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Case number 22-3038, United States of America appellant versus Joseph W. Fisher.

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Mr. Pierce for the appellants and Mr. Smith for the appellee.

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Good morning, Mr. Pierce.

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Whenever you're ready.

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Good morning and may I please the court, James Pierce for the United States.

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I'd like to reserve three minutes for rebuttal.

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For their participation in the attack in the United States Capitol on January 6, 2021,

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The defendants were charged with, among other things, corruptly obstructing an official proceeding, namely the certification of the Electoral College vote.

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Congress in Section 1512C enacted two distinct and independent prohibitions, one for tampering with records and another, charged here, for otherwise impeding an official proceeding.

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Section 1512 C2's plain text covers any corrupt conduct that obstructs or impedes an official proceeding, and the word otherwise indicates that the provision encompasses conduct other than the document destruction and evidence tampering in Section C1.

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Why doesn't it indicate offenses similar to the ones listed in C1, which is how the Supreme Court read otherwise in Begay?

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So for various reasons, we list three in our brief.

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Otherwise, his most natural meeting, and the one that one would consult and find in various dictionaries, is in another way, in a different way, not in sort of a different but fundamentally similar way as Judge Bates characterized the reading that the district court below gave.

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But specifically the reading that the Supreme Court or the majority in the gay gave to otherwise was looking at a very different provision than 1512 C2, the residual clause of the Armed Career Criminal Act.

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Sorry.

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I mean, but before you get to the grammar and punctuation points, isn't that just the gay's understanding

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is consistent with how language normally works.

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The example in the bar memo, but if we say slap, punch, kick, but, or otherwise hurt, you know that hurt doesn't mean economic harms.

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So two responses.

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One is looking at other statutes.

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So for example, the federal kidnapping statute that says ransom, reward, or otherwise.

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The Supreme Court in Gouge in 1936 said actually otherwise in that context doesn't limit what follows to pecuniary benefits of something like ransom or reward.

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But I would grant that if you have sort of this long list of things at the end of which is something that just says and otherwise,

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sort of similar to what the plurality and what Justice Alito did in Gates, you can, or the court might appropriately apply something like the iustum generis or nociatura socis and say, we liken what follows this to what comes before it.

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But that's, again, not even just as a matter of grammar, but also as a matter of structure, as well as purpose, what 1512C2 is doing.

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What you have there is a provision that sets out the document destruction, alter, delete, or not delete, but mutilate, conceal, et cetera.

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And then you have an entirely separate and distinct prohibition.

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And that's not only a matter, again, of the structure, but also the verbs and the objects.

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And this is something that I think Judge Motz in Montgomery points out.

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You're talking about

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sort of the effect on static objects in C1, whereas in C2, you're talking about changing the nature of the proceedings, changing a dynamic proceeding.

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And to give it this more limited reading, whether it's take some action with respect to a document record or other object as the district court construed it, or as I read my friends on the other side, not exactly to defend the district court,

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but any act that affects availability.

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Just to pause on that point for a moment, I think that also highlights a core problem here, which is the problem in Begay.

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You're just going down a path where you're going to end up with no one really knowing what this means.

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If you stick with the plain text of the Prohibition, you don't take that.

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I mean, each reading has its difficulty, but I'm not sure clarity cuts in your favor.

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I mean, impairing physical evidence is a pretty clear standard.

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It may be too narrow.

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Is there any textual basis for the impairing evidence?

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no textual basis in the court, the district court, I don't think points to a particular thing that does that.

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And if I could also just get back to Judge Katz's point, I don't think our reading has clarity problems.

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What I understood the district court below to say is, wait a minute, you know,

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Interpreted in this way.

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It's going to reach all sorts of things that is that it shouldn't but there are other limitations in 1512 c2 that deal with that problem So the corruptly the nexus and frankly also the official proceeding point.

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I mean one of the problems and what's your definition of problem?

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So, corruptly includes, but is not fully intent to obstruct.

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And it also includes... What?

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Intent to obstruct.

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Okay, that's part of it.

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That is part of it.

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That's not all of it.

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Absolutely not.

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That's a necessary, but not sufficient element, right?

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That's correct.

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And in fact, when we have, when courts, district courts have instructed on 1512 C2, they've actually put that outside of the corruptly piece, but I just want to make sure that we think that's a required element that we must shoulder.

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It also includes acting either with independently corrupt or unlawful means or corrupt purpose.

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And when you say independently corrupt or unlawful, I know what unlawful means.

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What does independently corrupt?

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Well, I think there and so the court is clear.

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This standard comes from late Judge Silverman's separate opinion, separate writing in the North case.

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We understand.

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why we should take yours in a second.

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But first, I just want to understand what yours is.

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What it is.

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Right.

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So I think really the focus is on independently unlawful means.

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I think, you know, wrongful there could essentially take on the meaning as unlawful and the way I'm sorry.

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And then before you get to what I think you're going to say, which is unlawful means, or you're going to give some kind of a purpose element that could satisfy it here were all the means as alleged in the indictment unlawful.

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So the yes is the short hand, and certainly the way the government would expect to prove this up at trial would to point to the trespass, the assault, the civil disorder as the means by which the defendants carried out.

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of their obstruction of the congressional process.

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And I misspoke a little bit.

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I meant independently unlawful.

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And that's how you answer.

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That's correct.

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So we wouldn't just say the obstruction itself.

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And I think that knocks out cases or hypotheticals like standing up in a proceeding, like the Bronstein case is an example we give in our brief where someone goes in and stands up at the Supreme Court and sings and otherwise

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disrupts.

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That's not a violation of C2.

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It's certainly obstructive conduct.

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And I'm interrupting you now, but I'm interrupting you now to make sure that you're able to finish what's your full definition of corrupt.

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Right.

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So we talked about independently corrupt means, corrupt purpose,

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I think, frankly, on a case like this, we could prove this up without having to get to corrupt purpose.

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But the kinds of things that that would encompass, one, Judge Friedrich identified in the Rapid case, another of the January 6 related cases, is someone intending to perform an unlawful result.

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or essentially intending to use unlawful means.

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So there she pointed to a defendant who said, we're going to stop this thing by dragging legislators out by their heads or by their heels with their heads hitting every step.

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What about an additional requirement?

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So you have to prove intent.

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You have to prove either independently lawful means or some version of corrupt purpose.

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Let's put a pin in what otherwise corrupt purpose means because it is pretty hard to define.

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Probably not necessary here.

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You also have to prove in order to satisfy the corruptly word.

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You also have to prove a desire to obtain a financial or other benefit.

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So no, I would say that is a necessary, excuse me, a sufficient but not necessary piece.

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I would say that that could fall under the corrupt purpose.

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It's not necessary if you're going to go the route of independently unlawful means.

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That is correct.

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And what's your support for that?

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Is it just the Silverman concurrence?

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So yes, I think that's the just Judge Silverman's concurrence, partial descent, partial concurrence in North, I think sets out it can be either

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or or both.

[00:09:25] Speaker 04:
Um why and so now the question I previewed and then I'll get out of your way.

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My colleagues way too.

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Let's say that I understand your definition of corrupt and let's say that it is Judge soberman's definition of properly in a non binding opinion.

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Justice Scalia has a definition of corruptly in some cases.

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Justice Thomas does.

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Judge Friedrichs did a very thoughtful analysis of what it might mean here, as have many, many other district judges in our court.

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I think maybe 20 of them have weighed in on this.

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There's common law, definitions of corruptly.

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Why should we pick Judge Silverman?

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If you're going to pick a judge, he's a great one to pick, but why should we pick his definition as opposed to a dozen other contenders?

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So let me just sort of clarify some things built into the court's question.

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18 other judges on this court have accepted the definition of corruptly that we have set out here.

