Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose

The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.

But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.

I am an expert on the application of 18 USC 1512(c)(2) to January 6, and so can explain the significance of Justice Roberts’ ruling that it must involve making documents unavailable to an official proceeding.

Before the ruling, I had argued the court could do one of four things:

  1. Leave the application in place
  2. Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
  3. Limit its application to paperwork crimes
  4. Address the meaning of “corrupt purpose”

The court opted for option 3:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.

Or it may not.

Or it may not affect those who knew of the purpose of the vote certification.

After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.

If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.

There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.

Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.

It goes back to the DC Circuit to decide.

Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.

Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.

In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.

For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.

34 replies
  1. Ithaqua0 says:

    So, perhaps, if they knew the certification process involved paper, it’s a crime; otherwise, not?

    • emptywheel says:

      That’s probably a safe bet.

      With Fischer DOJ may argue that he was trying to intimidate Congress by threatening to kill them.

    • Rayne says:

      Who among the insurrectionists didn’t know the certifications were handled by Congress on that day?

      • Ithaqua0 says:

        But—and these were low-information human beings—many may not have known paper was involved. The “I am an ignorant fool” defense.

      • Rugger_9 says:

        More to the point, the certifications were on paper as transmitted to the Congress so even this logical dodge makes no sense. Add to that the attempt to insert bogus certifications into the mix and I do not see how Justice Ketanji Jackson concurred.

      • emptywheel says:

        A great many, actually.

        That said, virtually everyone prosecuted for obstruction had sent comms in advance knowing what the day was about. Whether they knew about the certs is something different.

        There’ll be a hearing next week abt some of my favorite defendants–Ronnie Sandlin and friends. among other things they include the dude who rappelled from the gallery to the floor of the Senate and let others in. They knew about the certs.

        But that hearing will happen before DC Circuit weighs in.

  2. Alan Charbonneau says:

    “…the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.”

    ”…impaired the availability…” would seem to me to include threatening members of congress so they had to take the ballots out of the room. Did they have to fold, spindle, or mutilate them?

    • Anvil Leucippus says:

      If I murder every member Congress, are the documents still sound — even when there’s no one around to use them?

  3. Peterr says:

    To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.

    On Jan 6, VP Pence and Speaker of the House Nancy Pelosi were each an “other thing used in the proceeding,” as was the House chamber and the Senate chamber.

    I’d call this snark, except that the opinion of the court is so silly that the only way to engage it on its own terms is something like this.

    • earlofhuntingdon says:

      As a general response to the jurisprudence of this majority, I again have to revert to Dickens, here, Oliver Twist:

      “If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass–a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience–by experience.”

  4. freebird says:

    The irony here is they just issued a decision where they did not distinguish nitrous oxide from nitrogen oxide. One kills life in lakes and the other is laughing gas. But, I am not laughing but steaming at these gaslighting gasbags.

  5. Savage Librarian says:

    There is other paperwork that was obstructed, besides the certificates. What people are forgetting is the official transcript of the process. Here it is below. You can see from the official record that there was an obstruction of events that day. So, the paper recording of the event that day was clearly obstructed.

    Counting Electoral Votes – – Joint Session of the House and Senate Held Pursuant to the Provisions of Senate Concurrent Resolution 1; Congressional Record Vol. 167, No. 4 (House – January 6, 2021)

    • Clare Kelly says:

      And to the minority affected by this decision, in the immortal words of The Princess Bride’s not-a-witch Valerie (played by the lovely Carol Kane):
      “Have fun storming the Castle!”

  6. Hoping4better_times says:

    Fischer is not off the hook for his crimes. He was indicted on seven counts including the 1512c(2) violation (impeding an official proceeding). He assaulted police and broke into the Capital building, all serious crimes. The SCOTUS decision on 1512c(s) is not a free get-out-of-jail card for Fischer or other Jan6 perps.

  7. John Herbison says:

    The decision is good news for hundreds of January 6 defendants. Donald Trump is unlikely to benefit, though. The Court opined:

    When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct [listed in subsection (c)(1),] subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. (slip op. pp. 8-9.) Trump corruptly attempted and conspired with others to create false slates of electors, to transmit those bogus documents to Congress and to persuade Vice-president Pence to recognize the false documents in place of the legitimate slates of electors from various states.

    • earlofhuntingdon says:

      It will flood the zone with cases, but it won’t help many defendants in the end. What Roberts’s majority would call a solomonic splitting the difference.

  8. VinnieGambone says:

    Trying to figure what Trump will claim of him being insulated from creation of false ballots. Will it be ,–
    my minions did it, but I didn’t tell them to do it defense ?What evidence directly connects Trump to the gambit ?

    • John Herbison says:

      Donald Trump personally attempted to persuade Mike Pence to accept the bogus elector slates and to unilaterally reject the legitimate slates. That constitutes a corrupt attempt for purposes of 18 U.S.C. § 1512(c)(2). Also, ¶ 7 of the indictment charges that the purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. That conspiracy to violate § 1512(c)(2) is actionable under § 1512(k), and Trump is responsible for the actions of his coconspirators.

      • Zinsky123 says:

        IANAL – However, before I retired, I did a considerable amount of work on the Sarbanes-Oxley Act of 2003, which created the legal sections of the CFR you cite, while I was in the public accounting realm. Trump clearly is liable under these sections of the statute, as any CEO would be who created or attempted to create false records. It is crystal clear to me, as a SOX expert. I think Jack Smith should wag his middle finger at our corrupt SCOTUS and hold a press conference stating that, despite this misguided ruling, he intends to prosecute Donald John Trump under this statute and others, to the fullest extent of the law!

      • VinnieGambone says:

        Sounds indictment has Trump dead to rights, totally, yet, can it be true he will be able as president to simply wipe the charges away ?

        How in God’s name can that be allowed ?


  9. phichi174 says:

    looks to me like Roberts shat his bed for the magatards. just think, in her dissent noobie Barrett made the chief justice look like a cheating, little flunkie. which i guess he is

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

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