Judge Karen Henderson May Not Believe Holding the Presidency Is a Professional Benefit

After much delay, the DC Circuit upheld the conviction of former cop Thomas Robertson, finding that he corruptly obstructed the vote certification on January 6 because he used otherwise unlawful means in obstructing the vote certification.

I won’t spend too much time unpacking it because it will be (and a related opinion already has been) appealed.

Florence Pan, writing the majority opinion for the second straight opinion upholding the application of 18 USC 1512(c)(2) to January 6, found that there was sufficient evidence to find that Robertson had “corruptly” obstructed the vote certification, based on his otherwise felonious conduct.

Karen Henderson ruled that instead, Pan’s earlier opinion upholding 1512(c)(2) — or rather, Justin Walker’s concurrence — is binding as to the standard for “corruptly,” which wasn’t before the court in that ruling.

But then having said Walker was binding, Henderson instead reinterpreted and significantly narrowed his standard requiring personal benefit that Walker espoused.

Here’s how Pan described Henderson’s gymnastics.

The dissent claims that we are bound by Judge Walker’s view that “corruptly” in § 1512(c)(2) requires the defendant to act with the intent of obtaining an unlawful benefit for himself or another. See Dissenting Op. 8–15. But in applying that standard, Judge Walker reasoned that the indictments at issue in Fischer should be upheld, stating that “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).” Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment). The dissent does not explain why that reasoning, in an opinion that the dissent believes is binding, does not dictate affirmance in this case.

Instead, the dissent contends that we must overturn the jury’s verdict in this case because “[t]here is no evidence in the record suggesting Robertson obstructed the election certification proceeding in order to obtain an unlawful benefit for himself or someone else.” Dissenting Op. 33. That is incorrect. Robertson believed that the election was “rigged”; announced that he refused to be “disenfranchised”; and declared that he was “prepared to start” an “open armed rebellion.” S.A. 110, 190. That evidence was plainly sufficient to support a finding that Robertson intended to secure the unlawful benefit of installing the loser of the presidential election, Donald J. Trump, as its winner. See Fischer, 64 F.4th at 361 (Walker, J., concurring in part and concurring in the judgment); see also id. at 356 n.5 (reasoning that “the beneficiary of an unlawful benefit need not be the defendant or his friends” and § 1512(c)(2) could apply to a defendant “trying to secure the presidency for Donald Trump”).

To shore up its assessment of the evidence, the dissent states in a footnote that “[t]he ‘unlawful benefit’ the defendant seeks must be financial, professional or exculpatory.” Dissenting Op. 34 n.18. But Judge Walker’s concurring decision in Fischer, which the dissent believes is binding, see id. at 1, did not endorse such a limited definition. See Fischer, 64 F.4th at 356 n.5 (Walker, J., concurring in part and concurring in the judgment). And Judge Walker himself emphasized that, even were the requisite “benefit” so limited, the defendants’ conduct “may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency,” so would likely suffice. Id. The dissent’s position, in any event, ignores the fact that it can be “corrupt” to obstruct an official proceeding for the purpose of gaining a personal, social, or political favor. See United States v. Brenson, 104 F.3d 1267, 1273–81 (11th Cir. 1997) (affirming defendant’s conviction under 18 U.S.C. § 1503 where he disclosed details of a grand jury investigation to its target in order to get a date with the target’s daughter).

In her opinion, Henderson seems to suggest that securing the presidency corruptly for Trump wouldn’t necessarily be a professional benefit for Trump.

18 The “unlawful benefit” the defendant seeks must be financial, professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105 (avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing through illegal disclosure of wiretap); North, 910 F.2d at 851 (fabricating false testimony and destroying documents); see also Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) (“corruptly usu[ally] indicates a wrongful desire for pecuniary gain or other advantage”). Acquittal is thus required if, as I view the evidence, Robertson merely intended to protest the outcome of the election or his (perceived) disenfranchisement or to make some other political point. The majority mistakenly insists that my view conflicts with Judge Walker’s Fischer opinion. Maj. Op. 37–38.