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It was not Judge Friedrich, but Judge Moss in footnote five of his opinion said, it can take on that meaning, but did not adopt the meaning of improper benefit or advantage.

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And again, I'm not saying that that is not, in a case, a potential theory.

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I'm saying that under a corrupt purpose theory, that is what one could point to as a potentially corrupt purpose.

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So again, it would be sufficient, but not necessary.

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I was going to try to answer your question more directly.

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Why is Judge Silverman's definition the best?

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So it's best because in cases like this that involve the obstruction of Congress, right, this is a kind of definition that focuses, sort of recognizes that people can do things that, there is essentially like a lawful way to obstruct or to influence.

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And that I think is the problem that Judge Silberman is getting at and that the district court, the 18 other district court judges that have found our reading persuasive have also noted, which is,

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It is perfectly okay to try to, let's take it in the January 6th context, advocate that members of Congress not certify the election by objecting through the electoral count tax process.

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This definition though, which focuses on independently corrupt means or

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and I can talk about the additional ways to get to purpose, ensures that what they are doing is in fact corrupt or wrongful and places a limitation on their conduct.

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So I'm sorry, corrupt, is it sufficient to prove either corrupt motive or corrupt means, or do you need both?

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I wouldn't call it motive, I would call it corrupt purpose.

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Corrupt purpose.

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This could be sufficient.

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Could be sufficient.

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And that's also consistent with take the way that I see my time.

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So in 1515 subsection B, Congress defined corruptly, not for purposes of 1512, but for purposes of 1505.

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To be just corrupt motive.

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I think the specific term is improper purpose.

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And then it says, including things like giving false statements.

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So interestingly, it says.

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So why wouldn't why wouldn't that pick up the person who's sitting in the gallery and then just start shouting or in the proceedings?

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So separate question, right?

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I mean, that's that's that's not the definition that we think applies to 1512 c2 We think that the more demanding one that I'm sorry.

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Give me your 1512 c2 definition.

[00:13:08] Speaker 02:
So Corrupt purpose which would require the intent to bring about something unlawful Influencing someone to violate a legal duty or as my as my colloquy with Judge Walker indicated an attempt to gain some unlawful or improper benefits

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So in the example of the person standing up, we will fully concede that that falls within the conduct as we see it.

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That is, you're obstructing.

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But I don't see how that fits any of the three corruptly definitions.

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You're not trying to bring about something unlawful.

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Maybe you're trying to stop the confirmation of some judge or whatever it is or advocate for or against the passage of some bill.

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That's not an unlawful result.

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Nor are you trying to ask them to violate some legal duty.

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Nor are you trying to secure an improper benefit or advantage for yourself or for someone else.

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So while that would fall within the conduct, sort of the scope of conduct of C2, it would get knocked out under corruptly.

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And again, that's maybe to circle back to where we started or the question about the problems with our definition.

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Clarity is not a problem.

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To the extent it is, as I took the district court below to be concerned with, the breadth of it, corruptly, next to which we haven't spoken about an official proceeding, building those limitations to knock out some of those cases.

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The person who shouts out has no

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Good faith belief that that's a proper means of stopping the proceeding.

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No good faith belief that the impending certification is going to be improper.

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They just want to disrupt.

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Why wouldn't that be improper?

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You're resisting motive fairly improper purpose.

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Uh, again, because I think, uh, there is a risk that if improper purpose is construed to pick up just kind of what's in someone's head to the extent of, I mean, you can imagine a hypothetical so slightly tweak and say they are getting up there because.

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the person who's up for confirmation, they had a fight with 10 years ago.

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And so that's why I think giving some teeth to corrupt purpose as along the lines that I just laid out, if that's the route on which the government's theory proceeds, again, that's not the route in which I anticipate this case.

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And frankly,

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the vast majority of the January 6 related cases will proceed.

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They'll be on the corrupt means theory.

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But yeah, I do recognize that if corrupt purpose is watered down so as to sort of get in personal antipathy to whatever is happening, that could be problematic.

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But the point is, corruptly does place that limitation.

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Is the definition of corruptly really before us right now?

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That doesn't seem to be the basis of

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of the appeal, it's not briefed that way.

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Judge Nichols, that wasn't what the parties were disputing before Judge Nichols from my reading.

[00:16:08] Speaker 02:
That's exactly correct.

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The definition of corruptly, some defendants have challenged it.

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In fact, the defendants here challenged it below.

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Judge Nichols didn't reach that.

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In his order denying reconsideration, in a footnote, I believe, Judge Nichols said, well, I think the corruptly is too capacious to place a limitation.

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This court certainly does not need to find corruptly to disagree with the plain text reading that we offer and that the district court rejected.

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And it's not something, I think it would be sufficient to say corruptly places a limitation on the nature of how broadly 1512 C2 reaches to the extent we are concerned with the interpretive principle that criminal statutes are to be construed with limitations.

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I'm well beyond my time if there are other questions.

[00:17:01] Speaker 05:
We probably have some more for you.

[00:17:02] Speaker 05:
Go ahead.

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You want to go first?

[00:17:05] Speaker 04:
Go ahead.

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Many judges have weighed in on the Cropley question.

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You're right.

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Judge Nichols didn't get to it here because he didn't have to.

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But most judges have had to.

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And we have a lot of Mr. Judges who have weighed in.

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I think we can weigh in if we get to it.

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You know, if we agree with you on official proceeding, if we agree with you about the breadth of C2, putting corruptly aside, or we could say, you know, we're not going to decide this until Judge Nichols weighs in first.

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What would you prefer we do?

[00:17:51] Speaker 02:
I mean, I got one quick quibble as well.

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The official proceeding question, I think, is also not before this court.

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That the district court denied the defendant's ruling.

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But to the bottom line,

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You know, I think we would like this court to construe consistent with the plain language that there is not a conduct based limitation.

[00:18:13] Speaker 02:
I think it would be enough to say, uh, corruptly provides that, you know, a, a, a cabining.

[00:18:20] Speaker 04:
Let me rephrase it.

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Cause I, I'm sure that if you're going to get a guarantee that we would rule for you, you would want us to roll for you, but

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in a moment right now when you don't know whether we're going to rule with you on the corrupter question or whether we're going to accept the arguments that the defendants have been making to district courts, would you rather us answer that question now if we rule for you on the other questions first?

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Or would you rather us rule for you on the other questions first and then remand to Judge Nichols to consider the corruption?

[00:19:00] Speaker 04:
And why?

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How do we make that decision?

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What should we be thinking about when we exercise that discretion?

[00:19:09] Speaker 02:
I think probably not decide it now is the better result, or is the better way of proceeding, assuming you agree with us and you get to this question of does this court need to say more than corruptly as a restraining or constraining principle?

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And I think partially that's because

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A lot of judges have given us a lot of thought.

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It's come up through jury instructions.

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This court doesn't have a jury instruction in front of it.

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I've got here some that I'm happy to quote to the court, and I've kind of relayed some of those in answering the court's questions.

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But I think probably the better way for the court to decide that is on a record before it and deciding corruptly with respect to a jury instruction

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potentially a vagueness.

[00:19:50] Speaker 02:
We've got unconstitutional vagueness challenges to corruptly as well.

[00:19:54] Speaker 02:
I mean, what pushes against that is, as I'm sure this court is aware, we have many, you know, nearly 300 cases that charge 1512C2, and so some degree of clarity is, of course, welcome in, I think, for all the parties involved, but I think as a matter of

[00:20:10] Speaker 02:
sort of proceeding, I think probably waiting until the issue is more squarely defined would be the proper way, the proper time for this court to weigh in.

