DC Circuit Upholds 18 USC 1512(c)(2), Sort Of

This passage from Judge Justin Walker’s concurring opinion in the DC Circuit’s ruling upholding the application of 18 USC 1512(c)(2) to three defendants accused of assaulting cops on January 6 may be the most important language, until further litigation sorts out the rest.

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 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).


[I]t 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). * *

I most recently wrote about this appeal here (which links to my past coverage). DOJ has charged over 300 people with obstructing the vote certification on January 6. All but one judge — former Clarence Thomas clerk Carl Nichols — upheld the application. Judge Nichols said that the application of 1512 to these defendants, who allegedly engaged in significant assaults as part of their actions on January 6, had to involve a documentary component, like destroying a document.

Walker joined Florence Pan’s majority opinion upholding the obstruction statute with Garret Miller, Joseph Fischer, and Jake Lang. The decision before the court was primarily whether obstruction required a documentary aspect, and Pan and Walker agreed it did not, though at the hearing, Walker and Greg Katsas made it clear they were interested in limiting the “corrupt purpose” requirement of the statue.

That’s where Walker disagreed with Pan: whether the “corrupt purpose” part of 1512 must involve some kind of personal corruption or may be broader. He argues here — in a part of the opinion that Greg Katsas did not join — that it must.

But he interpreted his own definition requiring some personal corruption to extend to those, like the appellees, who committed crimes in service of keeping Trump in office.

I’m not sure his adoption of personal corruption to assault in the service of election theft is so obvious (his opinion makes it sound like he’s not sure either).

But as written, his language would extend to virtually all the people already charged with obstruction.

This will be further litigated. But given that this is the starting place, unless SCOTUS does something remarkable, it likely means obstruction will be upheld for all those currently charged and could be used with Trump and all his aides who were more clearly working for a corrupt purpose.

[Fixed appellee appellant — because I forgot the defendants won before Nichols]

Update: Earlier this week, I did a podcast with Joshua Holland. I said there were a number of things that Jack Smith might wait on before charging Trump. One of those was this appeal.

Update: Added a bit more description the Nichols’ holding that was overturned.

Update: Both Nick Smith (for Ethan Nordean and the guy who argued before the DC Circuit) and Carmen Hernandez (for Zach Rehl) are using the opinion to disrupt the Proud Boy trial, with Hernandez making a much more expansive ask.

They argue that because Walker would not have joined Pan’s majority opinion on the documents issue without a more narrow reading of “corruptly” than she adopted, Tim Kelly has to apply Walker’s standard in the Proud Boy case. That’s why I noted that Walker had little problem applying his “corruptly” standard to the defendants before him: if it can apply to guys who weren’t called out by the President in advance of playing a key role in an assault on the Capitol, then it surely could apply to guys accused of doing just that.

In her majority, Pan noted that Thomas Robertson’s appeal includes a challenge to the “corruptly” language used to convict him on obstruction, but this bid by the Proud Boys may hasten DOJ’s request for some other resolution.

47 replies
  1. Amicus12 says:

    The decision’s important – and correct – finding that the language of subsection (c)(1) does not modify the language of (c)(2) is also supported by the statutory punctuation.
    The decision essentially makes this point at slip op. 28, and notes that the use of a semicolon “distances” the two subsections, but it does not cite the semicolon rule. As a matter of standard usage and basic statutory interpretation, because subsection (c)(1) is set off from (c)(2) by a semicolon, (c)(2) is an independent clause not governed by subsection (c)(1). A “semicolon stops the forward movement of a statement, whereas a colon marks forward movement.” Bryan A. Garner, The Oxford Dictionary of Amer. Usage Style (New York: Oxford Univ. Press 2000). See, e.g., Nagle v. United States, 48 F.2d 189, 190 (9th Cir. 1931) (“every clause separated by a semicolon in the section under consideration is co-ordinate with each of the others, and therefore must each be read separately”).
    The dissent errs in trying to read the language of subsections (c)(1) and (c)(2) as if they are a single list separated by commas. Not so. As a matter of plain meaning and grammatical structure, the use of physical violence is conduct that “otherwise obstructs, influences, or impedes any official proceeding” within the meaning of 18 U.S.C. § 1512(c)(2).

    • vigetnovus says:

      I never did understand why this actually needed to be fought out in a court of law. Logic and grammar would dictate that the interpretation that (c)(2) is not governed by (c)(1) is the correct one; semicolons separate independent clauses, whereas commas separate a dependent clause from an independent one.

      (See what I did there?)

      And then there is the matter of the logic. Per multiple dictionary sources, the phrase “or otherwise” means something which is the opposite of or somehow different from the meaning of the phrase that preceded it. So clearly “or otherwise” is construed to mean things that aren’t necessarily documents or records.

