Amicus Curiae Brief — Joseph W. Fischer, Petitioner v. United States

No. 23-5572

IN THE

Supreme Court of the United States

_________

JOSEPH W. FISCHER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

_________

BRIEF OF U.S. SENATOR TOM COTTON,

REPRESENTATIVE JIM JORDAN, AND 21

OTHER MEMBERS OF CONGRESS AS AMICI

CURIAE IN SUPPORT OF PETITIONER

JOSEPH W. FISCHER

_________

GENE P. HAMILTON

AMERICA FIRST LEGAL

FOUNDATION

611 Pennsylvania Ave.

S.E., No. 231

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

R. TRENT MCCOTTER

Counsel of Record

CALEB ORR

BOYDEN GRAY PLLC

801 17th St. NW,

Suite 350

Washington, DC 20006

(202) 706-5488

tmccotter@boydengray.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii

INTEREST OF THE AMICI CURIAE ..........................1

SUMMARY OF THE ARGUMENT ...............................3

ARGUMENT ..................................................................4

I. The Majority Opinion Below Disregarded and

Misapplied Numerous Rules of Statutory

Construction. ............................................................ 4

A. The Majority Opinion Creates Nearly

“Complete” Surplusage of Section 1512 .......... 5

B. The Majority Opinion Disregarded the

Historical Context of Section 1512(c)(2).......... 9

C. The Majority Erroneously Disregarded the

Textual Link Between Sections 1512(c)(1) and

1512(c)(2) ........................................................ 12

II. The Government’s Broad View of Section 1512(c)(2)

Turns It into a Weapon for Political Prosecution . 16

A. The Government’s Interpretation Would

Criminalize Political Conduct ....................... 16

B. The Government Is Already Using Section

1512(c)(2) to Prosecute Political Opponents . 24

C. The Government Has Consistently Declined to

Apply Its Own Interpretation of Section

1512(c)(2) to Political Sympathizers ............. 28

CONCLUSION ............................................................ 32

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) ............................................ 25

Begay v. United States,

553 U.S. 137 (2008) ................................................ 13

Biden v. Nebraska, 143 S. Ct. 2355 (2023) ................. 25

BNSF Ry. Co. v. Loos,

139 S. Ct. 893 (2019) ................................................ 7

Bond v. United States,

572 U.S. 844 (2014) .......................................9, 18, 19

CSX Transp., Inc. v. Ala. Dep’t of

Revenue, 562 U.S. 277 (2011) ................................ 13

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) ............................................ 24

Edwards v. South Carolina,

372 U.S. 229 (1963) ................................................ 19

Jennings v. Rodriguez,

583 U.S. 281 (2018) ................................................ 19

Marinello v. United States,

138 S. Ct. 1101 (2018) ............................................ 17

iii

McDonnell v. United States,

579 U.S. 550 (2016) ...........................................19, 28

NFIB v. OSHA, 595 U.S. 109 (2022) .......................... 25

Reno v. Koray, 515 U.S. 50 (1995) ...........................4, 16

UARG v. EPA, 573 U.S. 302 (2014) ............................ 14

United States v. Aguilar,

515 U.S. 593 (1995) ................................................ 10

United States v. Hansen,

599 U.S. 762 (2023) ................................................ 19

United States v. Miller,

589 F. Supp. 3d 60 (D.D.C. 2022) ............................ 6

United States v. Poindexter,

951 F.2d 369 (D.C. Cir. 1991) ................................ 10

United States v. Robertson,

86 F.4th 355 (D.C. Cir. 2023) ................................ 20

United States v. Williams,

553 U.S. 285 (2008) ................................................ 12

United States v. Wong Kim Ark,

169 U.S. 649 (1898) .................................................. 7

Van Buren v. United States,

141 S. Ct. 1648 (2021) ............................................ 19

Yates v. United States,

574 U.S. 528 (2015) .............................................8, 13

iv

Statutes

2 U.S.C. § 1602 ............................................................ 17

18 U.S.C. § 152 ............................................................ 10

18 U.S.C. § 1505 .......................................................8, 10

18 U.S.C. § 1512(a) ...................................................6, 11

18 U.S.C. § 1512(b) ...................................................9, 11

18 U.S.C. § 1512(c)(1) .............................................12, 14

18 U.S.C. § 1512(c)(2) ......... 1, 3–7, 9, 12–18, 20, 21, 24,

26–31

18 U.S.C. § 1512(f) ....................................................... 11

18 U.S.C. § 1517 .......................................................... 10

18 U.S.C. § 1752 .......................................................... 25

40 U.S.C. § 5104 .......................................................... 25

40 U.S.C. § 5109 .......................................................... 25

Sarbanes-Oxley Act of 2002, Pub. L. No.

107-204, tit. XI, 116 Stat. 745 ................................. 9

Victim and Witness Protection Act of

1982, Pub. L. No. 97-291, 96 Stat.

1248 (1982) ............................................................. 10

v

Other Authorities

148 Cong. Rec. 12517 (2002) ....................................... 11

S. Rep. No. 97-532 (1982) ............................................ 10

S. Rep. No. 107-146 (2002) ............................................ 9

Memorandum of Bill Barr to Deputy Att’y

Gen. Rod Rosenstein & Assistant Att’y

Gen. Steve Engel (June 8, 2018) ........................... 27

Jennifer Bendery, Progressives Storm

Senators’ Offices to Confront Them on

Votes for Trump’s Judges, Huffington

Post (Sept. 11, 2019) .............................................. 30

Jamelle Bouie, There’s No Such Thing as

a Good Trump Voter, Slate (Nov. 15,

2016) ....................................................................... 22

Jason Breslow, The Resistance at the

Kavanaugh Hearings: More Than 200

Arrests, Nat’l Pub. Radio (Sept. 8,

2018) ....................................................................... 30

Stephanie Condon, Congressional Phones

Jammed After Obama Appeal to

Contact Lawmakers, CBS News (July

26, 2011) ................................................................. 17

Sara Dorn, Dozens Arrested in Latest

Capitol Protest Calling for IsraelHamas Cease-Fire, Forbes (Dec. 11,

2023) ....................................................................... 29

vi

Kim Hart, Exclusive Poll: Most Democrats

See Republicans As Racist, Sexist,

Axios (Nov. 12, 2018) ............................................. 22

Harold Hutchison, ‘We Are at War with

These People’: MSNBC Guest Claims

Trump Supporters Are ‘Evil’, Daily

Caller News Found. (Sept. 4, 2022)....................... 22

Matthew Impelli, Protesters Rush

Hallway Outside of Jim Jordan’s

Hearing Against Alvin Bragg,

Newsweek (Apr. 17, 2023) ..................................... 30

Colby Itkowitz & John Wagner, Biden

Says Trump Is America’s First ‘Racist’