[00:20:18] Speaker 02:
And there are a couple of cases that are currently placed in abeyance pending this case where I think the court could decide it, I would hope relatively expeditiously.

[00:20:26] Speaker 04:
You talked about this in your brief, but I want you to have a, I'd like you to talk about it more.

[00:20:33] Speaker 04:
The argument against you on C2 is that if you're right about C2, C1 is surplusage.

[00:20:41] Speaker 04:
maybe even a lot more than C1 is surplusage, maybe some of B is entirely surplusage.

[00:20:51] Speaker 04:
If you're right about C2, can you just kind of speak to the surplusage issue?

[00:20:56] Speaker 02:
Sure, even if it were correct that C2 rendered

[00:21:00] Speaker 02:
much of 15, 12 surpluses.

[00:21:03] Speaker 02:
And I think at a minimum, it carves out 15 A1C, A2C, B3, and D2 through 4, none of which have any relationship to an official proceeding.

[00:21:13] Speaker 02:
But surplusage comes into play when, or the canon on surplusage comes into play when you're weighing

[00:21:22] Speaker 02:
No surplusage on one side and surplusage on the other.

[00:21:25] Speaker 02:
I understand either the defendant's interpretation or the district courts below to also involve surplusage.

[00:21:32] Speaker 02:
Essentially, it would make C1, which is the gate's plurality called a broad spoliation, evidence spoliation provision, C2 would essentially just kind of be redundant as to C1.

[00:21:44] Speaker 02:
So I don't think, you know, to the extent surplusage canon comes into play, it sort of is a net neutral.

[00:21:49] Speaker 02:
And of course, you know, as we've quoted in our brief,

[00:21:52] Speaker 02:
Overlap in criminal law is not unusual.

[00:21:55] Speaker 02:
There are plenty of cases that recognize that, and it's certainly not a reason to give an artificial limiting construction when you've got planned language as we do here.

[00:22:03] Speaker 05:
Overlap is not unusual, but other things equal, surplusage is bad, and more surplusage is worse than less surplusage.

[00:22:19] Speaker 05:
It's a perfectly fair point.

[00:22:21] Speaker 05:
No matter how you read this, there will be overlap, maybe substantial overlap, but your interpretation produces a lot more surplusage.

[00:22:33] Speaker 05:
than the competing one from your friends on the other side?

[00:22:37] Speaker 02:
I think that's fair, but where the court started right there was all things equal.

[00:22:41] Speaker 02:
And we would strenuously reject the notion that all things are equal here.

[00:22:44] Speaker 02:
We think not only do we have a far more compelling plain text argument, but also to the extent one wants to look a little bit at legislative history.

[00:22:52] Speaker 02:
I think, yes, of course, in the post-Enron era, there was a

[00:22:55] Speaker 02:
a principle consideration on document shredding.

[00:22:58] Speaker 02:
But at the same time, there were two other things that were going on there that I think are equally as important.

[00:23:02] Speaker 02:
One in 1512C, Congress was trying, and Judge Bates talks about this in McHugh, sort of a direct obstruction provision.

[00:23:09] Speaker 02:
The rest of 1512, at least its substantive provisions, have this set up where essentially someone has to have affected person X, for person X to then take some other action.

[00:23:18] Speaker 02:
1512C allows for direct obstruction, C1,

[00:23:23] Speaker 02:
Again, perfectly understandable in the Enron context focuses on documents and evidence tampering.

[00:23:28] Speaker 02:
C2 says conduct other than that when directly targeting thwarting an official proceeding.

[00:23:36] Speaker 02:
And so I think that, you know, understood in that context, things, again, are not equal.

[00:23:43] Speaker 02:
I grant our reading has more surplusage, but again, not a reason to reject.

[00:23:50] Speaker 05:
problem or fix is the difference between indirect obstruction and direct obstruction, right?

[00:23:59] Speaker 05:
You cause someone else to shred the document that's covered.

[00:24:03] Speaker 05:
If you shred the document yourself, that's not covered.

[00:24:08] Speaker 05:
That's the fix in C1, we agree.

[00:24:10] Speaker 05:
And if that's the motivating problem, I mean, I'm a little skeptical getting into any of this, to be frank, but if we do,

[00:24:21] Speaker 05:
It seems like your reading of C2 does vastly more than fix the Enron loophole.

[00:24:33] Speaker 02:
So I think that's probably fair.

[00:24:35] Speaker 02:
But then that's sort of the second of the two points.

[00:24:37] Speaker 02:
And I will not resist the courts saying legislative history probably doesn't offer much here.

[00:24:42] Speaker 02:
I mean, I think as we recognize, C2 is added relatively late in the game.

[00:24:51] Speaker 05:
Sorry, so I lost my train of thought as to what... There's a mismatch between the most obvious problem before Congress and, on your view, what the solution is, which is this wholly new conception of obstruction divorced from any sense of evidence tampering.

[00:25:20] Speaker 02:
I don't think it's wholly new insofar as Congress in 1982 had thought about a residual clause that sort of resembles what happened.

[00:25:29] Speaker 02:
And of course, not something that we've talked about today, but in our brief in 1503A, the omnibus clause in 1505, there were similar provisions that Congress likely had in mind in drafting it.

[00:25:42] Speaker 02:
But to get to the point, and the point that I forgot, which is,

[00:25:46] Speaker 02:
The legislative history not only focuses and again will fully concede on the document shredding in the post-enron context, but even but it also talks about how 1512 is quote riddled with with loopholes right and I think it is fair to understand as Judge Moss

[00:26:00] Speaker 02:
and Judge Bates did in their opinions below McHugh and Montgomery, that it makes relatively little sense to say that Congress was focused only on that when they specifically legislate two distinct prohibitions.

[00:26:13] Speaker 02:
They've got not only 1512C1, but they also of course enacted 1519, which was at issue in Yates, and 1520, which is sort of an audit obstruction provision.

[00:26:22] Speaker 02:
Those are clearly all with Enron squarely in mind.

[00:26:26] Speaker 02:
Well, that doesn't account for what 1512 C2 does.

[00:26:29] Speaker 02:
And when you're talking about this transition to direct obstruction and you're also talking about a Congress that is concerned about legislation riddled with loopholes, we think that to the extent legislative history does some work there, that pushes in our favor, or again, at a minimum is a net neutral where we think our textual argument is more compelling.

[00:26:49] Speaker 05:
What do you do with the

[00:26:52] Speaker 05:
elephants and mouse holes consideration with the placement of this new offense in C2.

[00:27:03] Speaker 05:
If Congress were concerned much more broadly, not just direct, you know, do you do you tamper?

[00:27:13] Speaker 05:
Do you get someone else to tamper with the evidence or do you do it yourself?

[00:27:17] Speaker 05:
But with other other forms of obstruction,

[00:27:21] Speaker 05:
unrelated to evidence tampering or witness tampering, right?

[00:27:27] Speaker 05:
That's sort of 15, 12 writ large.

[00:27:32] Speaker 05:
And if that's the concern, it seems odd for the new offense addressing that to be buried in a subsection of a subsection.

[00:27:42] Speaker 02:
So a couple of responses.

[00:27:44] Speaker 02:
First of all, 1512 is, as the Yates plurality described it, full of broad prescriptions.

[00:27:51] Speaker 02:
It is one of the sort of standard obstruction statutes that is used and deployed along with 1503 and 1505.

[00:28:00] Speaker 02:
This is responsive to the question, are we talking about a mouse hole?

[00:28:03] Speaker 02:
I think a mousehole might be some of the provisions at the beginning of chapter or the end of chapter 73.

[00:28:08] Speaker 02:
Again, the Yates plurality described 1519 along those lines, one of these specialized prohibitions towards the end of it.