      • Amicus12 says:

        I’m sympathetic to your comment. The problem is that a federal district court judge found otherwise. And then a federal appellate court judge came to a similar reading. On one side we have reasoning and pencils, on the other, they have the force of law.

        The good news is that two D.C. Circuit judges have disposed of that reading of the statute, and under the panel rule that is the rule of law in the D.C. Circuit unless it is reversed by the entire court sitting en banc, or by the Supreme Court.

        The reach of the statute in terms of the standard of intent is another challenge, but the resolution of that issue will apply to all within the District potentially subject to the statute going forward, and that is no small matter. Not that long ago AG Barr was encouraging U.S. Attorneys to charge Black Lives Matter protestors with seditious conspiracy. https://www.justice.gov/archives/opa/page/file/1317916/download

      • WhiteTiger says:

        “semicolons separate independent clauses, whereas commas separate a dependent clause from an independent one”

        This is not a correct rule OR use of a comma before “whereas.”

        Commas with conjunctions separate independent clauses all the time. Indeed, using a conjunction between two independent clauses might be the most basic form of “sentence combining” (otherwise known as creating a compound sentence). “Whereas” is listed as a subordinating conjunction. Subordinating conjunctions create dependent clauses and when they come after an independent clause, we do not use commas.

        see: https://www.grammarly.com/blog/conjunctions/#:~:text=Subordinating%20conjunctions&text=A%20subordinating%20conjunction%20can%20signal,though%2C%20while%2C%20and%20whereas.

        There may be separate rules, i.e. conventions, in legal language regarding “whereas,” but commas do a lot of work connecting two independent clauses. Parenthetically, I deplore my correct use of the comma after “whereas” in the previous sentence simply from a visual design perspective. The comma just looks awkward on either side of the quotation mark.

    • earlofhuntingdon says:

      Indeed. The semicolon separates two independent clauses; each clause could stand on its own or be a complete sentence. It is so basic, Strunk & White praised it.

    • Arteberry says:

      I do not find myself in agreement with every single rule or recommendation Bryan Garner advances in his many works. But if Garner’s positions permeated the drafting of briefs and statutes in the American legal system (and at least in a few places they do) the system would be infinitely stronger and more user-friendly. If Garner makes a point about how to understand a statute, pay close attention.

        • Arteberry says:

          Garner wrote a book with Scalia and later a book about his friendship with Scalia. That makes Garner a “hagiographer?” In fact, Scalia opposed Garner’s advocacy of reforming legal style insofar as it aimed to achieve greater understandability of the law among non-lawyers. Meanwhile, Garner’s best known book, Garner on Language and Writing, carries a foreword by Ruth Bader Ginsburg. So it seems Justice Ginsburg was Garner’s hagiographer. [Moreover, Justices Ginsburg and Scalia were good friends despite polar opposite attitudes on numerous issues]. In fact, Justice Ginsburg’s husband, Marty Ginsburg, was a bit of a mentor to me early in my career and he was the first one to recommend Garner to me on matters of style and usage, And speaking of hagiography, from a completely different angle, the late David Foster Wallace wrote a long essay praising Garner’s A Dictionary of Modern American Usage

          From your comment, you evidently disagree with Amicus12, who cites Garner’s usage analysis in support of the D.C. Circuit’s majority interpretation of the statute in U.S. v. Fischer. Why? Apparently because Garner had a friendship with Scalia and therefore Garner must be wrong about grammar, usage, and meaning. Indeed, Garner appears never to speak or write on doctrinal matters. His professional interest lies in precision and clarity in language.

          Oh, and lest I forget, Garner is (I believe) still the editor of Black’s Law Dictionary. You know what Black’s Law Dictionary is, don’t you? Because I remember when you were ludicrously claiming that the doctrine of equitable jurisdiction simply did not exist in the 11th Circuit or any federal courts. You were proud of the fact that you didn’t (and wouldn’t) read the briefs in Trump v U.S., in which the doctrine of equitable jurisdiction was the central issue. And the only authority you could cite to support your profound ineptitude was a general definition of equitable jurisdiction in Black’s Law Dictionary. You claimed that Black’s definition was too general a notion to be considered a doctrine cognizable in any court. Black’s general definition does not contradict the 11th Circuit’s doctrine, but the latter has a far more specific meaning … and the doctrine definitely exists.

  2. SaltinWound says:

    Does corrupt purpose matter for Trump since in his case there is also a documentary aspect?

    • Cosmo Le Cat says:

      IANAL, but in considering a charge of seditious conspiracy against Trump, his corrupt purpose is much more direct than the typical J6 tourist facing that same charge.