President, Wash. Post (July 22, 2020) ................... 22

Pew Res. Ctr., As Partisan Hostility

Grows, Signs of Frustration With the

Two-Party System (Aug. 9, 2022) .......................... 22

Antonin Scalia & Brian A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) .................................................. 13

Rowan Scarborough, ‘Tribal’ D.C. Juries

Align with Biden and Democrats,

Wash. Times (May 25, 2022) ................................. 23

Mychael Schnell, House Sends Senate Bill

to Avert Government Shutdown, The

Hill (Sept. 30, 2023) ............................................... 29

vii

Adam Serwer, The Cruelty Is the Point,

The Atlantic (Oct. 3, 2018) .................................... 22

Andrew Solender & Cuneyt Dil, Bowman

Pleads Guilty to Pulling Capitol Hill

Fire Alarm, Axios (Oct. 25, 2023) .......................... 22

Jason Willick, Why the Jamaal Bowman

Fire Alarm Scandal Will Keep

Burning, Wash. Post. (Nov. 1, 2023) ..................... 29

Ethan Zuckerman, The Capitol Rioters

Are Giving Insurrection a Bad Name,

The Atlantic (Jan. 19, 2021) .................................. 18

Dep’t of Just., Sentences Imposed in

Cases Arising Out of the Events of

January 6, 2021 (Jan. 5, 2024) .............................. 26

U.S. Att’y’s Off., D.C., Three Years Since

the Jan. 6 Attack on the Capitol (Jan.

5, 2024), http://tinyurl.com/y749ysn5 ................... 26

1

INTEREST OF THE AMICI CURIAE 1

Amici curiae are United States Senator Tom

Cotton, Representative Jim Jordan, and 21 other

members of Congress. The full list of amici is below.

As members of Congress, amici have a strong

interest in securing a proper interpretation of Section

1512(c)(2), which Congress created when it enacted

the Corporate Fraud Accountability Act of 2002. See

18 U.S.C. § 1512(c)(2). Several amici sit on

Committees that oversee matters related to the Act,

including the Senate Committee on the Judiciary; the

Senate Committee on Banking, Housing, and Urban

Affairs; the House Committee on the Judiciary; and

the House Committee on Financial Services.

Amici also have a strong interest in ensuring that

courts properly apply canons of construction that

Congress relies on for certainty regarding the effect of

legislation in its drafting and enacting of public laws.

However, the D.C. Circuit’s decision below failed to

apply those canons properly, thereby expanding

Section 1512(c) beyond its permissible meaning.

If allowed to stand, the lower court’s decision will

only reward and incentivize politically motivated uses

of ill-fitting criminal statutes with harsh penalties.

1

No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from amici curiae, and their

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

2

The following is the full list of amici:

United States Senate

Tom Cotton (AR)

Kevin Cramer (ND)

Mike Lee (UT)

United States House of Representatives

Jim Jordan (OH-04)

Cliff Bentz (OR-02)

Lauren Boebert (CO-03)

Jerry Carl (AL-01)

Michael Cloud (TX-27)

Matt Gaetz (FL-01)

Lance Gooden (TX-05)

Marjorie Taylor Greene (GA-14)

Harriet M. Hageman (WY)

Diana Harshbarger (TN-01)

Lisa McClain (MI-09)

Mary Miller (IL-15)

Alex Mooney (WV-02)

Barry Moore (AL-02)

Andy Ogles (TN-05)

Bill Posey (FL-08)

Guy Reschenthaler (PA-14)

Matt Rosendale (MT-02)

Tom Tiffany (WI-07)

Michael Waltz (FL-06)

3

SUMMARY OF THE ARGUMENT

The D.C. Circuit held by a 2-1 vote that Section

1512(c)’s criminalization of destroying records,

documents, or other objects, or otherwise obstructing,

influencing, or impeding an official proceeding

unambiguously encompasses “all forms of obstructive

acts,” including entering the Capitol building on

January 6, 2021. That expansive interpretation—

which coincides with the Department of Justice’s

interpretation—was wrong, and it has predictably led

to arbitrary and politicized prosecutions.

The statutory context of Section 1512(c)(2), in

particular, which Congress created in the aftermath

of the Enron scandal, limits its coverage to the

impairment of evidence like records and documents.

It is a subsection within a section titled “Tampering

with a witness, victim, or an informant.” The majority

below instead read Section 1512(c)(2) in isolation,

found that it unambiguously encompassed any form of

obstruction of an official proceeding, and concluded all

contrary contextual evidence was irrelevant. See Part

I, infra.

The majority opinion’s expansive interpretation of

Section 1512(c)(2) has serious constitutional

implications. It criminalizes political conduct and

grants the Department of Justice nearly unfettered

discretion to prosecute Americans based on the

perceived morality of their political beliefs. The

government has gone after hundreds of perceived

violations of Section 1512(c)(2)—ranging from

January 6 defendants to former President Trump

himself—except when it involves someone whose

4

political

views

administration’s.

align

with

the

current

Selective prosecutions are entirely predictable

when courts interpret a harsh criminal statute far too

broadly, especially when that expanded scope covers

the political process.

This Court should reverse the decision below.

ARGUMENT

I.

The Majority Opinion Below Disregarded

and Misapplied Numerous Rules of

Statutory Construction.

“[I]t 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).

The majority opinion violated this “fundamental”

rule of statutory construction by insisting that Section

1512(c)(2) be interpreted “consider[ing] nothing

outside the four corners of subsection (c)(2).”

Pet.App.69a (Katsas, J., dissenting). That led the

majority to conclude prematurely (and mistakenly)

that Section 1512(c)(2) is “unambiguous” and, thus,

that any resort to statutory context was unnecessary

and irrelevant. Pet.App.26a.

But the court below was required to consider

statutory context as part of deciding whether Section

1512(c)(2) is ambiguous, not afterwards. If it had

properly undertaken the process of statutory analysis,

the majority would have reached the same conclusion

5

as Judge Katsas: Section 1512(c)(2) “covers only acts

that impair the integrity or availability of evidence.”

Pet.App.91a (Katsas, J., dissenting).

A.

The Majority Opinion Creates

Nearly “Complete” Surplusage of

Section 1512.

