Petition for Writ of Certiorari — Edward Jacob Lang, Petitioner v. United States

Supreme Court briefJul 7, 2023

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APPENDIX TABLE OF CONTENTS

Page

United States Court of Appeals for the District

of Columbia Circuit, Opinion, April 7, 2023 .... App. 1

18 U.S.C. § 1512(a)-(k) ..................................... App. 118

United States Court of Appeals for the District

of Columbia Circuit, Order (denying petition

for panel rehearing), May 23, 2023 ............. App. 124

United States Court of Appeals for the District

of Columbia Circuit, Order (granting motion to

stay issuance of mandate), June 13, 2023 ... App. 125

App. 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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Argued December 12, 2022

Decided April 7, 2023

No. 22-3038

UNITED STATES OF AMERICA,

APPELLANT

JOSEPH W. FISCHER,

APPELLEE

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Consolidated with 22-3039, 22-3041

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Appeals from the United States District Court

for the District of Columbia

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

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

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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.

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.

App. 2

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.

App. 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.

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.

App. 4

Fischer’s seven-count indictment charges him with assaulting both Capitol Police and MPD officers. Fischer

Indictment, App. 444.

Lang, as a member of the mob that forced Congress to stop its certification procedure, allegedly

fought against police officers in the Capitol for more

than two hours, repeatedly striking officers with a bat

and brandishing a stolen police shield. His 13-count indictment alleges that he assaulted six Metropolitan

Police Department (“MPD”) officers, caused bodily injury to one of them, and engaged in disorderly conduct

and physical violence with a bat and shield in a restricted area of the Capitol. See Lang Indictment, App.

52–57.

Miller allegedly traveled to the District of Columbia “for this [T]rump shit,” bringing a grappling hook,

rope, bullet-proof vest, helmets, and a mouthguard: He

believed that “crazy shit” was going to happen and a

“civil war could start.” Am. Crim. Compl., App. 75. In

his 12-count indictment, the government alleges that

Miller was part of the mob that forced its way into the

Capitol and stopped Congress’s certification process;

and that he pushed against U.S. Capitol Police officers

to gain entrance to the Rotunda. Shortly after the riot,

Miller allegedly took to Twitter and Facebook to advocate the assassination of a U.S. Congresswoman, and

to declare that a Capitol Police officer deserved to die,

threatening to “hug his neck with a nice rope.” Miller

Indictment, App. 86–87.

App. 5

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

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

App. 6

charge them with felony assault and disorderly conduct.

The government also charged each appellee with

one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2), as follows:

On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer,

Lang, and Miller] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before

Congress, specifically Congress’s certification

of the Electoral College vote as set out in the

Twelfth Amendment of the Constitution of the

United States and 3 U.S.C. §§ 15–18.

Lang Indictment, App. 55; Miller Indictment, App. 8586; 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:

(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,

App. 7

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 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.

App. 8

1:21-cr-234, 2022 WL 782413 (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,’ 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

App. 9

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.

App. 10

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 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.

App. 11

A. Text and Structure

We start by reiterating and examining the text of

§ 1512(c):

(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.

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

App. 12

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 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

App. 13

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. 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

Courts also have described § 1512(c)(2) as a “residual” or

“omnibus” clause. See, e.g., United States v. Gillespie, No. 1:22-cr60, 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.

App. 14

§ 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, common meaning” of the provision’s

text and structure. Perrin, 444 U.S. at 42.

App. 15

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

App. 16

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); (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

App. 17

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 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

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, 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.).

App. 18

instant case stands alone in ruling that § 1512(c)(2)

cannot reach the conduct of January 6 defendants.4

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,

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 subsection.”). We have reviewed those cases

and find them unpersuasive.

App. 19

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.

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.

App. 20

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 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

App. 21

“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 indictments in this case does not turn on

the precise definition of “corruptly.” Because the task

App. 22

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

App. 23

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

“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

App. 24

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

acknowledge that Congress limited the actus reus to

narrow the reach of the statute. Id. at 38.5

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 always ‘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

App. 25

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

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 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.”).

App. 26

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”).

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

App. 27

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 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

App. 28

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 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

App. 29

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,

App. 30

they contend, “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

App. 31

would have to conclude that Congress expressed its

intent with words that were almost certain to be misunderstood. See supra Section I.B (enumerating the

many federal courts that have given § 1512(c)(2) its

natural, broad reading and failed to decode the statute’s ostensibly “true” meaning).

The district court’s cramped, document-focused

interpretation is also dubious because the words of

§ 1512(c)(1) are already quite comprehensive—that

subsection addresses “alter[ing], destroy[ing], mutilat[ing], or conceal[ing]” documents, records, and objects. It is difficult to envision why a catch-all aimed at

even more document-related acts would be necessary

as a backstop. Although the district court opined that

§ 1512(c)(1) arguably does not account for conduct that

“covers up, falsifies, or makes a false entry in” a record

or document, see Miller, 589 F. Supp. 3d at 71, we cannot assume, and think it unlikely, that Congress used

expansive language to address such narrow concerns.

We must accept, and think it far more likely, that

Congress said what it meant and meant what it said:

Section 1512(c)(2) prohibits all acts that obstruct, influence, or impede any official proceeding or attempt to

do so, beyond the document or object-related acts that

are already covered by § 1512(c)(1). See Conn. Nat’l

Bank, 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

App. 32

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

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

App. 33

§ 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 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.”

App. 34

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) 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,

App. 35

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

App. 36

revelations that the company’s outside auditor, Arthur

Andersen LLP, had 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

App. 37

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 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

App. 38

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. 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

App. 39

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 or impede a proceeding.6 Appellees

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

App. 40

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 superfluity carries

of another that obstructs any person from attending or testifying

in an official proceeding).

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

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,

App. 41

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 itself.”). Nor is the fact

that overlapping subsections have different penalties

obstruct, or influence an investigation by, or the proper administration of, a federal department or agency).

App. 42

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

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

App. 43

§ 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 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 catchall 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

App. 44

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, after consulting traditional canons of

statutory construction, we are left with an ambiguous statute.”). As we have explained, the language of

§ 1512(c)(2) is clear and unambiguous. Restraint and

lenity therefore have no place in our analysis.