      The dissenting opinion says a defendant can act “corruptly” only if the benefit he intends to procure is a “financial, professional, or exculpatory advantage.” Clearly, Trump’s intention was to procure all those advantages for himself, whereas the tourists were not seeking those benefits for themselves or their close associates.

      Trump had a duty, per his oath of office, which the riotous tourists generally did not. He acted corruptly by broadcasting lies about the election being stolen, by urging Pence to violate the constitution, by inciting a riot at the capital, by lying about Pence, and by the fake elector conspiracy, plus he helped ensure the success of the rioters by failing to call in the national guard in a timely way or taking other steps to dispel the riot.

  3. OldTulsaDude says:

    Thankfully, we still have a judicial review process. It is disheartening to me to see judges (and others) who look for ways to benefit their personal biases. But democracy is sloppy. The Achille’s heel of both democratic republics and democracies lies in reliance upon “good faith”, that is, to work, both types of government require individuals who place country above party and above personal gain.

    This is a message that should still be taught in schools. Sadly, it is not.

    • Peterr says:

      Nice GOP talking point at the end there.

      From what I hear from the many educators with whom I interact, in four different states, what you describe *is* what is taught, and is exactly what pisses off the GOP, who do not want any messy realities like these to distract people from the vision of Pure and Godly American Exceptionalism that they would prefer be uncritically accepted.

      The sloppiness of democratic republics and democracies is what DeSantis and others are trying to avoid talking about. They want to stamp it out with laws that say “Don’t say gay” or “No criticizing the founding fathers” or “no talking about anything related to race that might make a white snowflake (or, more properly, a white snowflake’s parents) uncomfortable.”

      • earlofhuntingdon says:

        The whole democracy vs. a republic argument is a distraction. It doesn’t affect daily life for most people. What the right wing seems to use it for is to excuse and empower their excesses.

      • oldtulsadude says:

        I don’t grasp how what I said can in any way be construed as a GOP talking point when it is the right wing judges and state legislators abusing their power for the benefit of their bias. No schools I know teach that.

  4. Ginevra diBenci says:

    J6 rioters and cop assaulters arguably stood (and saw themselves as standing) to benefit directly by Trump’s installation as president in defiance of the election. He was known to pardon those who had crimed on his behalf, and had promised on 2016 campaign trail to take care of anyone who took violent action against protestors at his rallies. (Never mind that he had no intention of following through; his followers believe the promises and seem blind to the relentless betrayals.)

    • Rayne says:

      There have been direct benefits for many of the insurrectionists — the ones who were at the upper end of the socioeconomic scale, like the dame who chartered a plane to D.C. for the event. They were the targeted beneficiaries of Trump’s tax cuts and other policies which rolled back regulations.

      And of course there is the white supremacy, though I doubt the court would want to touch on this privilege Trump implicitly assures his base, assuming they’re even aware this is at the heart of Trump’s fascist appeal.

      • elcajon64 says:

        I don’t think it’s a stretch to assume most of them (not just the chartered jet-set) expected to procure a direct benefit. Even if that benefit was to maintain any particular status quo or simply stymie the other side.

        • Rayne says:

          Yes, another benefit which has incalculable value is that of fandom. Many of the insurrectionists found value in participating as a member of a fan base, like showing up at a football game for one’s favorite team hoping their team will win with adequate psychological support from fandom. How does one argue that in court, especially when many can’t or won’t articulate specifics about their fandom identity?

          • Troutwaxer says:

            If you’re White (and also a shitty human being) you might imagine a value in risking money/time/jail to defend White privilege. I don’t see it but apparently they do.

            • Rayne says:

              You don’t see the benefit but apparently some shitty humans are willing to do all manner of illegal things because they perceive a benefit, even killing for it.

      • earthworm says:

        it has been my contention all along that the insurrectionists planned to be rewarded for their presence on 1/6, and the voluminous photos/videos of their presence in the capitol were intended as receipts, for later pay-offs. what these people were doing was criminal; normally, evidence of criminal acts is destroyed if possible.
        in this case it was to be used to collect rewards at some future point in time from a trump government.

    • earlofhuntingdon says:

      “In defiance of the election” is a key observation. Winning outright would have been nice – but normal. “Winning” despite losing – and in defiance of the law – would have demonstrated considerably more power, which is what followers demand in their absolute ruler.

      A fringe benefit is that it allows them to imagine themselves with the same power, when they come in conflict with those they dislike or hate in their own lives.