On the contrary, Judge Walker did not decide how broadly to construe the “unlawful benefit” requirement. He merely stated that he was “not so sure” that the sought-after benefit must be “financial, professional, or exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring in part) (citation omitted). And even if this panel agreed with Judge Walker’s suggestion that the office of the President “may” qualify as “a professional benefit,” see id., we would remain free to conclude that there was no evidence presented at trial to show that Robertson intended—either alone or collectively—to procure that benefit. [my emphasis]

None of this matters.

The underlying Fischer decision has already been appealed. This will be appealed.

The biggest takeaway is that self-imagined conservatives keep reaching well beyond the decision before them to try to carve up obstruction in such a way that stealing an election is not corrupt.

51 replies
  1. Peterr says:

    Five year old: Mom, can I have a cookie?
    Mom: No, it’s almost dinnertime. You cannot have a cookie.

    Five year old wanders off

    Ten minutes pass in silence

    Mom gets nervous, and wanders into the kitchen, only to find the five year old with a cookie in each hand and a smile on his face

    Mom: What are you doing? I told you no cookies before dinner!
    Five year old: No, you said I couldn’t have *a* cookie. You never said I couldn’t have two.

    • BRUCE F COLE says:

      He’s going to take it on the knuckles for a felony submission of false documents, his mortal sin. But he has to tell on all his classmates. Fried cheese sandwich, with a rainbow- branded beverage.

      We need to evolve as a species beyond wanting popcorn for schadenfreude. How about cheese fondue?

    • BRUCE F COLE says:

      Well there ya go.

      Sydney was almost a hanger-on. Chese is the brains of the whole goddam shootin match.

      We can argue here about jurisdiction and overreach, but this thing is moving fast and that’s what’s needed, as long as facts don’t get lost in the deluge of Defendent-1 perfidy. We are actually facing a large likelihood of losing our country to fascism, and in very quick order, if this grand conspiracy against us isn’t flattened into the pages of history — with prejudice.

      Just today, Cannon scheduled the documents trial for May 20, when Trump might likely already be the nominee. That’s a ludicrous prospect, for exactly the reason this major GA development offers hope.

      I wonder if Chese will offer any new evidence of even further criminality.

      • Patrick Carty says:

        I think Chesebro has a lot of criminality to expose that the public hasn’t seen yet, which may explain his accepting a deal because Georgia was about to wallop him.
        I only hope his testimony isn’t blurred by constant “Attorney/ Client Privilege “ non-answers.

  2. jdmckay8 says:

    (…) to try to carve up obstruction in such a way that stealing an election is not corrupt.


  3. BRUCE F COLE says:

    *The biggest takeaway is that self-imagined conservatives keep reaching well beyond the decision before them to try to carve up obstruction in such a way that stealing an election is not corrupt.*

    It’s only corrupt if you actually pull it off — because then you can cop a pardon.

  4. hstancat says:

    This NY fraud case included testimony this week that the Trump Org applied a premium when valuing real estate assets during Trump’s presidential term on the basis that the status of that office enhanced the brand value of real estate holdings. 25% if I recall correctly. Almost like an inchoate emolument, no?

  5. tje.esq@23 says:


    Your summation of the beliefs of the sole dissenter reminded me of a concern sparked in me in June about the sources of news embraced by federal judges. I hope you may indulge my setup and blockquote below, but your site is indeed a breeding ground for news-source-reliance critical thinkers. Certainly, edit as needed for brevity.

    My alarm about judicial news-source-reliance was first raised after watching the PBS FRONTLINE documentary about Clarence and Ginni Thomas’s rise to power in Washington, and which documents the formative influences that shaped Clarence Thomas’s conservative beliefs. These included Thomas’s nomination hearings and vote.


    As any adult with a TV in 1991 recalls, Thomas’s Senate Confirmation Hearings appeared potentially derailed when a former subordinate employee of his at the Equal Employment Opportunity Commission (EEOC) named Anita Hill, current-then a law professor, testified to the Senate Judiciary Committee about the pervasive and serial sexual harrassment Thomas subjected her and other female subordinates to during their employment. Millions of Americans, including me, watched Hill’s testimony live, as several networks ditched daytime programing to broadcast her testimony uninterrupted.