The majority and Judge Katsas agreed that “no

construction of section 1512(c)(2) will eliminate all

surplusage.”

Pet.App.86a–87a

(Katsas,

J.,

dissenting); Pet.App.36a (majority op.). But the

majority concluded that because both views result in

surplusage, the canon against surplusage was of no

aid whatsoever, as the court would simply be

“‘substituting one instance of superfluous language

for another.’” Pet.App.36a. That mistaken view led the

majority to ignore overwhelming contextual evidence

that its interpretation of Section 1512(c)(2) was

wrong.

When it comes to statutory interpretation,

surplusage is disfavored, and more surplusage is more

disfavored. See Pet.App.87a (Katsas, J., dissenting)

(“[A] construction that creates substantially less of it

is better than a construction that creates

substantially more.”). Petitioner’s interpretation

would create minor overlap between provisions, but

the “government’s interpretation yields complete

surplusage.” Pet.App.85a (Katsas, J., dissenting).

Judge Katsas explained that Section 1512 includes

twenty other provisions, each of which is narrowly

focused, and “at least 15” of them would be rendered

superfluous by the government’s and majority

opinion’s broad view of Section 1512(c)(2).

6

Pet.App.82a (Katsas, J., dissenting). After all, if

Section 1512(c)(2) outlaws any and all obstructing,

influencing, or impeding of any official proceeding,

there would have been no point in listing separate

provisions covering, for example, killing a person to

prevent his attendance at an official proceeding

(covered by Section 1512(a)(1)(A)), or to prevent the

production of a record, document, or other object in an

official

proceeding

(covered

by

Section

1512(a)(1)(B))—or any of another dozen narrowly

defined actions already covered elsewhere in Section

1512. Pet.App.83a (Katsas, J., dissenting).

That superfluity is even more inexplicable when

one considers that the numerous provisions rendered

superfluous have significant disparities in maximum

penalties, from three years up to thirty years. Id. The

“government’s interpretation”—adopted by the

majority below—“collapse[s] all of this, making any

form of obstructing an official proceeding a 20-year

felony” under Section 1512(c)(2). Pet.App.90a (Katsas,

J., dissenting).

Under the government’s and majority’s view,

Congress provided a reticulated scheme covering

narrowly defined acts involving evidence and records,

as well as their resulting penalties—and then

obliterated that scheme with one omnibus provision

buried “in a subsection of a subsection nestled in the

middle of the statute.” United States v. Miller, 589 F.

Supp. 3d 60, 73 (D.D.C. 2022) (Nichols, J.). Congress

does not write statutes that way.

The majority opinion responded that this

extraordinarily level of superfluity “is easily explained

7

by the fact that Congress drafted and enacted that

subsection after the rest of § 1512.” Pet.App.36a. That

is unpersuasive for numerous reasons.

First, the majority provided no authority for the

notion that the canon against superfluity no longer

applies once Congress amends a statute. This Court

has long held the opposite, requiring that courts

construe subsequent amendments in light of the entire

statute and its history. United States v. Wong Kim

Ark, 169 U.S. 649, 653–54 (1898). The majority failed

to follow that rule and effectively adopted a conflicting

rule that statutes no longer must be read as a whole

after there has been an amendment.

Second, it’s telling that the majority suddenly felt

compelled to turn to statutory history 2 in an attempt

to salvage its unconvincing interpretation, because

just a few pages earlier, the majority opinion said that

resorting to statutory history was inappropriate given

its conclusion that Section 1512(c)(2) was

unambiguous.

Compare

Pet.App.36a,

with

Pet.App.31a. This internal inconsistency should have

led the majority at least to recognize that it was

mistaken in having previously concluded that Section

1512(c)(2) was “unambiguous.” Pet.App.11a. Instead,

the majority insisted that its previously-determined

interpretation of Section 1512(c)(2) was completely

2

The majority also seems to have conflated “legislative history,”

Pet.App.31a, with “statutory history.” See, e.g., BNSF Ry. Co. v.

Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting)

(contrasting “unenacted legislative history” with “the record of

enacted changes Congress made to the relevant statutory text

over time”).

8

unaffected by the immense superfluity it would

create.

Third, Congress’s amendment to include

1512(c)(2) supports Petitioner because Congress

aimed to close a loophole, not blow open the entire

statute, as explained below. See Part I.B, infra.

The majority also argued that “[i]f Congress’s goal

were to criminalize a subset of obstructive behavior, it

easily could have used words that precisely define

that subset,” and “[i]n fact, Congress enacted exactly

that kind of precise directive in § 1505 and in § 1519,

the latter at the same time as § 1512(c).” Pet.App.27a.

The majority criticizes the relatively minor overlap

caused by Petitioner’s interpretation while ignoring

that its own interpretation eliminates 75% of the

entire statute. The majority’s reliance on Section 1519

is especially unpersuasive because, as several

members of this Court have argued, Congress’s

enactment of both Sections 1512(c) and 1519 was

likely nothing more than “belt-and-suspenders

caution.” Yates v. United States, 574 U.S. 528, 562–

63 (2015) (Kagan, J., joined by Scalia, Kennedy, and

Thomas, JJ., dissenting).

It is undisputed that either side’s interpretation

will result in some surplusage. But at every turn, the

majority resisted the obvious point that less

surplusage is preferred over “complete surplusage.”

Pet.App.85a (Katsas, J., dissenting). If the majority

below had addressed this statutory context as part of

its statutory interpretation, rather than as an

afterthought, it would have reached the same

conclusion as Judge Katsas.

9

B.

The Majority Opinion Disregarded

the Historical Context of Section

1512(c)(2).

When interpreting a statute, a court must consider

“the context from which the statute arose,” Bond v.

United States, 572 U.S. 844, 860 (2014), which here

demonstrates that Section 1512(c)(2) is limited to

evidentiary impairment.

Congress enacted Section 1512(c) as the first

provision of the Corporate Fraud Accountability Act of

2002, which was part of the larger Sarbanes-Oxley Act

of 2002. Pub. L. No. 107-204, tit. XI, § 1102, 116 Stat.

745, 807. Like many other provisions in SarbanesOxley, Section 1512(c) was included to address

financial crime. Congress enacted Sarbanes-Oxley in

part because of a major accounting fraud scandal

involving Enron Corporation that resulted in the

company’s collapse in 2001. See S. Rep. No. 107-146

(2002). Leading up to its collapse, Enron and the

accounting firm Arthur Andersen falsified company

financial statements that would have revealed

immense financial losses. Id. at 3. When the SEC

began investigating, Arthur Andersen partners

allegedly directed the firm’s employees to shred

documents that evidenced the fraud. Id. at 4.