    • John B. says:

      If, and a big if I know, T@#$p had “won” the election, either through the electoral college, or by other nefarious means, do you have any doubt he would have pardoned most of the people prosecuted for 1/6? Or maybe that never would have been necessary as those prosecutions would never occur under the DoJ in a 2nd T@#$p administration…

    • emptywheel says:

      The other benefit they would have gotten, were Trump to remain in office, is their vote would have counted more than those of 81M other Americans.

  5. Cosmo Le Cat says:

    The rules of statutory construction is a predicate for interpretation of the law, brilliantly addressed above by Amicus12. The Trump-appointed Judge Nichols lacks an understanding of that and has been rejected by this trio of appellate judges, two of which were appointed by Trump, one of whom dissented.

    “Corrupt intent” is a central element in the crime of obstructing an official proceeding. The liberal judge who wrote the majority opinion stated that the subject cases under review, all involving assault, were not ones that the court should use to address the meaning of corrupt intent, since it was obvious that the defendants’ actions were corrupt. The issue is of great significance in order to distinguish traditional protests from criminal acts.

    The second judge who joined the majority ruling — the other Trump appointee — issued a concurring opinion that adopted a narrower interpretation of the definition of corrupt intent, writing that: “A defendant must intend to obtain a benefit that he knows is unlawful.”

    Walker’s interpretation may be the binding opinion of the appeals court under precedent that requires the most narrow interpretation to prevail when a panel is splintered. The full panel would likely expand this narrow interpretation, since the three judge panel was dominated by two Trump appointees. A majority of cases charging obstruction of an official proceeding do not involve defendants charged with assault, so the decision could be deemed problematic by the DOJ, prompting a request for en banc review.

    Note that some defendants have argued that the January 6 meeting of congress was not an official proceeding, a notion that all 3 judges rejected.

    • P J Evans says:

      The Jan6 meeting of congress is required by the Constitution. I don’t know how they can argue it isn’t official when it’s mandated.

      • earlofhuntingdon says:

        Proponents of the argument that it was ceremonial – apart from being entirely self-serving – are playing word games. They conflate Pence’s function, which was his ceremonial counting of ballots long since tabulated many times, with the action that was to follow, which was verifying an electoral winner and loser, a fundamental proceeding of the electoral and governmental process.

  6. vigetnovus says:

    The other thing that I’m not sure has been discussed at length is the legislative history of 18 USC 1512(c). It’s fascinating. It comes from the Sarbanes-Oxley act of 2002, the response to the Enron et al. corporate scandals of the prior year.

    Prior to Sarbanes-Oxley, 18 USC 1512 focused on witness tampering only (indeed, sec 1512(b)(1) is what Roger Stone was convicted under for threatening Randy Credico), and as such made it a crime to corruptly *influence* someone to destroy records or documents, but not for an individual or a group of conspirators *to do it themselves*. This allowed Arthur Anderson’s conviction to eventually be overturned and was a major loophole in the obstruction statutes.

    So they fixed that with (c)(1) and added (c)(2) for good measure.

    18 USC 1505, which has to do with obstructing official proceedings before executive branch departments or agencies OR a Congressional Committee exercising its investigative authority (which again, Stone was charged with and convicted of for lying to HPSCI, among other things), doesn’t define official proceedings of Congress as including anything other than committee meetings. So J6 wouldn’t have applied. DOJ doesn’t have a choice except to use 18 USC 1512(c) (which has been used to prosecute obstruction in other proceedings *outside* of documents, I might add, most notably in the Dino Saracino case, a Colombo family mobster).

    I wonder if the signing statement by Bush on Sarbanes-Oxley will come into play if this goes up to the SC

    To ensure that no infringement on the constitutional right to petition the Government for redress of grievances occurs in the enforcement of section 1512(c) of title 18 of the U.S. Code, enacted by section 1102 of the Act, which among other things prohibits corruptly influencing any official proceeding, the executive branch shall construe the term ‘‘corruptly’’ in section 1512(c)(2) as requiring proof of a criminal state of mind on the part of the defendant

  7. punaise says:

    The ever-pithy Charles Pierce:

    If you happen to have been convicted of obstructing a government proceeding on January 6, 2021, you will not be returning to home, hearth, and bear spray any time soon. You will be enjoying institutional dining for a while longer..

    But, don’t worry. You’re not alone.

    As slowly as the Department of Justice is moving on the white-shoe class of insurrectionists, its prosecutors obviously been putting together solid cases against the grunts of the duckboot militias.

  8. greenbird says:

    “… 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 …”

    late to the party, but i’m commenting ANYHOW !

    • greenbird says:

      “5 The dissenting opinion says a defendant can act “corruptly” only if the benefit he intends to procure is a “financial, professional, or ex-culpatory advantage.” Dissenting Op. 35. I am not so sure …”

      is this TIMELY or am i comatose ?

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