    The accusation involved only HER testimony because the committee chair, Joe Biden, decided to call none of Hill’s corraborating witnesses waiting in the wings (they are interviewed in the documentary). This allowed Thomas to frame the accusation as uncorraborated and part of a “high tech lynching” to doom his appointment.

    While Thomas’s nomination survived, his narrow confirmation vote, in an era when judicial nominees were certain to get 90 or more votes in favor, caused him to ponder his future media diet. Below is an excerpt from a May 2023 episode of NPR’s Fresh Air, where Dave DAVIES discusses, with director, writer, producer Michael KIRK, decisions Thomas made about what news outlets he would rely on post-1991-confirmation to shape his future understanding and opinions about events around the world and in the U.S.

    DAVIES: . . . We should just note that, you know, Thomas defiantly denied the charges. He was confirmed. But there were other women who would have, could have, offered corroborating evidence that were never called. We learned in the documentary that this affected him deeply – Clarence Thomas – in terms of his media consumption habits. This was kind of hard to believe. Describe this.

    KIRK: After he gets confirmed 52 to 48 and becomes a Supreme Court justice . . .there are many aftershocks that occur. One of the most interesting to me was that he canceled his subscription to The Washington Post. He didn’t read The New York Times. He said out loud that he was now going to stop consuming any national media at all. So if that’s true, how does he get information? And people we talked to said he relies primarily on two sources. One was Ginni, his best friend, his wife, who herself is into conspiracy theories and lots of other things. She was his . . .a Supreme Court justice whose primary reference point for cultural events and political events in the country was his wife, Ginni[.]

    . . .And [later], a man who would become his great best friend, [was] a wealthy, rich white man named Rush Limbaugh. And he and Limbaugh became inseparable, kind of really, really close friends during that time. So I guess you could assert most of the information that Clarence Thomas was receiving about what was going on in the country was coming from Rush Limbaugh and Ginni Thomas, his wife.

    DAVIES: Yeah, he would have staff tape the Rush Limbaugh broadcasts that he missed so he could listen to them later at a time when the technology wasn’t like it is today. He also enters a whole new set of associations, particularly with wealthy white conservatives. 


    No diss on best-friendships with wives or on wealthy white conservatives, but I found this claim alarming. Has it been corroborated? If so, how pervasive is this type of media diet among the practitioners tasked with upholding this country’s Rule of Law, that must be premised on honest fact-finding, and which is crucial to the survival of any Democratic Republic?

    Perhaps it’s only my chaotic mind that made this mental leap? I’d be happy to be firmly rebuked for my alarm being seen as ‘petty.’

    • RipNoLonger says:

      I thank you for your post – seems about the right length to frame your questions. You raise very good points about how the various justices actually get their information. If what you posited is true, then we know at least one who relies on two very narrow-minded informants.

    • Clare Kelly says:

      tje.esq@23 wrote:
      “Has it been corroborated?”


      Washington Post
      April 18, 1994


      Rush Interviews Justice Clarence Thomas
      “and I have so long wanted people to get to know the man that I know and that so many people who know you know, because you’re a national treasure, and it’s time to expose that to people”
      Oct 1, 2007

      Rush Interviews Justice Clarence Thomas
      “Just as Clarence Thomas understood when he was answering those questions that he was also speaking for Rush too. They were two men who have been sorely traduced by an absolutely disgusting media culture that got worse exponentially”

      Feb 19, 2021

      • earlofhuntingdon says:

        Drug-addicted Limbaugh would know all about creating a disgusting media culture that “got worse exponentially,” owing to his determined destruction of it.

    • BRUCE F COLE says:

      Thanks for the heads up. I’m surprised I didn’t know this about Thomas and Limbaugh. Not surprising that it’s true, though.

      As to the editing issue, I agree with others that you could have trimmed your comment easily. E.g. (between the asterisks):
      “*The undermining of Hill’s testimony against Thomas by Biden’s refusal to let her corroborating witnesses testify* allowed Thomas to frame the accusation as uncorraborated and part of a “high tech lynching” to doom his appointment.”