[00:28:18] Speaker 02:
And I think that's also, and this is in our brief, but I'll just make the point crisply, the way 1512 is structured, C2 sits at the end of the most serious provisions, right?

[00:28:28] Speaker 02:
That's exactly where a reader would expect a kind of catch-all provision to sit, right?

[00:28:36] Speaker 02:
That's not, you know, unintuitively in the middle back or in the subsection of the subsection.

[00:28:42] Speaker 02:
That is directly where you would have something that captures, you know, appropriate for direct obstruction, things that are not otherwise document destruction.

[00:28:52] Speaker 02:
And the last point on this, you know,

[00:28:55] Speaker 02:
1512 doesn't just refer to witness tampering and to document destruction.

[00:29:00] Speaker 02:
It also involves, and this was prosecuted in another of the January 6 cases, interfering with communications to law enforcement.

[00:29:09] Speaker 02:
And so in those, in that respect, 1512 maybe is an elephant already, right?

[00:29:14] Speaker 02:
And so it's a perfectly natural place to put a catchall provision.

[00:29:19] Speaker 05:
Well, 15, I mean,

[00:29:25] Speaker 05:
Yeah, 1512 writ large as an elephant, I guess.

[00:29:29] Speaker 05:
C2 seems, on your reading, seems like a very big deal relative to the rest of 1512.

[00:29:41] Speaker 05:
I take your point, you know, it's at the right, you read it from beginning to end, there's a plausible account why it's after C1 and before B.

[00:29:53] Speaker 05:
does seem odd that it's C2 rather than its own its own section.

[00:29:59] Speaker 02:
Well, I mean, I don't think it's odd insofar as again, Congress likely had in mind and certainly the legislative history does bear out document shredding foremost.

[00:30:07] Speaker 05:
But if you think I mean on your on your reading, which is that otherwise does no work.

[00:30:13] Speaker 05:
And the words that follow otherwise just stand on their own wholly unrelated to the

[00:30:22] Speaker 05:
examples listed in C-1.

[00:30:24] Speaker 02:
So that's, I think that that's certainly how the district court characterized our reading.

[00:30:28] Speaker 02:
I don't think that's an apt characterization as many other judges, district court judges in this district have recognized.

[00:30:35] Speaker 02:
I think Judge Contreras noted in Fitzsimons, what otherwise does is it contrasts the prohibition in C-1 from the prohibition in C-2.

[00:30:45] Speaker 02:
As Judge Moss said, it shifts the emphasis from the evidence foliation to attacks or

[00:30:50] Speaker 02:
you know, efforts to thwart obviously to obstruct impede influence the proceeding itself.

[00:30:55] Speaker 02:
Um, and so that is a tethering and it's not examples.

[00:30:58] Speaker 02:
I mean, examples is the big a case or the AIDS case.

[00:31:01] Speaker 02:
Uh, these are two independent prohibitions as justice Scalia, similar to what justice Scalia said in his concurrence in Aguila.

[00:31:09] Speaker 05:
The last one I have for you is the titles.

[00:31:12] Speaker 05:
Again, not dispositive, but the clue.

[00:31:16] Speaker 05:
And you've got, um,

[00:31:18] Speaker 05:
Not one title, but two.

[00:31:20] Speaker 05:
You have the pre-existing title of 1512, and then you have the title, 11 title in Sarbanes-Oxley, which is corporate fraud accountability.

[00:31:33] Speaker 05:
And the offense, in the offense you're charging here, it's reprehensible conduct on many levels, but it's not corporate fraud.

[00:31:46] Speaker 02:
Fair enough, but the title of the actual C2 itself, what became C2, was hammering with a record or otherwise impeding an official proceeding.

[00:31:58] Speaker 05:
Which just tees up the same question about otherwise in the text of 1512 C2.

[00:32:05] Speaker 02:
Maybe so, but I think it nonetheless makes clear that these are two distinct prohibitions.

[00:32:14] Speaker 02:
You know, obviously the plurality in Yates looked at the title, and I think the title there was a pretty hard to say object was greater than a document record, et cetera.

[00:32:22] Speaker 02:
But here, and I'd point to our filing in the district court at document 74 and the opinions that Judge Maeda had in Caldwell and Judge Moss in Montgomery, sort of discussing Yates, including this title mismatch.

[00:32:36] Speaker 02:
We don't think that does the work that it did say in Yates.

[00:32:41] Speaker 05:
Okay, Judge Walker.

[00:32:42] Speaker 05:
Thank you.

[00:32:42] Speaker 05:
We'll give you time on rebuttal.

[00:32:43] Speaker 05:
Okay, thank you.

[00:32:53] Speaker 03:
Morning, may it please the court?

[00:32:55] Speaker 03:
Nick Smith for Appellees Fisher, Miller and Lang.

[00:32:57] Speaker 03:
The offense in section 1512 C2 is an evidence impairment crime.

[00:33:02] Speaker 03:
It's been an evidence impairment crime since Sarbanes-Oxley was enacted in 2002.

[00:33:06] Speaker 03:
I'm sorry, I'm having trouble hearing you.

[00:33:08] Speaker 03:
Excuse me?

[00:33:09] Speaker 00:
I'm having trouble hearing you.

[00:33:10] Speaker 00:
Yeah, maybe you can close the mic.

[00:33:11] Speaker 03:
I apologize, Your Honor.

[00:33:14] Speaker 03:
The offense in section 1512 C2 is an evidence impairment crime.

[00:33:18] Speaker 03:
It's been an evidence impairment crime since Sarbanes-Oxley was enacted in 2002.

[00:33:23] Speaker 03:
The statute, Section 1512.

[00:33:25] Speaker 00:
What's the textual basis for that?

[00:33:26] Speaker 03:
The textual basis, Your Honor, is that plain meaning is not derived by isolating individual words in a sentence, looking to the dictionary definitions, oftentimes tertiary definitions of the words, and deriving meaning.

[00:33:38] Speaker 03:
Meaning is derived from syntax, grammar, semantics.

[00:33:42] Speaker 03:
We have to look at the entire sentence.

[00:33:44] Speaker 03:
Subsection C2 is not a sentence.

[00:33:45] Speaker 03:
It's a fragment of a sentence.

[00:33:47] Speaker 03:
It's a dependent clause.

[00:33:57] Speaker 03:
limited to BGAY.

[00:33:58] Speaker 00:
I'm still not seeing where in the text it says evidence impairment.

[00:34:04] Speaker 03:
So Judge Pan, it's in the text because as the BGAY court held, if we were to give meaning to just the words obstruct, impede, and influence, and not read them in the context of the exfoliation crime above, those words lose their meaning, destroy documents, because if every act you're on

[00:34:21] Speaker 03:
that obstructs a proceeding or influences a proceeding, constitutes the offense, there is no sense given to the words in C1.

[00:34:29] Speaker 03:
There's no sense given to the word otherwise, they're bereft of meaning.

[00:34:33] Speaker 03:
So just as in Begay, when it was interpreting the ACCA clause in section 924, Judge Ginsburg, Justice Ginsburg, excuse me, pointed out that if we were to interpret 924 EB2 Romanet 2 in isolation,

[00:34:49] Speaker 03:
words that are used in this, the Roman directly above that phrase would have no meaning because any risky violent crime would cover all of those offenses already.

[00:34:59] Speaker 00:
But if it's defined by C1, that's what Judge Nichols said, then that would be limited to documents, objects.

[00:35:05] Speaker 00:
Things of that nature, but your your seem to be advocating a different limitation, which is that it's evidence impairment.

[00:35:14] Speaker 00:
And if you're just relying on the words impeding influence, etc.

[00:35:19] Speaker 00:
Why isn't it just everything?

[00:35:21] Speaker 00:
Why?