For all the foregoing reasons, we conclude that the

district court erred in dismissing the counts charging

each appellee with Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2). Appellees’ alleged conduct falls comfortably within the plain meaning of

“corruptly . . . obstruct[ing], influenc[ing], or imped[ing]

[an] official proceeding, or attempt[ing] to do so.” The

alternative interpretations of § 1512(c)(2) proffered by

the district court and appellees fail to convince us to

depart from the natural reading of the statute’s unambiguous text. Accordingly, we reverse the orders of the

App. 45

district court, and remand for further proceedings consistent with this opinion.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.

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 365

(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

App. 46

So ordered.

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, including under 18 U.S.C. § 1512(c)(2) for

“corruptly . . . obstruct[ing], influenc[ing], or imped[ing]”

an “official proceeding.” The district court dismissed

those counts after concluding that the Defendants’ alleged conduct is not covered by (c)(2).

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.

App. 47

That was a mistake. If proven at trial, the Defendants’ “efforts to stop Congress from certifying the results of the 2020 presidential election” are the kind of

“obstructive conduct” proscribed 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 “breathtaking” 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 “breathtaking” scope “underscores the implausibility of the

Government’s interpretation”).

Instead, I would give “corruptly” its long-standing

meaning. 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, “corruptly” makes sense of (c)(2)’s place in the statutory

scheme and avoids rendering it a vague and far-reaching criminal provision.

Those conclusions follow from five points, which I

explain in the five sections below.

App. 48

•

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 indictments should still be upheld.

“Corruptly” Has a Long-Established Meaning

at Common 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 covering bribery and obstruction of justice. In both its common-law and codified

forms, “corruptly” has almost always required proof

that a defendant acted with an intent to procure an

unlawful benefit.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

App. 49

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 defendant’s corrupt mental state to

differentiate “between licit 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.

Defendants raised the issue before the district court. Oral Arg. Tr.

16 (“The definition of corruptly, some defendants have challenged

it. In fact, the defendants 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. Appellees’ 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, 2934 (D.D.C. 2021) (Friedrich, J.); United States v. Montgomery, 578

F. Supp. 3d 54, 80-85 (D.D.C. 2021) (Moss, J.).

App. 50

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

depended on his state of mind. Id.

Thus, in extortion cases, courts considered whether

an official 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 charging ten times the customary

amount for a license to run an alehouse. (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. Williams (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 example is R v. Vaughan (1769)

98 Eng. Rep. 308, 308-10. Vaughan wanted a Supreme

App. 51

Court (of Jamaica) clerkship. So he bribed the Duke of

Grafton. The court noted that it was not “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 under . . . 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

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 believe 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 (collecting treatises).

App. 52

(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 essence of the offense.” Id.; see also Runnells v. Fletcher, 15 Mass. 525,

526 (1819) (officer must “willfully and corruptly demand[ ] and receive[ ] other or greater fees than the

law allows”).3

To sum up, the “corrupt” state of mind developed

in classic crimes of corruption, like extortion and bribery. And commonlaw courts almost always treated the

intent to procure an unlawful benefit—that is, the intent to procure a benefit which the offender knows is

unlawful—as a crucial part of the “cluster of ideas”

that defined it as a unique mental state. See Morissette

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

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

of practice”).

B. Federal Statutes

The “corrupt” state of mind eventually made its

way from the common law to federal statutes. Just like

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 desire for pecuniary gain or other advantage.”). As do

some state statutes. 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. . . .”).

App. 53

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 statutes. For example, 18 U.S.C. § 201—titled

“Bribery of public officials and witnesses”—imposes

penalties on anyone who “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) (criminalizing “corruptly . . . promis[ing] anything of value . . .

with the intent to influence” a transaction with a financial institution).

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 defendant 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 benefit be received by the official as a quid pro quo for some official

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” between a bribe payer and a bribe receiver “must include a quid pro quo—the receipt of

App. 54

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 obstruction-of-justice statutes.

In some obstruction statutes, courts have interpreted “corruptly” 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 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

either 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 advantage”)

(cleaned up).

In other obstruction statutes, the connection between “corruptly” and the defendant’s intent to procure

an unlawful benefit is implicit. Take 18 U.S.C. § 1503,

which imposes penalties on anyone who “corruptly”

App. 55

obstructs a federal juror or judicial 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 procure an unlawful benefit).

But that is because all violators of § 1503 are

nearly guaranteed 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 general 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 duty,” he noted

that under § 1503 “[a]cts specifically intended to influence, obstruct, or impede, the due administration of

justice . . . 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.,

App. 56

concurring in part). He stopped short of accusing other

courts of erring when they defined “corruptly” 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 require inquiry into “whether the defendant

was attempting to secure some advantage for himself

or for others that was improper.” 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 expressly 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 “improper motive,” as it did in § 1503. 752 F.2d 995, 998 (5th Cir.

1985). It reasoned that under § 1503, obstructing a juror “will 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 conduct that does “not

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, violating § 1505 may be “inherently . . . corrupt.”

North, 910 F.2d at 941.

App. 57

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 obstruction statute reaches, the

more vigilantly we must apply the long-established

(and relatively narrow) meaning of “corruptly.” Otherwise we risk giving criminal provisions an implausibly

broad scope, and we reduce “corruptly” to a synonym

for another established mental state—“willfully.” See

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

(distinguishing “willfully” and “corruptly”).5

The dissenting opinion says a defendant can act “corruptly”

only if the benefit he intends to procure is a “financial, professional, or exculpatory 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 professional 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.”).

True, the Defendants were allegedly trying to secure the

presidency for Donald Trump, not for themselves or their close

App. 58

II.

Congress Incorporated the Established

Meaning of “Corruptly” 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 “corruptly,” “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 common 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 “centuries of practice,” it

adopts the “cluster of ideas that were attached 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 unusual term [with] a long regulatory history in [a

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) (discussing the fear that electoral

college voters might one day be bribed).

App. 59

particular] context.” George v. McDonough, 142 S. Ct.

1953, 1959 (2022). From Tudor England to state courts

to federal statutes, “corruptly” has almost always referred to a criminal intent to procure an unlawful benefit. Its “history . . . resolves any ambiguity” about its

meaning. Hall v. Hall, 138 S. Ct. 1118, 1125-28 (2018)

(a word’s consistent use for 125 years meant that Congress “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 contexts 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., concurring). 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 § 1505. See 18 U.S.C. § 1515(b)

The lead opinion cites Arthur Andersen LLP v. United

States, 544 U.S. 696, 705 (2005), as evidence that “corruptly” may

carry its colloquial 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.