The Corporate Fraud Accountability Act aimed to

patch a loophole in how federal obstruction of justice

statutes applied to the frauds revealed in the Enron

scandal. See id. at 6. Prior to Sarbanes-Oxley, Section

1512 made it a crime “to persuade another person to

destroy documents, but not a crime for a person to

destroy the same documents personally.” Id.; see 18

10

U.S.C. § 1512(b)(2) (prohibiting efforts to “persuade[]

another person” to “alter, destroy, mutilate, or conceal

an object with intent to impair the object’s integrity or

availability for use in an official proceeding”). That is

because Section 1512 was primarily a “‘witness

tampering’ statute.” S. Rep. No. 107-146 at 7. In its

origin, Section 1512 aimed to “protect[] victims and

witnesses from intimidation,” such as by intimidating

witnesses into destroying evidence, Victim and

Witness Protection Act of 1982, Pub. L. No. 97-291, §

4, 96 Stat. 1248, 1249 (1982); S. Rep. No. 97-532, 1982

WL 25068, at *16 (1982), rather than criminalize the

personal destruction of evidence per se. For that, other

obstruction-of-justice statutes applied. See United

States v. Poindexter, 951 F.2d 369, 382 (D.C. Cir.

1991).

Other statutes covered personal destruction of

evidence, but Congress perceived that they were

limited to contexts that did not apply to the Enron

scandal. Section 1503 criminalizes the obstruction of

justice, but the acts must have sufficient “nexus” in

time, causation, and logic to a pending judicial

proceeding. United States v. Aguilar, 515 U.S. 593,

599 (1995); see also 18 U.S.C. § 1505 (criminalizing

obstruction

of

agency

and

congressional

investigations). Section 152(8) applies to destroying

financial books and records, but only after a

bankruptcy case has been filed. 18 U.S.C. § 152(8).

Still others apply in different contexts. See 18 U.S.C.

§ 1517 (criminalizing obstruction of financial

institution examinations); id. § 1518 (criminalizing

obstruction of communicating records relating to

federal health care offenses).

11

This loophole became apparent when the

Department of Justice began prosecuting Arthur

Andersen. Prosecutors were “forced to use [§ 1512]

under the legal fiction that the defendants are being

prosecuted for telling other people to shred

documents, not simply for destroying evidence

themselves.” S. Rep. No. 107-146 at 7.

Congress “close[d] this loophole” by creating

Section 1512(c) as part of the Corporate Fraud

Accountability Act of 2002. 148 Cong. Rec. 12517

(2002) (remarks of Sen. Orrin Hatch). Unlike the

existing Section 1512, which applied to evidentiary

impairment caused by “another person,” the new

Section 1512(c) applied to “whoever” did it. As the

bill’s sponsors explained, this change cut out the

middleman to “permit the government to prosecute an

individual who acts alone in destroying evidence.” Id.;

see also id. at 12512 (remarks of Sen. Trent Lott). 3

Section 1512(c) thus broadened who could be

charged for tampering with evidence. But it did not

broaden the scope of prohibited conduct beyond

evidentiary impairment. That focus remains in the

current Section 1512, which mentions “record,”

“document,” or other “object” a total of 26 times. See

18 U.S.C. §§ 1512(a)(1)(B); 1512(a)(2)(B)(i);

1512(a)(2)(B)(ii); 1512(a)(2)(B)(iii); 1512(b)(2)(A);

1512(b)(2)(B); 1512(b)(2)(C); 1512(c)(1); 1512(f).

3

Several senators described the provision as a law against

“document shredding.” See 148 Cong. Rec. at 12512 (remarks of

Sen. Trent Lott); id. at 12513 (remarks of Sen. Joseph Biden); id.

at 12517 (remarks of Sen. Orrin Hatch).

12

The majority opinion below acknowledged some of

this statutory history and context but just as quickly

dismissed it by stating that “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.” Pet.App.32a. But that just begs

the question. Determining whether Section 1512(c)(2)

is “plain” and ambiguous turns in part on statutory

context, such as Section 1512’s overwhelming focus on

documents and evidence, but the majority simply

refused to consider that context by pointing to its prior

conclusion that the text was plain.

Just as with its analysis on surplusage, see Part

I.A, supra, the majority prematurely concluded the

statute was unambiguous and then rejected all

contrary statutory context as inconsistent with that

purported unambiguity. That is not how statutory

interpretation works.

C.

The

Majority

Erroneously

Disregarded the Textual Link

Between Sections 1512(c)(1) and

1512(c)(2).

The majority also erred by concluding that the

“otherwise” clause in Section 1512(c)(2) connotes no

narrowing based on the preceding list of prohibited

actions (i.e., “alters, destroys, mutilates, or conceals a

record, document, or other object … with the intent to

impair,” 18 U.S.C. § 1512(c)(1)).

Noscitur a sociis provides that “a word is given

more precise content by the neighboring words with

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

13

U.S. 285, 294 (2008). This Court has already applied

this canon to Sarbanes-Oxley to constrain the

meaning of the seemingly broad phrase “tangible

object” by noting that the preceding list included

terms like “record[s]” and “document[s].” Yates, 574

U.S. at 544 (cleaned up). Like the statute in Yates, the

residual clause here “is the last in a list of terms that

begins ‘any record or document’” and “is therefore

appropriately read to refer, not to any [form of

obstruction], but specifically to the subset of

[obstruction] involving records and documents, i.e.,

[obstruction of] record[s] or preserv[ing] information.”

Id. (cleaned up); see also Begay v. United States, 553

U.S. 137, 143 (2008).

The canon ejusdem generis similarly “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). That includes a “catchall phrase” like the

“otherwise” clause in Section 1512(c)(2). Antonin

Scalia & Brian A. Garner, Reading Law: The

Interpretation of Legal Texts 199 (2012).

Accordingly, the use of “otherwise” in Section

1512(c)(2) “connote[s] … similarity” to the

aforementioned terms. Pet.App.73a (Katsas, J.,

dissenting). To be sure, one could debate precisely how

much similarity is connoted. As Judge Katsas

explained, Section 1512(c)(2) most likely covers

matters regarding evidence, not just physical evidence

as the district court had concluded, but that difference

does not matter here because Petitioner has not been

charged with “any action affecting physical or other

14

evidence.” Pet.App.78a–79a (Katsas, J., dissenting)

(emphases added).