[00:35:22] Speaker 00:
why would it be the evidence impairment versus the broad reading which is what every other district judge has held and what apparently the other courts of appeals have held because even though those cases involved evidence impairment those other courts of appeals have all very broadly interpreted this provision um your honor if we would encourage the

[00:35:45] Speaker 03:
cases cited by the government because they all stand for the proposition that this is an evidence impairment crime.

[00:35:50] Speaker 03:
There has been no precedent since 1982 when the statute was enacted.

[00:35:55] Speaker 00:
I'm sorry.

[00:35:56] Speaker 00:
I think this is important.

[00:35:57] Speaker 00:
None of those cases say that it's an evidence impairment crime.

[00:36:00] Speaker 00:
They happen to involve facts that involve evidence impairment, but none of them say so and they all say it's a very broad

[00:36:07] Speaker 03:
Provision.

[00:36:08] Speaker 03:
Your Honor, it is correct that since 1982, no court specifically addressed the question whether a crime in section in the statute 1512 is limited to evidence impairment.

[00:36:19] Speaker 03:
It's simply been assumed.

[00:36:21] Speaker 03:
It's been assumed because no one has ever argued before January 6th that this is anything other than an evidence impairment crime.

[00:36:28] Speaker 00:
Is your only evidence that it's been assumed is that it hasn't come up and a court hasn't ruled on it in any other content?

[00:36:33] Speaker 03:
Your Honor.

[00:36:34] Speaker 00:
I don't think that's a solid way of doing anything.

[00:36:36] Speaker 03:
not an assumption because we can look at decades of protests at the Capitol and other buildings around the United States where those events could have been characterized under the government's theory as obstruction of justice.

[00:36:49] Speaker 03:
But it's a category mistake, your honor, because acts of protest that don't involve investigations and evidence is not obstruction of justice.

[00:36:55] Speaker 03:
The title of Chapter 73 is obstruction of justice.

[00:36:59] Speaker 03:
The meaning of obstruction of justice is interference with investigations and evidence.

[00:37:02] Speaker 03:
And your honor, I would point out

[00:37:03] Speaker 03:
the obstruction of congress offense as it exists in section 1505 and 1512 that has always involved interference with congressional inquiries or investigations alone those are the sole types of proceedings that have meant that have come up in the cases involving obstruction of congressional investigations

[00:37:24] Speaker 03:
out in Poindexter, Congress created a special type of offense for obstruction of Congress.

[00:37:30] Speaker 00:
I don't know how much weight that carries when what we're dealing with here is a very different type of obstruction.

[00:37:37] Speaker 00:
The facts here are just not comparable.

[00:37:39] Speaker 00:
to these prior instances that you're referring to.

[00:37:42] Speaker 00:
But let me ask you a different question.

[00:37:45] Speaker 00:
It seems to me that Judge Nichols was very clear in his ruling that he believes that subsection C2 is limited to instances related to documents, other objects, things of that nature.

[00:37:59] Speaker 00:
You're taking a different view.

[00:38:01] Speaker 00:
You think it's more general than that.

[00:38:03] Speaker 00:
It's evidence impairment.

[00:38:05] Speaker 00:
That's what C2 stands for.

[00:38:06] Speaker 00:
Are you defending Judge Nichols'

[00:38:09] Speaker 03:
Of course, we're defending Judge Nichols' holding and we're taking it one step further.

[00:38:14] Speaker 00:
No, no, I'm just asking you, do you think Judge Nichols ruled correctly and are you defending his rule?

[00:38:18] Speaker 03:
Absolutely, he ruled correctly.

[00:38:20] Speaker 00:
Then why are you then?

[00:38:23] Speaker 03:
offering a different theory.

[00:38:43] Speaker 03:
false testimony in front of the grand jury.

[00:38:45] Speaker 00:
We are, we said that those were wrong.

[00:38:47] Speaker 03:
Yes.

[00:38:48] Speaker 03:
And so your honor, what we are doing is we are applying the principle and be gay that every word and phrase in a statute in a sense has to be given meaning.

[00:38:55] Speaker 03:
And how does that apply in this context?

[00:38:57] Speaker 03:
Well, what justice Ginsburg said was that the crime in the general provision of the statute has to be similar in kind and degree of obstruction in this case to the types of specific crimes, similar in kind, your honor.

[00:39:10] Speaker 03:
So if we look at the kind of offense

[00:39:15] Speaker 03:
And an attempt to influence the testimony in a judicial proceeding is the type of evidence impairment's fence.

[00:39:23] Speaker 03:
It's similar in kind and it's similar in degree of obstruction because they both affect the type of evidence that would be in a proceeding, unlike protests.

[00:39:32] Speaker 00:
Excuse me, counsel, when I start speaking, you need to stop.

[00:39:34] Speaker 03:
Thank you.

[00:39:36] Speaker 00:
So since you are you relying on big A, is that your primary case that you're relying on?

[00:39:40] Speaker 03:
Your honor, I think it's accurate to say that we're relying on it in a canon of

[00:39:46] Speaker 03:
which is to give effect to every purpose and every word and phrase in the statute.

[00:39:51] Speaker 00:
So can you explain the structure of the statute at issue in BeGay as compared to the one here and why it's appropriate to rely on BeGay when in BeGay it was a list of things and a casual phrase, whereas here we're in two different subsections separated by a semicolon and an or.

[00:40:10] Speaker 03:
Your honor, we understand, we appreciate government is making that argument, but if you were to, if we turn to the BeGay

[00:40:18] Speaker 03:
interpret section nine twenty four e b two Roman at two in light of the words and e b two Roman at one, which is separated by a line break and a semicolon.

[00:40:30] Speaker 03:
So even in that case, your honor, I think I think I have the exact quote here for you.

[00:40:39] Speaker 03:
Roman at two to include all risky crimes.

[00:40:42] Speaker 03:
Why would it have included clause Roman at one end quote?

[00:40:45] Speaker 03:
That's 553 US at 142.

[00:40:47] Speaker 03:
In that case, the Supreme Court was holding that it is appropriate to play via Houston.

[00:40:53] Speaker 03:
Generous concept of Nostra Associates when the phrases at issue are separated by a line break and a semicolon.

[00:41:01] Speaker 03:
So after January 6 there was a category of nonviolent cases.

[00:41:05] Speaker 05:
So can I ask just following up on

[00:41:09] Speaker 05:
the distinction between Judge Nichols' theory and yours.

[00:41:15] Speaker 05:
So let's assume we accept your invitation to try to read the statute consistent with how Piguet understood otherwise.

[00:41:30] Speaker 05:
So we have a list of enumerated items, then we have the word otherwise, then we have very general language.

[00:41:39] Speaker 05:
which we have to limit to pick up the criterion of similarity among the enumerated items.

[00:41:48] Speaker 05:
Well, you might say, and Judge Nichols said, the most obvious criterion of similarity, if you look at C1, is physical evidence exfoliation.

[00:42:02] Speaker 05:
So why do we jump up a level of generality

[00:42:07] Speaker 05:
to say, well, really the criterion that matters is just evidence, spoliation.

[00:42:15] Speaker 05:
C1 is much more specific.

[00:42:18] Speaker 03:
Your Honor, I think it's defensible, as I just indicated to Judge Pan, to rule, as Judge Nichols did, to find that the quote in kind refers to documentary evidence rather than the kind being evidence writ large.

[00:42:32] Speaker 03:
But I think, Your Honor, we're giving it to the government that there are, I think, at least three courts of appeals that have interpreted C-2 to extend to non-documentary types of evidence.

[00:42:42] Speaker 03:
and we would agree that it could be appropriate to interpret the kind at issue to mean evidence, because that's how it in fact has been interpreted by various courts.