App. 60

(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 unlawful 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,

26076 (2022) (cleaned up). Giving “corruptly” its longestablished meaning makes sense of § 1512’s statutory

scheme. A broader reading does not.

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).

App. 61

Start with the structure of § 1512. Titled “[t]ampering with a witness, victim, or an informant,” it lists

obstruction offenses of varying seriousness. Subsection

(a) prohibits killing or otherwise using physical force

with the intent to prevent attendance at an official proceeding. Subsection (b) criminalizes “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-justice laws in the wake of the Enron accounting-fraud scandal. See Yates v. United States, 574

U.S. 528, 532-36 (2015) (discussing the history of the

2002 Sarbanes-Oxley Act). That subsection 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

statutory 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 statute that is otherwise narrowly (and consistently) tailored a criminal

prohibition of exceptionally broad scope.” United

App. 62

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 carefullytailored mental 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 element—there are many

ways to obstruct, influence, or impede 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, someone 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” unless 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 rioter on January 6th. This rioter joined the throng

App. 63

outside Congress 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 representative 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 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).

App. 64

But he would not necessarily have the mental state for

both crimes. Whereas (d)(1) looks only to whether the

defendant “intentionally harasse[d] another person,”

(c)(2) requires an intent to procure an unlawful benefit.

That latter mental state is considerably narrower and

helps explain a large sentencing disparity between

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 construe” the term “corruptly” to

“mean only that one must do [an act] with . . . intent”).

Of course, the mental states may sometimes overlap,

but a degree of “redundancy” is common in the criminal law. Marinello, 138 S. Ct. at 1114 (Thomas, J., dissenting).

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 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 impairment of any evidence could suffice, including witness

testimony. Compare Miller, 589 F. Supp. 3d at 71, 78

with Dissenting Op. 21. Though the dissent admits

that its interpretation does not resolve every structural problem, it claims that it creates “substantially

less” surplusage. Dissenting Op. 23.

App. 65

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 interpretation 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

prohibit killing a person “with intent to . . .

prevent the attendance 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] intimidation, threat[s], or corruptly

persuad[ing] another person, with intent to

. . . influence, delay, or prevent the testimony

of any person in an official proceeding.”

•

Subsection 1512(d)(1), which penalizes “intentionally harass[ing] another person and

thereby hinder[ing] . . . any person from . . .

App. 66

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) (intent). By contrast, (c)(2) requires a defendant to act “corruptly”—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

surplusage 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 officer) and § 1505 (corruptly obstructing proceedings pending before Congress or executive agencies) superfluous. Dissenting

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

App. 67

render superfluous another part of the same statutory

scheme.” Dissenting Op. 17 (quoting Marx v. General

Revenue Corp., 568 U.S. 371, 386 (2013)) (emphasis

added).

Though no interpretation of § 1512(c) fixes every

structural issue, the long-established definition of “corruptly” fixes many of the surplusage issues within

§ 1512. The dissent’s interpretation 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 example. Appellees’ Br. 34 (quoting § 1512(c)(2)).

Reading “corruptly” to require more than a “wrongful purpose” avoids that problem. A lobbyist who persuades a congressman to ask hard questions at a

committee hearing has influenced the proceeding, but

As I have explained, I disagree with the dissenting opinion’s interpretation 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.

App. 68

he has not sought to gain an unlawful 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 provision thus “protect[s] criminal defendants” by making it 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

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.

App. 69

itself by refusing to give “corruptly” its narrow, longestablished meaning here.

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 “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 outside 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 procure 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

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

v. United States, 544 U.S. 696, 703 (2005).

App. 70

himself or for some other person.” 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 circuits). 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

statutory 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).

Because I read “corruptly” as courts have read it

for hundreds of years—and only because I read it that

way—I concur in the Court’s judgment.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 opinion. That’s because giving “corruptly” its narrow, long-established meaning resolves otherwise compelling

structural arguments for affirming the district court, as well as

the Defendants’ vagueness concerns. See supra Sections III & IV.

My reading of “corruptly” may also be controlling, at least if

a future panel analyzes this splintered decision under Marks v.

United States—the test for deciding the holding of a fractured

App. 71

Supreme Court judgment. 430 U.S. 188, 193 (1977); see also

Binderup v. Attorney 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. Duvall, 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. 1718. It then says the Defendants’ alleged conduct is sufficient

“[u]nder all those formulations.” Id. (emphasis added). Though

the lead opinion says elsewhere that it “takes no position on the

exact meaning of ‘corruptly,’“ 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 approach. Mine is the “position taken” by the panel

member “who concurred 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

decision. 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 future panel will need some rule to decide the holding of

today’s fractured decision, and the Marks rule would be an unsurprising choice. Id. (“ ‘the Marks rule’ . . . has been used with increasing regularity”).

App. 72

I also join all but Section I.C.1 and footnote 8 of

the lead opinion.

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

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.

App. 73

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 catchall 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 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.

App. 74

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 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.

App. 75

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).

Section 1512(c) provides:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the

intent to impair the object’s integrity

or availability for use in an official

proceeding; or

(2) otherwise obstructs, influences, or

impedes any official proceeding, or

attempts to do so,

shall be fined under this title or imprisoned

not more than 20 years, or both.

Subsection (c)(2) consists of four elements. First are

its actus rei verbs—the defendant must obstruct, influence, or impede. Second is the adverb otherwise, which

qualifies the verbs by indicating some relationship

App. 76

between the covered obstruction and the acts prohibited by subsection (c)(1). Third is the direct object—the

defendant must obstruct an official proceeding. Fourth

is a mens rea requirement—in obstructing an official

proceeding, the defendant must act corruptly.

The question presented involves the actus reus—

what counts as otherwise obstructing, influencing, or

impeding an official proceeding. The literal meaning of

the verbs is undisputed: They are strikingly broad,

sweeping in anything that “hinders,” “affects the condition of,” or “has an effect on” a proceeding. See Marinello v. United States, 138 S. Ct. 1101, 1106 (2018)

(interpreting “obstruct” and “impede”); Influence, Oxford

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

And the proceeding to certify the Electoral College vote

plainly qualified as an “official proceeding,” which the

statute defines to include “a proceeding before the Congress.” See 18 U.S.C. § 1515(a)(1). The dispute over the

actus reus thus boils down to the word otherwise.