Given this, it’s no surprise that “there is no

precedent for using § 1512(c)(2) to prosecute the type

of conduct at issue in this case.” Pet.App.17a. The

majority and government could not identify a single

case ever brought under Section 1512(c)(2) that did

not involve evidentiary matters. Pet.App.15a.

Typically, when the government claims to have

“discover[ed] in a long-extant statute an unheralded

power”—e.g., charging trespassers with a twenty-year

felony—a court should “greet [the government’s]

announcement” of this new authority “with a measure

of skepticism.” UARG v. EPA, 573 U.S. 302, 324

(2014).

Instead, the majority opinion below persisted in its

view, concluding that “otherwise” in Section 1512(c)(2)

is in no way narrowed by the preceding list in Section

1512(c)(1). The majority rested primarily on the fact

that “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).” Pet.App.29a.

As Judge Katsas explained, the majority’s view is

inconsistent with how Congress drafts statutes.

Pet.App.74a (Katsas, J., dissenting). Drafting

guidelines recommend that text be “broken into

subsections and subparagraphs ‘to the maximum

extent practicable.’” Id. (cleaned up) (quoting House

Off. Legis. Couns., House Legislative Counsel’s

Manual on Drafting Style, HLC No. 104.1, § 312, at 24

15

(1995); citing Senate Off. Legis. Couns., Legislative

Drafting Manual § 112, at 9–11 (1997)).

Further, any listing of items followed by

“otherwise” can be converted into a listing of separate

subsections without changing the meaning at all (and

vice versa). Pet.App.74a (Katsas, J., dissenting). The

line spacing doesn’t matter; what matters is that the

use of “otherwise” necessarily invokes “the

connotation of similarity.” Id.

That connotation is especially strong when the

preceding list includes numerous similarly related

and narrow examples. Pet.App.75a (Katsas, J.,

dissenting). “The long, reticulated list of examples in

subsection (c)(1) makes it even more implausible that

subsection (c)(2) would render them meaningless.” Id.

That is why Judge Pan (who was not joined by any

other judge on this point) had it exactly backwards

when she claimed that the admittedly complex nature

of the interaction between provisions subsection (c)(1)

and subsection (c)(2) somehow supports giving a

maximalist interpretation to the latter. Pet.App.40–

41a n.8 (Pan, J.).

***

The government and majority opinion below could

reach their interpretation of Section 1512(c)(2) only by

reading that provision in isolation, declaring it

unambiguous, and then subsequently rejecting all

contrary contextual evidence as irrelevant to that

allegedly unambiguous text. That has it backwards.

The statutory context must be considered as part of a

court’s statutory construction, not viewed as an

16

irrelevant formality to be rejected after the fact. See

Koray, 515 U.S. at 56.

II.

The Government’s Broad View of Section

1512(c)(2) Turns It into a Weapon for

Political Prosecution.

The government’s “‘breathtaking’” interpretation

of Section 1512(c)(2), Pet.App.42a (Walker, J.,

concurring in part and concurring in the judgment),

turns it into an extraordinarily serious weapon for

selective prosecution against disfavored political

conduct.

Indeed, the unstated but universally recognized

reason the government has insisted on using Section

1512(c)(2) for January 6 defendants is because it

carries such lengthy prison sentences. The

government has begun using Section 1512(c)(2) as its

all-purpose weapon against perceived political

opponents, even now charging President Trump and

seeking his imprisonment for up to twenty years. In

short, the government’s view of Section 1512(c)(2)

presents an intolerable risk of politicized

prosecutions. Only a clear rebuke from this Court will

stop the madness.

A.

The Government’s Interpretation

Would

Criminalize

Political

Conduct.

The government’s sweeping interpretation of

Section 1512(c)(2) would cover protected political

activities. Under the government’s view, Section

1512(c)(2) can apply to any act that “obstructs,

influences, or impedes” an official proceeding. As this

Court has explained, “obstruct” or “impede[]” involves

17

anything that affects or hinders the proceeding. See

Marinello v. United States, 138 S. Ct. 1101, 1106

(2018). In other words, the government would have

Section 1512(c)(2) apply to acts that merely intend to

affect any official proceeding.

“[T]hat construction would sweep in advocacy,

lobbying, and protest—common mechanisms by which

citizens attempt to influence official proceedings.”

Pet.App.94a (Katsas, J., dissenting). Advocacy,

lobbying, and protest are common exercises of

political expression. Acting to “influence” government

proceedings toward some favored goal is practically a

definition of political activity.

The government’s interpretation would encompass

not only lobbying 4 but all kinds of public-interest

advocacy. Activist groups frequently organize issue

campaigns to flood congressional offices’ phone lines

and websites. See, e.g., Stephanie Condon,

Congressional Phones Jammed After Obama Appeal

to Contact Lawmakers, CBS News (July 26, 2011),

http://tinyurl.com/4smma35d.

Advocacy

groups

throughout history have organized trips to

Washington timed to congressional or executive

consideration of favored items. Most famously, the

1963 civil rights “March on Washington” “was

designed to force President Kennedy to support the

Civil Rights Act” then pending in Congress. Ethan

Zuckerman, The Capitol Rioters Are Giving

4

See 2 U.S.C. §§ 1602(8), 1602(8)(B)(v) (defining “lobbying

contact” to include “an attempt to influence” executive branch

and legislative branch officials with regard to government

proceedings).

18

Insurrection a Bad Name, The Atlantic (Jan. 19,

2021), http://tinyurl.com/f6wm7pab.

Moreover, Section 1512(c)(2) applies to executive

and congressional proceedings, so it is not limited just

to some narrow segment or type of proceedings. And

as Judge Katsas explained below, unlike Title 18’s

other

obstruction-of-justice

statutes,

the

government’s view of Section 1512(c)(2) also isn’t

limited to “directly imping[ing] on a proceeding’s

truth-seeking function through acts such as bribing a

decisionmaker or falsifying evidence presented to

it.” Pet.App.94a (Katsas, J., dissenting). In the

government’s eyes, any potential “influence” could

apparently harm the integrity of the proceeding.

Accordingly, the government’s construction would

allow any enterprising federal prosecutor to charge

Section 1512(c)(2)—with a maximum penalty of

twenty years in prison—for anything deemed to have

sufficiently affected almost any aspect of the federal

legislative or executive functions. Informal lobbying

and grassroots activities against some legislative or

executive goal of the President would be subject to a

serious felony charge.