[00:42:53] Speaker 05:
I mean, sure, but then seems like you're taking a less, you're urging a less textually obvious loss in order to avoid a lot of bad precedent.

[00:43:11] Speaker 03:
Your honor, I think what it comes down to is what happened in Arthur Anderson and the purpose of the Sarbanes-Oxley statute in adding subsection C. I take my colleague's point about the distinction between direct obstruction and indirect obstruction.

[00:43:26] Speaker 03:
The problem for the Arthur Anderson prosecutors was they had in section 1503 an omnibus obstruction crime, but that section doesn't apply when the proceeding is not pending.

[00:43:37] Speaker 03:
That was the case in Arthur Anderson.

[00:43:38] Speaker 03:
The judicial proceeding was, the de-grand jury proceeding was not then pending when documents are shredded.

[00:43:43] Speaker 03:
However, they had subsection 1512.

[00:43:45] Speaker 03:
That applies to scenarios where the proceeding is not pending.

[00:43:48] Speaker 03:
However, at the time before subsection C was added, it only covered indirect obstruction.

[00:43:54] Speaker 03:
So it seems fairly clear from the context, from the statutory history, that subsection C was added to create the type of evidence impairment defense that is available in 1503.

[00:44:04] Speaker 03:
and extending it to section 1512.

[00:44:07] Speaker 03:
We don't need to reach stray comments about documents shredding and the like and get that specific.

[00:44:15] Speaker 03:
That is the Arthur Anderson loophole.

[00:44:17] Speaker 03:
That is what's being closed by subsection C. I think we didn't hear from our colleague any explanation for why the Arthur Anderson loophole would have something to do with actions unrelated to evidence.

[00:44:30] Speaker 03:
Unrelated to evidence.

[00:44:31] Speaker 03:
Arthur Anderson had nothing to do with

[00:44:34] Speaker 03:
actions like protests that don't relate to evidence.

[00:44:38] Speaker 03:
And that's why this statute has never been used for that purpose.

[00:44:41] Speaker 03:
So what the government is doing here is it's asking the court to look at isolated words in a sentence, look at the dictionary definition, and ignore the entire context of the statute.

[00:44:53] Speaker 03:
And Your Honors, we would just, I think we would quote Justice Kavanaugh recently,

[00:44:58] Speaker 03:
He said, quote, the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.

[00:45:05] Speaker 03:
That's a dissent in Boston.

[00:45:06] Speaker 03:
He's quoting Judge Hand.

[00:45:08] Speaker 03:
The problem that he was identifying there is if we look at one word and we don't look at its use, its context, the people that interpret those words normally, we're not doing justice to the meaning of it.

[00:45:20] Speaker 05:
If you look at melody, that's a fair point.

[00:45:24] Speaker 05:
But usually the melody for a

[00:45:28] Speaker 05:
a use them generous type argument is you have a list of nouns or verbs, which are very specific.

[00:45:37] Speaker 05:
And then you have a very general catch all phrase at the end of the list, right?

[00:45:43] Speaker 03:
Well, your honor, we have that here, but it goes to the Ms.

[00:45:46] Speaker 03:
Judge Pan's point about the line breaking the semicolon.

[00:45:49] Speaker 05:
But if we, again, if we go, but let me finish, I'm not making the grammar or punctuation point.

[00:45:55] Speaker 05:
What's unusual here is that C1, it's not just a list, it has its own internal structure and coherence.

[00:46:08] Speaker 05:
You have a list of verbs, you have a list of direct objects, and you have a mens rea requirement embedded in all of it.

[00:46:17] Speaker 05:
And same to some extent with C2,

[00:46:21] Speaker 05:
you have a list of verbs and you have a direct object and the direct object in C2 fits the verbs in C2 and the direct object in C1 fit the verbs in C1.

[00:46:35] Speaker 05:
It seems more like each one is more likely to stand on its own.

[00:46:42] Speaker 05:
Just, you know, when you

[00:46:44] Speaker 05:
play the melody of C1 and then play the melody of C2.

[00:46:49] Speaker 03:
Well, if we could shift back from the music metaphor to grammar, we would just point the court to the distinction between the omnibus clause in section 1503, which Justice Scalia analyzes in Aguilar,

[00:47:05] Speaker 03:
and what the government is calling the omnibus clause in C2 in section 1512.

[00:47:12] Speaker 03:
A true omnibus clause is a sentence.

[00:47:16] Speaker 03:
It's not a sentence fragment.

[00:47:18] Speaker 03:
Section 1503, which the court's calling omnibus clause, is a complete sentence.

[00:47:23] Speaker 03:
But subsection C2 is a fragment.

[00:47:25] Speaker 03:
It's not read in isolation because its meaning is derived from the entire sentence.

[00:47:29] Speaker 03:
So Your Honor, I think even though there were verbs that are different in subsection C2,

[00:47:34] Speaker 03:
The entire subsection C is a sentence, unlike other omnibus clauses.

[00:47:42] Speaker 03:
And so, Your Honor, I think we have to point out here that the injustice of this interpretation, I think that's important to look at.

[00:47:49] Speaker 03:
The injustice?

[00:47:50] Speaker 03:
The injustice of this interpretation.

[00:47:52] Speaker 03:
And here's how it plays out.

[00:47:55] Speaker 03:
If we give the government this interpretation, Your Honor, may I continue?

[00:47:59] Speaker 03:
Yes.

[00:48:00] Speaker 03:
It collapses the distinction between a misdemeanor offense that has been used for decades at the Capitol for protests called the title of 40 offense called parading and demonstrating in the Capitol.

[00:48:12] Speaker 03:
The intent, the criminal intent there is to demonstrate in Congress.

[00:48:18] Speaker 03:
Under the government's reading, there's no distinction.

[00:48:21] Speaker 03:
There's no conceptual distinction between that class B misdemeanor and a 20-year penalty felony.

[00:48:28] Speaker 00:
The government has never explained to any of the trial court judges that- Isn't that where the corruptly definition comes in, according to the government?

[00:48:36] Speaker 03:
So according to the government, that's where it comes in, Your Honor.

[00:48:38] Speaker 03:
But one element that my colleague left out here is that in every jury instruction for 1512, in the district courts, in the trials that have gone on this

[00:48:48] Speaker 03:
wrongful and evil purpose are included.

[00:48:53] Speaker 03:
I think you heard, they are always included, Your Honor.

[00:48:57] Speaker 03:
So I think you heard Mr. Pierce say, well, I think the focus here for Corruptly is on lawful means.

[00:49:02] Speaker 03:
That's the focus, he said.

[00:49:04] Speaker 03:
But wrongful purpose has been included in, I believe, in every or virtually every jury.

[00:49:10] Speaker 03:
As sufficient to establish.

[00:49:13] Speaker 03:
As sufficient, as one among many.

[00:49:15] Speaker 03:
And so, Judge Pan, this gets to your question because you were just pointing out correctly, well, that's a different element.

[00:49:20] Speaker 03:
Corruptly is not in the Title 40 parading offense.

[00:49:23] Speaker 03:
but if it's defined to mean acting with any wrongful purpose, then compare the two crimes.

[00:49:30] Speaker 03:
One person goes in the building with the intent to demonstrate and in the Capitol, another person goes in with the intent to influence the proceeding of the Capitol with a wrongful purpose.

[00:49:39] Speaker 00:
So then we're getting- If corruptly though is the distinguishing feature here, don't we need to wait for a case that raises corruptly to decide this?

[00:49:47] Speaker 00:
We can't decide the corruptly thing because you're telling us it's unfair in order to

[00:49:52] Speaker 03:
influence our statutory construction.

[00:50:03] Speaker 03:
that the limiting function that your honor was just seizing on depends on the definition of corruptly.