In the analysis that follows, I will first show that

the word introduces a critical ambiguity about how

subsections (c)(1) and (c)(2) relate to each other. Then,

I will explain why the ambiguity is best resolved in favor of the defendants’ evidence-focused interpretation.

Of course, these inquiries overlap considerably; the

analysis of whether a proposed interpretation is at

least reasonable (which would make it not unambiguously wrong) parallels the analysis of whether the interpretation is correct. But because my colleagues

place so much weight on a contention that subsection (c)(2) unambiguously compels the government’s

App. 77

interpretation, I will separately consider the threshold

question of ambiguity.

III

“In determining the meaning of a statutory provision, we look first to its language, giving the words

used their ordinary meaning.” Lawson v. FMR LLC,

571 U.S. 429, 440 (2014) (cleaned up). Yet we do not divorce isolated words and phrases from their statutory

context. Rather, “[c]ontext is a primary determinant of

meaning.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012); see United States

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

statement often turns on the context in which it is

made, and that is no less true of statutory language.”).

As a result, “it is a fundamental principle of statutory

construction (and, indeed, of language itself ) that the

meaning of a word cannot be determined in isolation,

but must be drawn from the context in which it is

used.” Reno v. Koray, 515 U.S. 50, 56 (1995) (cleaned

up). As Justice Scalia emphasized: “Perhaps no interpretive fault is more common than the failure to follow

the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many

parts.” Scalia & Garner, supra, at 167.

Despite the centrality of this whole-text canon,

the government urges us to consider nothing outside

the four corners of subsection (c)(2)—not the text of

App. 78

subsection (c)(1); not the text of section 1512; and not

the text of chapter 73 of Title 18, which sets forth obstruction-of-justice offenses including section 1512. According to the government, otherwise unambiguously

means “in a different way” or “in another manner.”

Otherwise, Black’s Law Dictionary (11th ed. 2019). So

subsection (c)(1) prohibits acts that obstruct an official

proceeding by impairing the integrity or availability of

physical evidence, and subsection (c)(2) prohibits acts

that obstruct an official proceeding in any other manner. In other words, section 1512(c) covers all acts that

obstruct an official proceeding. And the enumeration of

specific obstructive acts in subsection (c)(1) creates a

housekeeping question whether any individual act

may be charged under subsection (c)(1) or (c)(2). But

the enumeration does nothing to restrict the overall

scope of section 1512(c) and its 20-year authorized sentence.

This argument has a neat reductionist logic. It can

be generalized as follows: an expression of the form “A,

B, C, or otherwise D”—where A, B, and C are examples

of D—is equivalent to “D” because the word “otherwise” picks up every instance of D not already captured

by A, B, or C. And so, according to the government, section 1512(c) unambiguously reduces to the words that

follow otherwise. In this case, because the defendants

obstructed an official proceeding, section 1512(c) applies. QED.

This logic oversimplifies. It misses the point that,

in ordinary English usage, the verbs preceding a residual otherwise clause usually do help narrow its

App. 79

meaning. For example, if a rule punished anyone who

“punches, kicks, bites, or otherwise injures” someone

else, you would recognize that the examples involve

physical injury, and you would understand that the residual term likewise involves a physical injury. Further, you would do so even though the dictionary

defines the word injure to include reputational, financial, and emotional injuries. Or consider a residual

clause introduced by the adjectival form other. If I

claimed to love “lions, tigers, giraffes, and other animals,” you would recognize that the examples all involve large game. You would thus understand that

“animals” likely includes elephants, may include dogs,

and likely excludes mice. You would certainly not think

that “animals” unambiguously includes mice. And you

would deduce all this even though dictionary definitions of “animal” would be no help in distinguishing

among elephants, dogs, and mice. In short, you would

understand that what follows a residual “other” or

“otherwise” clause is likely similar (though not identical) to the examples that precede it.

As these examples show, reducing a phrase of the

form “A, B, C, or otherwise D” to “D” will likely expand

its meaning. If the boundaries of “D” were readily ascertainable without clarification, a speaker would

simply say “D,” rather than using a longer and clunkier

formulation with examples and a residual “otherwise”

clause. Nobody refers to “letters that are P, S, X, or otherwise in the English alphabet,” because we do not

need clarifying examples to understand which letters

are in the English alphabet. So, when speakers use a

App. 80

phrase like “A, B, C, or otherwise D,” there is good reason to think that D is either ambiguous (as in the “injures” example above) or likely to be interpreted too

broadly if not clarified by examples (as in the case of

my favorite “animals”). And this point about ordinary

usage is a textual one, for the goal of textualism is not

to explore the definitional possibilities for isolated

words, but to assess how “an ordinary speaker of English” would understand the phrases that Congress has

strung together. Comcast Corp. v. Nat’l Ass’n of African

Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020). On

this last point, there should be widespread agreement.

Compare Lockhart v. United States, 577 U.S. 347, 35152 (2016) (majority), with id. at 362 (Kagan, J., dissenting).

Not surprisingly, these linguistic points coincide

with several semantic canons of construction, which

track how speakers normally use English. I will have

more to say about the canons below, but for now here

are three of them: First, the canon against surplusage

is a “cardinal principle of statutory construction” that

“we must give effect, if possible, to every clause and

word of a statute.” Williams v. Taylor, 529 U.S. 362, 404

(2000) (cleaned up). Thus, if Congress uses a formulation like “A, B, C, or otherwise D,” we should be reluctant to simplify the phrase to “D,” which would read

out of the statute the examples plus the word otherwise. Second and third are the related canons of

ejusdem generis and noscitur a sociis. Ejusdem generis

provides that “where general words follow specific

words in a statutory enumeration, the general words

App. 81

are construed to embrace only objects similar in nature

to those objects enumerated by the preceding specific

words.” Wash. State Dep’t of Soc. & Health Servs. v.

Guardianship Estate of Keffeler, 537 U.S. 371, 384

(2003) (cleaned up). And noscitur a sociis, or the associated-words canon, prescribes that “a word is given

more precise content by the neighboring words with

which it is associated.” United States v. Williams, 553

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

these canons point us to the specific examples that precede the word otherwise to understand the more general prohibition that follows it.