Even outside the context of statutes that sweep in

constitutionally protected activity, this Court has

repeatedly

rejected

“improbably

broad”

interpretations of criminal statutes that would reach

large swaths of previously non-criminal conduct.

Bond, 572 U.S. at 860; see, e.g., Dubin v. United

States, 599 U.S. 110, 130 (2023) (rejecting

interpretation of identity theft statute that “would

sweep in the hour-inflating lawyer, the steak-

19

switching waiter, the building contractor who tacks

an extra $10 onto the price of the paint he

purchased”); Van Buren v. United States, 141 S. Ct.

1648, 1661 (2021) (rejecting interpretation of

computer fraud statute that “would attach criminal

penalties to a breathtaking amount of commonplace

computer activity”); McDonnell v. United States, 579

U.S. 550, 574–76 (2016) (rejecting “expansive

interpretation” of bribery statute that would reach

“normal political interaction between public officials

and their constituents”); Bond, 572 U.S. at 863

(rejecting interpretation that would turn chemical

weapons statute “into a massive federal antipoisoning regime that reaches the simplest of

assaults”).

The case against such an improbably broad

interpretation is even stronger when it would set up a

“constitutional collision,” as the “prospect of

unconstitutional applications” should instead “urge a

narrower construction” of the statute. United States v.

Hansen, 599 U.S. 762, 781 (2023) (cleaned up); see,

e.g., Jennings v. Rodriguez, 583 U.S. 281, 296 (2018)

(“When a serious doubt is raised about the

constitutionality of an Act of Congress, it is a cardinal

principle that this Court will first ascertain whether

a construction of the statute is fairly possible by which

the

question

may

be

avoided.”)

(cleaned

up). Advocacy, lobbying, and protest before the

political branches are protected political expression

under the First Amendment. E.g., Edwards v. South

Carolina, 372 U.S. 229, 235–36 (1963).

Constitutional avoidance, therefore, provides yet

another basis for reversing the decision below and

20

interpreting Section 1512(c)(2) as covering only

actions related to evidentiary matters. Pet.App.94a–

95a (Katsas, J., dissenting).

Rather than tempering her view in light of its

resulting First Amendment problems, Judge Pan (not

joined by any other judge) leaned on the

statute’s mens rea requirement (“corruptly”) to

“prevent[] subsection (c)(2) from sweeping up a great

deal of conduct that has nothing to do with

obstruction.” Pet.App.18a (Pan, J.).

Judge Pan declined in this case to adopt any

particular definition of “corruptly,” instead deciding

that whatever it means, the allegations against

Petitioner were sufficient. Pet.App.18a (Pan, J.).

Ironically, just a few months later, Judge Pan herself

wrote the majority opinion in a separate case holding,

over a strong dissent by Judge Henderson, that

“corruptly” in Section 1512(c)(2) is satisfied whenever

the defendant “used felonious ‘unlawful means’ to

obstruct, impede, or influence the Electoral College

vote certification.” United States v. Robertson, 86

F.4th 355, 364 (D.C. Cir. 2023). That is circular.

Accordingly, whenever a defendant violates the other

elements of Section 1512(c), he also corruptly violates

it, proving that Judge Pan was wrong when she

insisted here that “corruptly” would meaningfully

cabin Section 1512(c)(2)’s reach.

Indeed, Judge Pan never grappled with how any of

her definitions of “corruptly” “would cure the

improbable breadth created by an all-encompassing

view” of Section 1512(c)(2). Pet.App.95a (Katsas, J.,

dissenting). In fact, her two competing views of

21

“corruptly” actually worsen the First Amendment

concerns.

One such proffered definition requires the

defendant to have acted “‘with a hope or expectation

of either financial gain or other benefit to oneself or a

benefit of third person.’” Pet.App.19a (Pan, J.). In

Judge Pan’s view, however, the “benefit” that

Petitioner and other January 6 defendants sought

was to “overturn the election results.” Id. That is

inherently circular in the context of political advocacy,

which by definition seeks to obtain the change for

which the person has advocated. As Judge Katsas

explained, a “firearms lobbyist would be covered if he

sought a ‘benefit’ of less stringent gun regulations.”

Pet.App.99a (Katsas, J., dissenting).

Judge Pan’s other potential definition of

“corruptly” fails just as badly at limiting the scope of

abuse for Section 1512(c)(2). This second definition

looks to whether the defendant’s conduct was

“‘wrongful, immoral, depraved, or evil.’” Pet.App.18a

(Pan, J.). This subjective definition invites

prosecutorial scrutiny of the supposed moral content

of defendants’ political beliefs and motivations. Judge

Katsas’s hypothetical illustrates the problem:

Imagine a tobacco or firearms lobbyist

who persuades Congress to stop

investigating how many individuals are

killed by the product. Would the lobbyist

violate section 1512(c)(2) because his

conduct was ‘wrongful’ or ‘immoral’ in

some abstract sense?

Pet.App.96a (Katsas, J., dissenting).

22

In today’s polarized age, many view those with

different political beliefs as being immoral or evil. See

Kim Hart, Exclusive Poll: Most Democrats See

Republicans As Racist, Sexist, Axios (Nov. 12, 2018),

http://tinyurl.com/2dm8e4ez; Pew Res. Ctr., As

Partisan Hostility Grows, Signs of Frustration With

the Two-Party System 47 (Aug. 9, 2022),

http://tinyurl.com/yxtayyjr (“Today, majorities in both

parties . . . view members of the opposing party as

more immoral.”). And it is undeniable that some

reserve special moral opprobrium for supporters of

President Trump. For almost a decade, political

leaders and media commentators have constantly

denigrated President Trump’s supporters as racists,

sexists, bigots, “deplorables,” and many other terms

connoting immorality. See, e.g., Jamelle Bouie, There’s

No Such Thing as a Good Trump Voter, Slate (Nov.

15, 2016), http://tinyurl.com/sjybw4bk; Adam Serwer,

The Cruelty Is the Point, The Atlantic (Oct. 3, 2018),

http://tinyurl.com/5ar7y6cp; Colby Itkowitz & John

Wagner, Biden Says Trump Is America’s First ‘Racist’

President,

Wash.

Post

(July

22,

2020),

http://tinyurl.com/79js5u85; Harold Hutchison, ‘We

Are at War with These People’: MSNBC Guest Claims

Trump Supporters Are ‘Evil’, Daily Caller News

Found. (Sept. 4, 2022), http://tinyurl.com/56whjxhu.

Thus, under the government’s view, any attempt

to affect any legislative or executive proceedings in a

way that benefits President Trump could inherently

qualify as a felony subject to a maximum twenty-year

imprisonment.

