# United States v. Joseph Fischer > Court of Appeals for the D.C. Circuit · April 7, 2023 · 64 F.4th 329 URL: https://www.frixlaw.com/law-library/cases/9385592 ## Case - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** April 7, 2023 - **Citations:** 64 F.4th 329 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9385592 ## How later opinions describe it (automated extraction) - finding “sufficient domestic harm from anticompetitive conduct in NATO’s contracting process because the U.S. government was the most significant funder of NATO and Page 4 of 16 the main force behind NATO,” even though the United States “was not a direct party to the contract” - reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presidency for Donald Trump” - concluding that subsection (c)(2) is a “catch-all” that covers other, different obstructive conduct, matters not specifically enumerated - holding that the Electoral College certification is such a proceeding - declining to articulate exact contours of “corruptly” but holding that term is not vague under any definition ## Opinion text 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 5 employee . . . and . . . the acts in violation of this section involve the intent to commit another felony.” Miller Indictment, App. 86; see also Fischer Indictment, App. 444 (also alleging that “the acts in violation of this section involve physical contact with the victim”); Lang Indictment, App. 52 (same). The disorderly conduct charges specify that each appellee “willfully and knowingly engaged in disorderly and disruptive conduct in any of the Capitol Buildings with the intent to impede, disrupt, and disturb the orderly conduct of a session of Congress”; and “did knowingly, and with intent to impede and disrupt the orderly conduct of Government business and official functions, engage in disorderly and disruptive conduct . . . within the United States Capitol . . . so that such conduct did in fact impede and disrupt the orderly conduct of Government business and official functions.” Miller Indictment, App. 87–88; see also Fischer Indictment, App. 445 (alleging similar charges); Lang Indictment, App. 55–57 (same). Appellees do not challenge the sufficiency of the counts that charge them with felony assault and disorderly conduct. The government also charged each appellee with one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2), as follows: On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer, Lang, and Miller] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9385592. Public record. Not legal advice.