The Supreme Court has embraced this understanding of how a residual otherwise phrase should be

interpreted. In Begay v. United States, 553 U.S. 137

(2008), the Court considered what constitutes a “violent felony” under the Armed Career Criminal Act

(ACCA). The operative definition extends to any crime

that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” 18

U.S.C. § 924(e)(2)(B)(ii). The question presented was

whether a DUI offense falls within the residual otherwise clause. Answering no, the Court expressed no

doubt that drunk driving “presents a serious potential

risk of physical injury to another,” at least as those

words are commonly understood. But it held that the

residual clause “covers only similar crimes, rather

than every crime that ‘presents a serious potential risk

App. 82

of physical injury to another.’ ” 553 U.S. at 142. The

Court explained that “to give effect to every clause and

word of th[e] statute, we should read the examples as

limiting the crimes that [the residual clause] covers to

crimes that are roughly similar, in kind as well as in

degree of risk posed, to the examples themselves.” Id.

at 143 (cleaned up). For if Congress “meant the statute

to be all encompassing, it is hard to see why it would

have needed to include the examples at all.” Id. at 142.

The Court specifically rejected the government’s

understanding of otherwise. There as here, the government argued that because the dictionary defines it to

mean “in a different manner,” the residual clause must

sweep in all conduct that satisfies its literal terms, regardless of the preceding statutory context. Brief for

the United States at 25-26, Begay v. United States, No.

06-11543 (U.S.). Disagreeing, the Court explained that

“the word ‘otherwise’ can (we do not say must) refer to

a crime that is similar to the listed examples in some

respects but different in others—similar, say, in respect

to the degree of risk it produces, but different in respect to the ‘way or manner’ in which it produces that

risk.” 553 U.S. at 144 (cleaned up). In other words, as

used to introduce a residual clause following a list of

examples, an otherwise clause is not unambiguously

all-encompassing. It can connote not only difference

but also a degree of similarity, particularly where necessary to avoid reducing the examples to surplusage.

App. 83

My colleagues do not dispute that these principles

guide our interpretation of a phrase with the general

form “A, B, C, or otherwise D.” Instead, they argue that

section 1512(c)(2) does not take that form. They offer

two distinctions, but one is immaterial and the other

cuts against their position.

First, my colleagues note that ACCA and section

1512(c) are composed differently: The ACCA definition

at issue in Begay involved “a single, unbroken sentence

within the same paragraph,” whereas section 1512(c)

uses “a separately numbered subparagraph, after a

semicolon and line break.” Ante at 28. But the relationship created by the word otherwise does not depend on

punctuation or line breaks. Rather, as explained above,

it flows from the connotation of similarity, the intuition

that speakers do not deliberately waste words, and the

need to give effect to every clause of a statute. Thus,

every claim made above about the phrase “A, B, C, or

otherwise D” applies no less to the list

(1)

(2)

(3)

C; or

(4)

otherwise D.

Other decisions reinforce the primacy of text over

punctuation or line breaks. In United States v. O’Brien,

560 U.S. 218 (2010), the Court held that Congress, by

moving part of a statutory paragraph into a separate

subparagraph, did not transform the shifted text from

App. 84

an offense element into a sentencing factor. The Court

reasoned that a “more logical explanation for the restructuring” was simply to break up the paragraph

“into a more readable statute,” as recommended by

modern legislative drafting guidelines. Id. at 233-34.

The cited guidelines suggest that text be broken into

subsections and subparagraphs “[t]o the maximum extent practicable.” House Legislative Counsel’s Manual

on Drafting Style, HLC No. 104.1, § 312 at 24 (1995);

see Senate Office of the Legislative Counsel, Legislative Drafting Manual § 112 at 9-11 (1997). O’Brien

thus confirms that we should not elevate Congress’s

drafting style—especially a choice to divide statutes

into smaller subdivisions—over the text it enacted.1

Second, the lead opinion invokes the “complicated”

structure of section 1512(c). To begin, it notes the

length and grammatical complexity of the examples

preceding the word otherwise. Ante at 40-51 n.8. But it

draws the wrong inference from this complexity. The

long, reticulated list of examples in subsection (c)(1)

makes it even more implausible that subsection (c)(2)

would render them meaningless.

Of course, statutes with semicolons and line breaks sometimes do define unrelated offenses. Loughrin v. United States, 573

U.S. 351 (2014), involved such a statute. It imposed criminal penalties on anyone who knowingly schemes (1) to defraud a financial

institution or (2) to obtain property owned by a financial institution through false pretenses. 18 U.S.C. § 1344. Interpreting these

clauses as operating independently, the Court rejected an argument that the second clause requires proof of intent to defraud.

573 U.S. at 355. But section 1344 lacked the key word—otherwise—that textually links the two subsections in section 1512(c).

App. 85

Consider another pair of hypotheticals. Suppose a

companion and I are setting off to a mountaineering

adventure. If my partner says, “Please don’t drive too

fast or otherwise put us in danger during this trip,” I

will have difficulty discerning whether “otherwise put

us in danger” is meant to be all-encompassing (i.e., covering both driving and mountaineering hazards) or

limited to dangerous driving besides speeding. But

suppose my partner says: “Please don’t drive too fast;

accelerate or decelerate suddenly and without warning; change lanes without signaling; cut off or tailgate

other cars; yell, gesture, or make strange faces at other

drivers or their passengers; or otherwise put us in danger during this trip.” In that case, I will have no doubt

that the otherwise clause refers only to driving hazards. The reason is plain: A speaker would not waste

time and effort enumerating a reticulated list only to

render it meaningless with a catchall that subsumes

and is not delimited by the list. The longer and more

complex the list of examples preceding the word otherwise, the stronger the case for giving the residual

clause a contextual rather than all-encompassing interpretation.

The lead opinion further invokes the complexity of

the words following otherwise. It conjures up this

clause: “Whoever does A, B, or C to lions, tigers, or giraffes; Or otherwise does X, Y, or Z to the jungle.” Ante

at 40 n.8. It sounds strange because the actions one

might take against lions, tigers, or giraffes are so different from the actions one might take against a jungle. It is thus hard to think of the words preceding

App. 86

“otherwise” as setting forth examples of what follows.

