested in a subparagraph of a subsection in the

middle of section 1512.5 Section 1503 prohibits corruptly

influencing a juror or court officer and, absent an attempted

killing or a class A or class B felony, authorizes a maximum

sentence of ten years. 18 U.S.C. § 1503(b)(3). The

government’s interpretation of subsection (c)(2) makes that

part of section 1503 redundant, leaving only its separate

application to acts of harming protected persons after the fact.

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,

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, 575 F.3d 164, 169 (2d Cir. 2009).

21

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.

22

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 overlap or surplusage.

Instead, the solution would be to narrow the scope of section

1512(c) to what the district court suggests, which would

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