[00:50:10] Speaker 03:
It is arguing that we don't have the collapsing Title 40 problem and construction precisely because of its definition of corruptly.

[00:50:18] Speaker 00:
Well, let me ask you Judge Walker's question then.

[00:50:20] Speaker 00:
If this case turns on corruptly,

[00:50:23] Speaker 00:
Is this something that we should remand to Judge Nichols or do we need supplemental briefing?

[00:50:26] Speaker 00:
Because I don't think this case has been teed up as turning on corruptly and we don't have briefing on that.

[00:50:32] Speaker 00:
I don't think it would be correct for us to decide this without briefing.

[00:50:35] Speaker 03:
Your Honor, we're always happy to do.

[00:50:37] Speaker 03:
I will never answer no to the request for supplemental briefing, but I think the court has sufficient briefing here.

[00:50:44] Speaker 03:
We've cited the Reeves decision and Justice Scalia's concurrence and dissent in Aguilar.

[00:50:49] Speaker 03:
where the judges are drawing a distinction between two types of proceedings.

[00:50:52] Speaker 03:
There are judicial proceedings where actions that interfere with an investigation or evidence are corrupt and wrongful per se.

[00:51:00] Speaker 03:
The court in Reeves, the Fifth Circuit decision said, in that context, courts have eliminated the unlawful benefit element only because it is corrupt per se, if you're not a lawyer, to start interfering with evidence and the investigation of a proceeding.

[00:51:20] Speaker 03:
But outside that context, as this court found in Poindexter in North,

[00:51:24] Speaker 03:
The congressional proceeding context involves a wild variety of interactions.

[00:51:29] Speaker 03:
This court said in North, people try to interfere with congressional proceedings all of the time.

[00:51:34] Speaker 03:
In that context, any wrongful purpose is unconstitutionally vague.

[00:51:38] Speaker 03:
We've cited Poindexter.

[00:51:40] Speaker 03:
That's in the briefing.

[00:51:42] Speaker 03:
We've cited Reeves.

[00:51:43] Speaker 03:
We've cited Justice Scalia's concurrence and dissent in Aguilar.

[00:51:46] Speaker 03:
And we believe that's sufficient.

[00:51:48] Speaker 03:
The court, the government has never explained

[00:51:50] Speaker 03:
why this distinction between judicial proceedings where wrongful purpose is okay and congressional proceedings is acceptable.

[00:51:57] Speaker 03:
Why those two proceedings can just be merged?

[00:52:00] Speaker 03:
The courts have always found that they can't be merged, Your Honor.

[00:52:03] Speaker 00:
I understand your position on that.

[00:52:05] Speaker 00:
Can I ask you a different question?

[00:52:07] Speaker 00:
It seems that the gateway to get to all of this analysis is ambiguity, right?

[00:52:11] Speaker 00:
In order for us to... Did you say that one more time?

[00:52:13] Speaker 00:
The gateway to get to all of this analysis is ambiguity.

[00:52:16] Speaker 00:
We would have to find

[00:52:17] Speaker 00:
the words of the statute ambiguous in order for us to go down all of this analysis that we've been discussing.

[00:52:23] Speaker 00:
So I'd like to know what your best argument is for why the words of the statute are ambiguous.

[00:52:28] Speaker 03:
Your Honor, we don't think they're ambiguous.

[00:52:30] Speaker 03:
We think that the reason that this statute's never been extended beyond evidence impairment and availability is because the notion would have been crazy before this context to extend it beyond it.

[00:52:44] Speaker 03:
But at the very least,

[00:52:47] Speaker 03:
to beyond the realm of evidence when there's no statutory history supporting it, no precedent supporting it.

[00:52:53] Speaker 00:
I'm sorry, but the words of the statute, I'm talking about the words of the statute.

[00:52:56] Speaker 00:
The words of the statute are quite clear and they're broad.

[00:52:59] Speaker 00:
So why is that ambiguous?

[00:53:01] Speaker 03:
So it would be ambiguous if we were to interpret C2 in isolation and say that that's not a sentence, that subsection C is not a sentence and that C2 should be, can be read as a sentence fragment on its own.

[00:53:11] Speaker 03:
If we were to do that.

[00:53:12] Speaker 00:
It's read in conjunction with C1.

[00:53:15] Speaker 00:
C1 has a list of things

[00:53:17] Speaker 00:
and otherwise, here are some other, and anything else that obstructs or repeats.

[00:53:23] Speaker 00:
So why is that ambiguous?

[00:53:25] Speaker 03:
It would be ambiguous, Your Honor, because if we're outside the lane of evidence and investigations, we're floating in space, Your Honor.

[00:53:32] Speaker 03:
So let's take the example of Congress.

[00:53:34] Speaker 00:
But the words are not ambiguous.

[00:53:36] Speaker 00:
Do you agree the words are not ambiguous?

[00:53:38] Speaker 03:
There are very general words, Your Honor.

[00:53:40] Speaker 00:
They're general, but not ambiguous words.

[00:53:42] Speaker 03:
So a famous linguist once said,

[00:53:46] Speaker 03:
meaning of a word is its use in the language.

[00:53:48] Speaker 03:
So if we just look at the words themselves, they are ambiguous, Your Honor.

[00:53:54] Speaker 00:
That's why I'm asking you why.

[00:53:56] Speaker 03:
Okay, here's why.

[00:53:57] Speaker 03:
Because context is important.

[00:53:59] Speaker 03:
If we're inside the traditional lane of investigations and evidence, those words have specific meaning.

[00:54:05] Speaker 03:
Justice Scalia explained what those words mean in the Aguilar.

[00:54:14] Speaker 03:
But, Your Honor, if we take congressional inquiries and investigations, which is the classic use of obstruction of Congress defense, if we set that aside,

[00:54:28] Speaker 03:
We're in a world where any type of proceeding in Congress is obstructible under the obstruction of justice laws.

[00:54:35] Speaker 03:
So the actions that are criminal are not as specified.

[00:54:39] Speaker 03:
They're vaguer.

[00:54:40] Speaker 03:
If there's a, for example, Your Honor, if there's a proceeding- Let me go back to corruptly again.

[00:54:44] Speaker 03:
Well, it's actually the act is ready.

[00:54:47] Speaker 03:
So if we're in a proceeding, let's assume Congress, if you'll allow me one hypothetical, your honor, let's assume there's a congressional investigation, such as the select committee that's investigating the attack on January 6.

[00:54:58] Speaker 03:
And they're issuing subpoenas to individuals.

[00:55:01] Speaker 03:
As a defendant, if you see that there's a congressional investigation, the types of actions that are obstructed

[00:55:09] Speaker 03:
competing are within a conceptual lane.

[00:55:12] Speaker 03:
It's an investigation.

[00:55:14] Speaker 00:
There's also a definition of proceeding.

[00:55:17] Speaker 00:
There's no dispute that this was a proceeding.

[00:55:20] Speaker 03:
I'm going to answer the court's proceeding question, but then just finish this one sentence about the lane I'm referring to with the vagueness of obstructed

[00:55:34] Speaker 03:
types of those words take on specific meaning because they're well defined in the case law.

[00:55:39] Speaker 03:
But if we're outside of that lane of investigations and evidence,

[00:55:43] Speaker 03:
Any type, they're not clear what type of act it is, that's the actus reus.

[00:55:48] Speaker 03:
Let's say there's a markup proceeding.

[00:55:50] Speaker 03:
One of the trial court judges said that now proceeding under the obstruction laws in chapter 73, it could extend to markups at Congress.

[00:55:58] Speaker 03:
Well, then you're criminalizing essentially the business of lobbying and interest groups in Washington, D.C.

[00:56:04] Speaker 03:
Why?