Precisely because “otherwise” cannot bear its usual connotation of “different from but similar to,” the entire

sentence sounds off. Section 1512(c) is not composed

like that: Match any of the four verbs in subsection

(c)(1) (alter, destroy, mutilate, or conceal) with any of its

three direct objects (a record, document, or other object)

and you will come up with a paradigmatic example of

obstructing, influencing, or impeding an official proceeding. In other words, despite the grammatical complexity of the words preceding and following otherwise,

it is easy to recognize the preceding words as setting

forth examples of what follows. And that makes section

1512(c) much closer to my stylized “A, B, C, or otherwise D” formulation—and to the actual ACCA text construed by the Supreme Court in Begay—than it is to

the exceedingly odd clause formulated by the lead

opinion.2

How do these general principles apply to section

1512(c)? Without the line break, its actus reus covers

anyone who “(1) alters, destroys, mutilates, or conceals

a record, document, or other object, . . . with the intent

My colleagues cite two lower-court decisions construing

statutes with a residual otherwise clause. Ante at 12. Both cases

invoked the residual clause to support a broad interpretation of a

preceding example. Collazos v. United States, 368 F.3d 190, 199200 (2d Cir. 2004); United States v. O’Hara, 143 F. Supp. 2d 1039,

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

otherwise clause must be untethered from the preceding illustrations.

App. 87

to impair the object’s integrity or availability for use in

an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding.” The parties

and the district court have proposed three different

readings of subsection (c)(2), based on three different

inferences about the relevant similarity through which

otherwise connects the two subsections.

As noted above, the government reads otherwise to

mean “in any other way.” On this view, the only relevant similarity between the two subsections is that

both address obstructing, influencing, or impeding an

official proceeding. Thus, subsection (c)(1) does not operate to narrow subsection (c)(2), which effectively

swallows up subsection (c)(1).

In contrast, the district court and the defendants

read otherwise to require some further similarity between the obstruction covered by subsection (c)(2) and

the specific acts covered by subsection (c)(1). But what

is the relevant criterion of similarity? The district

court read section 1512(c) as focused on the preservation of physical evidence, consistent with the string of

nouns (“record, document, or other object”) in subsection (c)(1). It therefore held that subsection (c)(2) requires the defendant to have “taken some action with

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

to corruptly obstruct, impede or influence an official

proceeding.” Miller, 589 F. Supp. 3d at 78.

For their part, the defendants read section 1512(c)

as focused on the development and preservation of

evidence, consistent with the spoliation addressed in

App. 88

subsection (c)(1) and with the broader tampering and

obstruction provisions that appear throughout section

1512 and chapter 73. The defendants invoke the views

of a distinguished commentator who summarized obstruction law this way:

[O]bstruction laws do not criminalize just any

act that can influence a “proceeding.” Rather

they are concerned with acts intended to have

a particular kind of impact. A “proceeding” is

a formalized process for finding the truth. In

general, obstruction laws are meant to protect

proceedings from actions designed to subvert

the integrity of their truth-finding function

through compromising the honesty of decision-makers (e.g., judge, jury) or impairing the

integrity or availability of evidence—testimonial, documentary, or physical.

Memorandum from Bill Barr to Deputy Att’y Gen. Rod

Rosenstein & Ass’t Att’y Gen. Steve Engel at 1 (June 8,

2018), http://perma.cc/CWX6-GAE9. For these reasons,

the defendants urge limiting subsection (c)(2) to acts

that impair the integrity or availability of evidence.

Which of these competing interpretations is best?

That is a hard question, for each has some difficulties.

The district court’s focus on physical evidence finds

strong textual support in subsection (c)(1), but risks

making subsection (c)(2) into surplusage. What acts directed at physical evidence might obstruct, influence,

or impede an official proceeding without also altering,

destroying, mutilating or concealing the evidence in order to impair its integrity or availability for use in an

App. 89

official proceeding? Perhaps covering up, falsifying, or

making false entries in the evidence, as the district

court noted, see Miller, 589 F. Supp. 3d at 71, but that

suggests an oddly narrow range of application for the

broadly worded residual clause. The defendants’ focus

on evidence preserves meaningful application for both

subsection (c)(1) (which covers impairing the availability of physical evidence) and subsection (c)(2) (which,

on this view, would cover impairing the availability of

other kinds of evidence). As explained below, it also accounts for all the caselaw under section 1512(c). But a

focus on evidence writ large—as opposed to physical

evidence—is arguably harder to infer from subsection

(c)(1)’s examples, all of which involve physical evidence. The defendants’ interpretation thus has a bit of

a Goldilocks quality to it—not too narrow and not too

broad, but just right. Finally, the government’s interpretation has more than its share of difficulties; as explained above, it would reduce subsection (c)(1) and the

word otherwise to surplusage, despite Begay.

In fact, the two subsections do not fit neatly together, so any harmonization will be textually awkward.

But the defendants win under their interpretation or

that of the district court, because the indictments do

not allege that they took any action affecting physical

or other evidence relevant to the Electoral College certification. And for the reasons given above, it seems to

me a stretch to say that the government’s interpretation is not only the best, but so much better than the

others that we can declare it unambiguously correct

App. 90

and call it a day without completing a full-blown statutory analysis.3

My colleagues conclude that subsection (c)(2) is

unambiguous because its verbs sweep broadly and its

introductory word otherwise means “in a different

manner.” Ante at 11. But ambiguity determinations do

not end with the precise text that is directly controlling

in the case. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2134-38 (2016); see Yates

v. United States, 574 U.S. 528, 537 (2015) (plurality)

(“Whether a statutory term is unambiguous . . . does

not turn solely on dictionary definitions of its component words.”). Instead, as the Supreme Court has

stressed, “[t]he plainness or ambiguity of statutory

language is determined by reference to the language

itself, the specific context in which that language is

used, and the broader context of the statute as a

whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997). Accordingly, the ambiguity determination in

this case should seek to understand section 1512(c)

within its statutory context as part of section 1512 and

chapter 73. And at a minimum, it should seek to harmonize the subsections of section 1512(c), which consists of a single sentence nesting two subsections

The lead opinion misreads this account. My point here is

that all three interpretations of section 1512(c)(2) have significant

textual difficulties, so none is unambiguously correct. As explained at length below, an evidence-focused reading is the best

one despite its arguable Goldilocks quality—not “because” of it,

ante at 39 n.8. And my Goldilocks quip may itself be a bit too pejorative, for one can infer an evidence-based focus from the

broader text and structure of section 1512.

App. 91

between a shared mens rea element at the beginning

and a shared penalty at the end. Finally, even if I am

wrong about all of this, my colleagues err in asserting

that otherwise unambiguously means “in a different

manner”—with no consideration of any possible similarity. That mistake alone is enough to show ambiguity

within the four corners of subsection (c)(2), in addition

to the ambiguity arising from structural considerations about how the subsections most plausibly interact in the broader statutory context.