      That short paragraph could have worked in place of your paragraphs 3 and 4. IOW, your more fulsome account isn’t necessary here, where the readership is very well informed. In fact, part of the reaction to recounting the well-known bits might be just that: “wrong audience.”

  6. Dopey-o9 says:

    Any Major Fool will tell you that the presidency obviously isn’t a professional benefit, because so few seek that office. And so relunctantly.

    When the demon is at your door
    It’s the DOJ

  7. earlofhuntingdon says:

    Trump’s 33-page motion appealing Judge Chutkan’s gag order, which he is required to file with Chutkan before filing the appeal with the DC Circuit. Also reposting Chutkan’s 3-page gag order.

    Trump calls it “unprecedented” and “of extraordinary breadth.” Hyperbole aside, the gag order restricts two small groups – the parties and their counsel – from commenting on or directing others to comment on four small groups: prosecution and defense counsel and their staffs; court staff; and “reasonably foreseeable witnesses.” It also prohibits commenting on the “substance” of the testimony of those witnesses. It is, in fact, nicely tailored and not the limitless gag Trump describes it to be.



      • Rugger_9 says:

        The DCC and SCOTUS won’t mess with this, considering how focused and well supported this order is. Alito and Thomas might go for lifting it, but I doubt any of the other seven will.

    • earlofhuntingdon says:

      Forgot to mention that Trump filed this motion late on Friday, but wants a response by next Tuesday, when he intends to file an appeal with the DC Circuit, should Chutkan not give him what he wants. He better be writing that appeal now.

      • emptywheel says:

        Gonna come back to this but Chutkan is totally unfazed. She’ll let both sides brief it, she’ll sustain her order, and THEN Trump will appeal, but his claim of emergency will not only have much less merit but he will have shown the import of a and the limits on this gag several times in the interim.

  8. Dark Phoenix says:

    So… Becoming one of the most powerful men in the world is somehow not a benefit? Uh… This is so totally incorrect I don’t even know where to start arguing it…

    • Rayne says:

      Begin with the number, type, and price on memberships to Trump org golf courses and resorts — especially Mar-a-Lago — once Trump took office

      Then count up property sales, rentals, services sold once Trump took office and compare to sales/rentals after he left office. Don’t forget the sales of accommodations and fuel to US military via Trump’s Turnberry course in Scotland.

      For starters.

  9. bloopie2 says:

    This is a sidelight to the Powell/Chesebro plea deals that I hadn’t considered. Many January 6 rioters who stormed the Capitol received long prison sentences. But Powell and Chesebro, white collar architects of the effort to subvert the election, negotiated no-prison-time plea deals. So, the pawns pay the price, as usual. And even acknowledging that those pawns placed others’ lives in danger, still, the boss skates? I guess it’s your reward for sitting in the back room while others go out and do your dirty work.

    • Atriana Smith says:

      Can anyone comment on whether these pleas would allow them to still be charged at the federal level?

      • bmaz says:

        To my knowledge, there is no global aspect, and with a single local county attorney, there could likely never be, so yes federal prosecution seems quite possible. Or prosecution by 158 other counties in Georgia and hundreds anywhere else. That is only part of what is fucked up and bullshit about this Fulton County garbage.

      • bloopie2 says:

        Calls to mind an old Columbo episode, Bird in the Hand, with guests Tyne Daly and Steve Forrest (her hubbie). Forrest dies in a hit-and-run accident, for which Daly is suspected. But Daly then goes too far and kills her young lover Harold, and Columbo is able to prove that one. He tells her he doesn’t have to prove she killed Forrest, because he’s got her on the second murder, and “One in the hand is worth two in the bush.”

        What they did in Georgia was not only technically criminal, but also bad in a good/bad, right/wrong, sense. It should be addressed. Jack Smith seems quite busy already with MAL and the Jan 6 Trump case. This state level case seems like an adequate vehicle to bring at least some justice to the overall situation. The guy is guilty, right?

        • bmaz says:

          The GA “state level case” is maybe the most overwrought garbage local prosecution in history. Also, is not a “state level” case, only a local county one. But sure, cheer that.

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