This already-fraught inquiry is compounded by the

fact that mens rea is a question of fact decided by the

23

jury. “Under such a vague standard, mens rea would

denote little more than a jury’s subjective disapproval

of the conduct at issue.” Pet.App.93a (Katsas, J.,

dissenting). For January 6 defendants, that means

whether their acts were “wrongful” or “immoral”

would be determined by jurors selected from the most

electorally partisan jurisdiction in the country. See,

e.g., Rowan Scarborough, ‘Tribal’ D.C. Juries Align

with Biden and Democrats, Wash. Times (May 25,

2022), http://tinyurl.com/4s88aavm. And because the

seat of the federal government is in Washington, this

asymmetric dynamic will chill protected petitioning

and speech by those who visit the nation’s capital.

Given such festering potential for abuse, it is

unsurprising that questionable applications of corrupt

intent to political expression have already afflicted

several January 6 cases.

For one Section 1512(c) defendant—a mother who

worked as a school occupational therapist and had no

prior criminal history—the government pointed to

evidence that she “carr[ied] a large sign reading, ‘WE

THE PEOPLE TAKE BACK OUR COUNTRY’ on one

side and ‘THE CHILDREN CRY OUT FOR JUSTICE’

on the other side” as evidence of her “corrupt” intent.

Statement of Offense at 3, United States v. Priola, No.

1:22-cr-00242 (D.D.C. July 26, 2022), ECF No. 65.

Such slogans are commonplace in politics, but under

Section 1512(c), they become fodder for juries to find

that defendants acted immorally.

In another case, the government pointed to a

Facebook post by a nonviolent defendant that, amidst

expressing other concerns about the 2020 presidential

24

election, exhorted followers to attend the protest and

“call

and

email

your

US

Senators

&

Congressman/woman.” Statement of Facts at 11,

United States v. Gray, No. 1:22-mj-00128-ZMF-3

(D.D.C. June 6, 2022), ECF No. 1. Again, conduct

protected by the First Amendment’s right to petition

the government was turned into evidence of a

“corrupt” intent.

The Department of Justice and D.C. juries have

readily attributed immorality to the genuine belief of

many January 6 defendants that there was fraud

during the 2020 presidential election. Under the

government’s view, not only political advocacy, but

political belief itself becomes an element of a Section

1512(c) violation.

If Section 1512(c)(2) applies to political activities,

then the “corrupt” mens rea requirement poses no

barrier and invites prosecutors and jurors to target

political opponents they view as immoral. These

concerns counsel against the government’s sweeping

interpretation.

B.

The Government Is Already Using

Section 1512(c)(2) to Prosecute

Political Opponents.

This Court is “not required to exhibit a naiveté

from which ordinary citizens are free.” Dep’t of Com.

v. New York, 139 S. Ct. 2551, 2575 (2019) (citation and

internal quotation omitted). There is no need to

speculate about the abuses that will result if this

Court

adopts

the

government’s

expansive

interpretation of Section 1512(c). The government has

25

already begun using that statute selectively as a

cudgel against its political opponents.

Many January 6 defendants were nonviolent and

would be subject to prosecution under (at most)

provisions covering “parad[ing], demonstrat[ing], or

picket[ing] in any of the Capitol Buildings,” which

imposes a six-month maximum 5; “disorderly …

conduct … in any of the Capitol Buildings,” which

likewise carries a six-month maximum 6; or “enter[ing]

and remain[ing] in any restricted building or

grounds,” which carries a one-year maximum. 7

The administration was dissatisfied with these low

prison sentences for non-violent offenders. So, as it

has repeatedly done in other contexts, 8 the

administration tried to get around this “problem” by

searching the statute books and seizing on what

seemed like a broad provision providing the kind of

relief the administration wanted—i.e., lengthy prison

time. Section 1512(c) authorizes sentences up to 20

years. Of all the nonviolent crimes available to the

government for charging January 6 defendants,

Section 1512(c) offers by far the stiffest penalty. In

5

40 U.S.C. §§ 5104(e)(2)(G), 5109.

6

Id. §§ 5104(e)(2)(D), 5109.

7

18 U.S.C. § 1752(a)(1).

8

See Biden v. Nebraska, 143 S. Ct. 2355 (2023); NFIB v. OSHA,

595 U.S. 109 (2022); Ala. Ass’n of Realtors v. HHS, 141 S. Ct.

2485 (2021).

26

fact, its penalty is noticeably longer even than the

relevant violent criminal statutes. 9

The government has not hesitated to use Section

1512(c)(2). More than 332 January 6 defendants have

been charged by the government with violations of

Section 1512(c)(2). See U.S. Att’y’s Off., D.C., Three

Years Since the Jan. 6 Attack on the Capitol (Jan. 5,

2024), http://tinyurl.com/y749ysn5. For cases in which

sentencing has already occurred, roughly half of the

defendants charged with a Section 1512(c)(2) offense

were either charged with it alone, or only with a

nonviolent crime attendant to being present in a

Capitol building. See Dep’t of Just., Sentences

Imposed in Cases Arising Out of the Events of

January 6, 2021 (Jan. 5, 2024), http://tinyurl.com/

yc6nv7w6.

Nor is the government’s extraordinary reliance on

Section 1512(c)(2) limited to “small-time” defendants

whom the government thinks it can push into plea

bargains. The government has even charged

President Trump with a violation of Section

1512(c)(2), hoping to imprison—for up to twenty

9

Compare 18 U.S.C. § 1512(c)(2) (20-year maximum), with id. §

231(a)(3) (obstructing, impeding, or interfering with certain

officers incident to civil disorder; 5-year maximum); id. §

111(a)(1), (2) (forcibly assaulting, resisting, opposing,

intimidating, or interfering with certain officers without deadly

or dangerous weapon; 8-year maximum); id. § 1752(a)(1), (b)

(entering and remaining in a restricted building or grounds with

dangerous weapon or causing significant bodily injury; 10-year

maximum); id. § 1752(a)(2), (b) (disorderly and disruptive

conduct in a restricted building or grounds with dangerous

weapon or causing significant bodily harm; 10-year maximum).

27

years—the leading candidate to oust President Biden

from the White House.