Because section 1512(c) contains ambiguity, we

must use all “traditional methods of statutory interpretation” to determine its best meaning. Kasten v.

Saint-Gobain Performance Plastics Corp., 563 U.S. 1,

16 (2011). As shown above, the text of section 1512(c)

cuts against the government’s all-encompassing interpretation, though perhaps not decisively. And so do

at least seven other considerations: the presumption

against surplusage, the related canons of ejusdem generis and noscitur a sociis, the structure of section 1512,

the history of that section, precedent construing it, the

improbable and unconstitutional breadth of the government’s interpretation, and the rule of lenity.

As noted above, it is a “cardinal principle of statutory construction that we must give effect, if possible,

to every clause and word of a statute.” Williams, 529

App. 92

U.S. at 404 (cleaned up). The government’s reading of

subsection (c)(2) would create three levels of problematic surplusage.

First, as explained above, it would collapse subsection (c)(1) into subsection (c)(2). Yet “the canon against

surplusage is strongest when an interpretation would

render superfluous another part of the same statutory

scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 386

(2013). Subsections (c)(1) and (c)(2) are not just part of

the same statutory scheme; they are part of one sentence, and they share a single mens rea requirement

and a single authorized punishment. Within a single

phrase, clause, or sentence, there is no surplusage

problem with collapsing recognized couplets (such as

“aid and abet”) or strings of near synonyms (such as

“obstructs, influences, or impedes”). Such formulations

indicate that “iteration is obviously afoot.” Moskal v.

United States, 498 U.S. 103, 120 (1990) (Scalia, J., dissenting). But here, subsection (c)(1) is longer and more

grammatically complex than subsection (c)(2). The former consists of four verbs, three direct objects, an attempt clause, and a second intent requirement, which

collectively span 32 words. The latter consists of the

critical word otherwise, three verbs, one direct object,

and an attempt clause, which collectively span 13

words. Given the respective length and structure of

these two provisions, there is no plausible reason why

Congress would enact all of section 1512(c) just to

reach the conduct described after the word otherwise

in the short, catchall subsection (c)(2).

App. 93

The concurrence responds that my interpretation

creates the same surplusage problem because, on my

view, subsection (c)(2) still covers all the conduct prohibited by subsection (c)(1). Ante at 17 (opinion of

Walker, J.). Of course, the residual term D in any “A, B,

C, or otherwise D” formulation covers the preceding examples. And so, under any of the three possible interpretations of section 1512(c), subsection (c)(2) covers

the examples set forth in subsection (c)(1). But on my

view, the examples do meaningful work by narrowing

the breadth of the residual term. See Begay, 553 U.S.

at 142-43. On my colleagues’ view, in contrast, the examples in subsection (c)(1) do no work at all, and section 1512(c) has the same breadth it would have if

Congress had omitted all of subsection (c)(1) and the

word otherwise.

Second, the government’s reading also would collapse most of section 1512 into the subsection (c)(2)

catchall. Section 1512 sets forth 21 different offenses,

and the government’s reading would fold at least 15

of them into subsection (c)(2). Here are a few random

examples: Section 1512(a)(1) prohibits killing a person to prevent his attendance at an official proceeding or to prevent the production of a record, document,

or other object in an official proceeding. 18 U.S.C.

§ 1512(a)(1)(A), (B). Section 1512(b)(1) prohibits corruptly persuading another person to influence, delay,

or prevent testimony at an official proceeding. Section

1512(d)(1) prohibits harassing another person to dissuade him from attending an official proceeding. And

section 1512(d)(4) prohibits harassing another person

App. 94

to prevent a criminal prosecution. All these acts—and

the others prohibited by most other parts of section

1512—would influence or affect an official proceeding.4

This wholesale surplusage is even stranger given

section 1512’s graduated penalty scheme. Section

1512(a) authorizes terms of imprisonment of up to 30

years for various obstructive acts involving the use of

physical force, 18 U.S.C. § 1512(a)(3)(B), and up to 20

years for obstructive acts involving the threat of physical force, id. § 1512(a)(3)(C). Section 1512(b) authorizes terms of up to 20 years for obstructive acts

involving intimidation. Id. § 1512(b). Section 1512(d)

authorizes maximum terms of only three years for obstructive acts involving harassment. Id. § 1512(d). By

collapsing most of section 1512 into its subsection

(c)(2), the government’s interpretation would lump together conduct warranting up to three decades of imprisonment with conduct warranting at most three

years—a distinction reflected in the broader structure

of section 1512.

The 15 provisions that would collapse into subsection (c)(2)

are subsections (a)(1)(A), (a)(1)(B), (a)(2)(A), (a)(2)(B)(i), (a)(2)(B)(ii),

(a)(2)(B)(iii), (a)(2)(B)(iv), (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(C),

(b)(2)(D), (c)(1), (d)(1), and (d)(4). The five provisions that would

not collapse into subsection (c)(2) are subsections (a)(1)(C),

(a)(2)(C), (b)(3), (d)(2), and (d)(3). They involve wrongfully preventing a third party from conveying information to law enforcement personnel, which is conduct upstream from an official

proceeding. To confirm the details, a reader may review the appendix to this dissent, which sets forth section 1512 in its entirety.

App. 95

Third, the government’s interpretation of subsection (c)(2) would swallow up various other chapter 73

offenses outside of section 1512. Two of the most

longstanding chapter 73 offenses are sections 1503 and

1505, which trace back at least to 1909. See United

States v. Poindexter, 951 F.2d 369, 380 (D.C. Cir. 1991).

Section 1505 prohibits corruptly obstructing proceedings pending before Congress or executive agencies.

Absent an act of terrorism, it imposes a maximum sentence of five years. Under the government’s reading of

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

made surplusage by 13 words nested in a subparagraph of a subsection in the middle of section 1512.5

Section 1503 prohibits corruptly influencing a juror or

court officer and, absent an attempted killing or a class

A or class B felony, authorizes a maximum sentence of

ten years. 18 U.S.C. § 1503(b)(3). The government’s

interpretation of subsection (c)(2) makes that part of

section 1503 redundant, leaving only its separate application to acts of harming protected persons after the

fact.

To explain all this surplusage, the lead opinion

notes that section 1512(c) was enacted after the other

The government suggests that its interpretation of section

1512(c)(2) would not make section 1505 completely redundant because a “proceeding” under section 1505 might not be an “official

proceeding” under section 1512. But the government’s own Criminal Resource Manual explains that the definition of “official proceeding” in section 1515(a)(1) is largely “a restatement of the

judicial interpretation of the word ‘proceeding’ in §§ 1503 and

1505.” U.S. Dep’t of Just., Crim. Res. Manual § 1730 (1997); see

also United States v. Perez, 575 F.3d 164, 169 (2d Cir. 2009).

App. 96

provisions in question. As it notes, section 1512 reaches

acts of direct obstruction such as a defendant destroying evidence himself, as well as acts of indirect obstruction such as the defendant pressuring others to do so.

Ante at 35. And unless Congress wanted to rewrite the

entire statute, it could not reach direct obstruction

without creating some overlap with earlier provisions

reaching indirect obstruction. But the government’s interpretation does not create such massive surplusage

by reaching direct as well as indirect obstruction. Instead, it does so by so dramatically broadening what

counts as obstruction in the first place, sweeping in all

acts that affect or hinder a proceeding (including, as

explained below, such protected activities as advocacy,

lobbying, and protest).

The concurrence, for its part, again claims that my

interpretation creates the same degree of surplusage

as the government’s. Ante at 17–18 (opinion of Walker,

J.). A few illustrations rebut this assertion. Consider

section 1512(d)(1), which authorizes a three-year term

of imprisonment for anyone who harasses and thereby

hinders any person from “attending or testifying in an

official proceeding.” Someone who prevents spectators

from attending a proceeding has surely influenced or

affected the proceeding—and thus violated subsection

(c)(2) on the government’s interpretation. But that person has not impaired the integrity or availability of evidence for use in the proceeding—and thus has not

violated section 1512(c) on my interpretation. At the

other end of the penalty scheme, the same point

holds true for subsection (a)(1)(A), which authorizes

App. 97

a thirty-year sentence for attempts to kill someone to

prevent the “attendance or testimony of any person in

an official proceeding.” For both provisions, my interpretation yields partial overlap with subsection (c)(2),

in cases involving the killing or intimidation of witnesses as opposed to spectators. On the other hand, the

government’s interpretation yields complete surplusage.

Taking a step back, the concurrence is nonetheless

correct that my evidence-focused interpretation of

section 1512(c) creates significant overlap with other

provisions of section 1512. But if that counts as a significant flaw with my position, the solution is surely

not to broaden the scope of section 1512(c) to what the

government suggests, and thereby significantly increase the degree of overlap or surplusage. Instead,

the solution would be to narrow the scope of section

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

would more considerably reduce the degree of overlap

or surplusage.

The concurrence seeks to reduce this substantial

surplusage problem by imposing a heightened mens

rea requirement on section 1512(c). As the concurrence

explains, section 1512(c) requires the defendant to

have acted “corruptly,” unlike the specific-intent

crimes set forth in section 1512(a) and 1512(d). Ante at

18 (opinion of Walker, J.). But the Supreme Court has

explained that there is no “meaningful difference” between acting “corruptly” and acting with a “specific intent” to obtain some unlawful advantage. Marinello,

138 S. Ct. at 1108. This remains true even under the

App. 98

concurrence’s view that acting “corruptly” under section 1512(c) requires knowledge that one’s conduct is

unlawful. For it is highly implausible that a defendant

could intentionally perform one of the inherently obstructive acts prohibited by section 1512(a) or (d)—

such as killing or harassing a person to prevent him

from attending or testifying at an official proceeding—

without knowledge of that conduct’s unlawfulness.

Moreover, if all violations of sections 1503 and 1505 involve corrupt action, see ante at 8 (opinion of Walker,

J.), then the concurrence’s position in no way mitigates

the surplusage problem involving those provisions.

More generally, both of my colleagues note that

some degree of overlap in criminal provisions is common, no construction of section 1512(c)(2) will eliminate all surplusage, and the canons afford no basis for

preferring a construction “substituting one instance of

superfluous language for another.” United States v. Ali,

718 F.3d 929, 938 (D.C. Cir. 2013); see ante at 34–35;

ante at 18–19 (opinion of Walker, J.). All true enough,

but surplusage is nonetheless disfavored; other things

equal, a construction that creates substantially less of

it is better than a construction that creates substantially more. Here, the government’s interpretation of

subsection (c)(2) would swallow up all of the immediately preceding subsection (c)(1), most of section 1512,

and much of the entire chapter 73, reaching dozens of

offenses covering much narrower acts and authorizing

much lower penalties. I am unaware of any case resolving ambiguity in favor of such wholesale redundancy.

App. 99

The interpretive canons of ejusdem generis and

noscitur a sociis also support a restrained interpretation of section 1512(c). As explained above, these canons reflect linguistic conventions that must factor into

the initial assessment whether that provision is ambiguous. They also support resolving any ambiguity in

favor of the defendants.

Begin with ejusdem generis. It “limits general

terms that follow specific ones to matters similar to

those specified.” CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 294 (2011) (cleaned up); see Guardianship Estate of Keffeler, 537 U.S. at 384. And it

“applies when a drafter has tacked on a catchall phrase

at the end of an enumeration of specifics.” Scalia &

Garner, supra, at 199. Here, all agree that subsection

(c)(2) is a catchall phrase tacked on after the specific

offenses set forth in subsection (c)(1).

Noscitur a sociis, or the associated-words canon,

provides that “a word is given more precise content by

the neighboring words with which it is associated.”

Williams, 553 U.S. at 294. Often, such an association

must be inferred from statutory structure or other contextual clues. E.g., Dole v. United Steelworkers of Am.,

494 U.S. 26, 36 (1990) (“words grouped in a list should

be given related meaning”). But here, the word otherwise directly signals that the subsections are associated. And interpreting the catchall subsection (c)(2) in

light of the specific examples in subsection (c)(1) is

App. 100

particularly appropriate given the relative complexity

of the examples and breadth of the catchall.

My colleagues argue that both canons are irrelevant because “the word ‘otherwise’ does not immediately follow a list of terms” and is in a separate

subparagraph from subsection (c)(1). Ante at 29. But

“a listing is not prerequisite” for applying the associated-words canon. Scalia & Garner, supra, at 197. And

courts have applied ejusdem generis “to all sorts of syntactic constructions that have particularized lists followed by a broad, generic phrase.” Id. at 200. Thus,

while a syntactically parallel listing—like “dogs, cats,

and other animals,” see ante at 29—is one way

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