The government first began trying to charge

President Trump with a violation of Section 1512(c)

during the Department of Justice’s investigation into

potential Russian interference in the 2016

presidential election. The Mueller report dedicated an

entire section to rebutting defenses to Section

1512(c)(2). See 2 Robert S. Mueller, III, U.S. Dep’t of

Just., Report on the Investigation Into Russian

Interference in the 2016 Presidential Election 159–

178 (Mar. 2019). The government’s theory then was

that President Trump “obstructed” the “proceeding” of

some executive officials investigating claims of

Russian interference in the election by exercising his

Article II powers to direct officials and make

personnel decisions, such as by firing former FBI

director James Comey.

But as former Attorney General Bill Barr then

explained to the Department, the Mueller report

relied on a “new unbounded interpretation” of Section

1512(c)(2) that would prohibit even “facially-lawful

acts taken by public officials exercising [] their

discretionary powers if those acts influence a

proceeding.” Memorandum of Bill Barr to Deputy

Att’y Gen. Rod Rosenstein & Assistant Att’y Gen.

Steve Engel (June 8, 2018), http://tinyurl.com/

mrx7xaau. Trump was “not being accused of engaging

in any wrongful act of evidence impairment.” Id.

This history, combined with the government’s

treatment of January 6 defendants and President

Trump, confirms that the government’s abuse of

28

Section 1512(c)(2) is no aberration. The government

will use it as an all-purpose cudgel against its political

opponents, be they low profile or the highest profile.

This Court should issue a clear rebuke of the

government’s interpretation. The peril of improper

political motivations in pursuing these convictions is

otherwise simply too great.

C.

The Government Has Consistently

Declined

to

Apply

Its

Own

Interpretation of Section 1512(c)(2)

to Political Sympathizers.

By viewing Section 1512(c)(2) as “so shapeless a

provision,” the government inherently invites

“arbitrary

and

discriminatory

enforcement.”

McDonnell, 579 U.S. at 576 (cleaned up). And this

Court has been clear that courts “cannot construe a

criminal statute on the assumption that the

Government will use it responsibly.” Id. (cleaned up).

As explained above, the government has not been

shy about using Section 1512(c)(2) against its

perceived political opponents. The flip side is that the

government has been curiously hesitant to charge

Section 1512(c)(2) against those who align with the

current administration even when their conduct

undoubtedly falls well within the government’s

expansive view of Section 1512(c)(2).

As McDonnell explained, see 579 U.S. at 576, this

disparate treatment is entirely predictable when the

statute is construed so broadly and aims directly at

political conduct, as explained above, see Part II.A,

supra.

29

For example, U.S. Representative Jamaal

Bowman has conceded that he willfully or knowingly

set off a false fire alarm in a Capitol building, causing

an evacuation that delayed a House of Representative

vote on last-minute government funding legislation.

See Mychael Schnell, House Sends Senate Bill to Avert

Government Shutdown, The Hill (Sept. 30, 2023),

http://tinyurl.com/54fv2xxu. Rather than be hit with

Section 1512(c)(2) and face twenty years in prison,

Bowman instead got a slap on the wrist from the D.C.

attorney general, who charged only a misdemeanor

and then even dropped that charge in exchange for an

apology, a fine, and three months’ probation. Andrew

Solender & Cuneyt Dil, Bowman Pleads Guilty to

Pulling Capitol Hill Fire Alarm, Axios (Oct. 25, 2023),

http://tinyurl.com/328a32cf. And there has been not a

peep from the U.S. Department of Justice about

Bowman’s conduct. See Jason Willick, Why the

Jamaal Bowman Fire Alarm Scandal Will Keep

Burning,

Wash.

Post.

(Nov.

1,

2023),

https://tinyurl.com/mvcswb69.

Also curiously escaping the administration’s

reliance on Section 1512(c)(2) are scores of pro-Hamas

protestors who occupied Capitol buildings to advocate

for Congress to back a ceasefire in Gaza. Sara Dorn,

Dozens Arrested in Latest Capitol Protest Calling for

Israel-Hamas Cease-Fire, Forbes (Dec. 11, 2023),

http://tinyurl.com/bdzbpfvj. Again, this easily fits

within the government’s scope of Section 1512(c)(2).

And again, because those protestors are not

conservatives, they face no possibility of prosecution

under Section 1512(c)(2).

30

Or consider the protestors who interrupted

Representative Jim Jordan’s House Judiciary

Committee field hearing in New York City, where

Representative Jordan was examining violent crime.

Matthew Impelli, Protesters Rush Hallway Outside of

Jim Jordan’s Hearing Against Alvin Bragg,

Newsweek (Apr.

17,

2023),

http://tinyurl.com/

2p8ee6ce. Again, there has been no Section 1512(c)(2)

prosecution, because those protestors were Democrats

interrupting Republicans.

Finally, for a case study in the difference between

the current administration and President Trump’s

administration, consider the scores of protestors

arrested for interfering with Senate Judiciary

Committee hearings for President Trump’s judicial

nominees like then-Judge Brett Kavanaugh and

Steven Menashi. See Jason Breslow, The Resistance at

the Kavanaugh Hearings: More Than 200 Arrests,

Nat’l Pub. Radio (Sept. 8, 2018), https://perma.cc/

G76W-3W9M; Jennifer Bendery, Progressives Storm

Senators’ Offices to Confront Them on Votes for

Trump’s Judges, Huffington Post (Sept. 11, 2019),

https://perma.cc/A4BV-QEJN. Those actions by

protestors were highly improper and certainly were

criminal. But President Trump’s Department of

Justice did not adopt the strained view that those

protestors should be charged with Section 1512(c)(2)

and sentenced to up to twenty years in prison. Other

statutes covered their behavior, and many were

charged under those statutes. Unfortunately, such

principled adherence to the rule of law has not been a

hallmark of the current administration.

31

Such abuses erode the foundations of societal trust

in institutions—institutions that must exist for our

constitutional republic to flourish. And those abuses

and erosion of trust will continue unless this Court

lays down a clear marker by construing Section

1512(c)(2) in accordance with standard principles of

interpretation, which will narrow its scope and

thereby avoid the risk of highly-politicized and highstakes criminal prosecutions of perceived political

opponents—a risk that has already materialized.

32

CONCLUSION

The Court should reverse.

Respectfully submitted,

GENE P. HAMILTON

R. TRENT MCCOTTER

AMERICA FIRST LEGAL

Counsel of Record

CALEB ORR

FOUNDATION

611 Pennsylvania Ave.

BOYDEN GRAY PLLC

801 17th St. NW,

S.E., No. 231

Washington, DC 20003

Suite 350

(202) 964-3721

Washington, DC 20006

gene.hamilton@aflegal.org (202) 706-5488

tmccotter@boydengray.com

February 5, 2024