[00:56:05] Speaker 03:
Because if an individual were to approach a senator or a congressman and try to influence legislation, a jury of 12 could determine that is an obstructive or influencing act.

[00:56:16] Speaker 03:
And if there's a wrongful purpose, that's criminal.

[00:56:19] Speaker 00:
But let me move to a different topic, because if it were the case that your construction is correct, the government says that the conduct here

[00:56:28] Speaker 00:
alleged, the facts alleged, could fall within the definition that you're proposing because there was an attempt to stop the, I guess, the examination of documents.

[00:56:39] Speaker 00:
I guess that's Judge Nichols' view about, which you're also defending.

[00:56:44] Speaker 00:
You think that Judge Nichols' view is correct.

[00:56:46] Speaker 00:
Judge Nichols says objects, documents, things of that nature.

[00:56:50] Speaker 00:
If you obstruct and pede those types of things, then that would fall within the statute.

[00:56:55] Speaker 00:
The government is saying

[00:56:56] Speaker 00:
that they were stopping and obstructing the examination of certifications in this case.

[00:57:01] Speaker 00:
And so it falls within the definition that you're proposing.

[00:57:04] Speaker 03:
So it wouldn't fall within the definition we're proposing, Your Honor, because an investigation is involved when Congress follows certain protocols to initiate an inquiry or investigation.

[00:57:16] Speaker 03:
And in this court's decision- I'm sorry.

[00:57:18] Speaker 00:
Now I feel like you're questioning proceeding, which is not before us.

[00:57:22] Speaker 00:
Everybody agrees that this was a proceeding, but now you're trying to limit the statute to investigations.

[00:57:27] Speaker 03:
Your Honor, we would push back a little bit on the point that the definition of proceeding is not before the court, because again, the principle is that the court has to give meaning, give effect to every word and phrase in the statute.

[00:57:38] Speaker 03:
So when we're when we're interpreting the phrase obstructed Peter influence and official proceeding, the court is necessarily having to examine.

[00:57:45] Speaker 00:
I forgive me.

[00:57:47] Speaker 00:
I just find it a little frustrating because I feel like it's whack-a-mole.

[00:57:49] Speaker 00:
I try to home in on one aspect of the statute and then you answer me about a different aspect.

[00:57:54] Speaker 00:
So thank you.

[00:57:56] Speaker 00:
So can we just stick right now to the government's

[00:57:59] Speaker 00:
assertion that if we interpret the statute the way Judge Nichols did, which you are defending, that it would apply to the facts of this case because there was this other means of impeding the examination of certificates, which are documents.

[00:58:15] Speaker 03:
So you're on a document, the certificates and ballots that we've pointed out is not evidence because evidence is a material that proves the truth or falsity of a proposition.

[00:58:25] Speaker 03:
A ballot is registering.

[00:58:26] Speaker 00:
Right now we're sticking with Judge Nichols' interpretation.

[00:58:28] Speaker 00:
Judge Nichols says he doesn't say evidence impairment.

[00:58:32] Speaker 00:
He says documents, objects, things of that nature.

[00:58:35] Speaker 00:
You say you're defending Judge Nichols' interpretation.

[00:58:38] Speaker 00:
The government says that this conduct falls within Judge Nichols' interpretation.

[00:58:42] Speaker 00:
That's what I'm asking you about.

[00:58:44] Speaker 00:
Stick with that.

[00:58:45] Speaker 03:
Yes, Your Honor, we're sticking with that.

[00:58:48] Speaker 03:
We're just only making clear that we are taking the legal position that ballots do not constitute evidence.

[00:58:53] Speaker 03:
That's the only point we're making.

[00:58:56] Speaker 03:
So when Judge Nichols holds that

[00:58:59] Speaker 03:
As a matter of law, outside the context of January 6, the crime in subjects in C2 is a type of spoliation crime.

[00:59:07] Speaker 03:
We don't read Judge Nichols to be saying, I equate electoral count ballots with evidence.

[00:59:13] Speaker 00:
Does Judge Nichols's holding require equation with evidence?

[00:59:17] Speaker 00:
Because he says that those evidence impairment cases are wrongly decided.

[00:59:22] Speaker 00:
He said this is strictly a textual reading that limits it to the things in C1, which is

[00:59:28] Speaker 00:
Documents and other things of that nature.

[00:59:31] Speaker 03:
So, your honor, I think I'm answering the question when I say that we are, we are defending judge Nichols decision.

[00:59:37] Speaker 03:
And we are acknowledging that judge Nichols limits subsection C to two types of document impairment.

[00:59:44] Speaker 03:
and that that would imply that the government could supersede and allege that the defendants had interfered with documents.

[00:59:52] Speaker 03:
They have not done yet, Your Honor.

[00:59:54] Speaker 03:
That's not in the record.

[00:59:56] Speaker 03:
So we would say that the government has not alleged at this point that these appellees have interfered with documents on January 6th, had they had intent to.

[01:00:03] Speaker 00:
So you agree then that as a legal matter that factual

[01:00:07] Speaker 00:
those factual allegations would make out an offense under Judge Nichols' reading and the government could supersede their diamond.

[01:00:13] Speaker 03:
Your Honor, we don't think Judge Nichols reached the question of whether the ballots that were used on January 6th are the types of documents that he is contemplating in subsection C2.

[01:00:26] Speaker 03:
We don't think that's in the record right now, but we're only making clear that

[01:00:30] Speaker 03:
Our position is that ballots are not evidence.

[01:00:33] Speaker 03:
And if Your Honor would let me elaborate on that point.

[01:00:35] Speaker 00:
I know, but your balance or not evidence argument goes to your theory, not Judge Nick's theory.

[01:00:41] Speaker 03:
And yes, Your Honor.

[01:00:42] Speaker 03:
And if we were to extend the obstruction of justice laws into the context of ballot counting, the implications are vast and very volatile, Your Honor.

[01:00:51] Speaker 03:
So consider one example.

[01:00:53] Speaker 03:
In 2000, we had a contest election where one of the presidential candidates sent members of his team to encourage the stop, to encourage individuals counting votes, to stop counting votes because of hanging chads in the state of Florida.

[01:01:08] Speaker 03:
There was not just litigation, but there were teams of, of operatives working for these teams, encouraging people to stop counting votes because under their interpretation of the law, that was improper hanging chads should or should not have been counted.

[01:01:22] Speaker 03:
Under the government's theory, you could classify the candidate, the Democratic presidential candidate's actions as obstruction of an official proceeding.

[01:01:31] Speaker 03:
Because under section 5012, well, Your Honor, again, if corruptly is defined to mean any wrongful purpose, or any unlawful means, if we determine in retrospect that well, maybe these hanging chads should have been counted, that was unlawful to stop the vote count with these chats, that could be considered a

[01:01:53] Speaker 03:
It does.

[01:01:54] Speaker 03:
That is because, Your Honor, obstruction of justice laws had never extended into the realm of vote counting.

[01:02:04] Speaker 05:
On this, suppose there were an allegation that a January 6th defendant broke into Congress and actually found the certified votes and destroyed them.

[01:02:23] Speaker 03:
Would that be covered by C2 on your theory?

[01:02:28] Speaker 03:
Your Honor, it wouldn't be under our theory because again, the obstruction of Congress offense entails legislative inquiries and investigations and it has since 1940.

[01:02:38] Speaker 03:
But if we were to stipulate that point and say we can extend this crime outside of investigations, then it seems closer to the classic destruction of evidence case than to the case of

[01:02:51] Speaker 05:
the guy who's in the gallery and starts shouting.

[01:02:54] Speaker 03:
Your honor, we would say that's probably also the destruction of federal property.

[01:02:57] Speaker 03:
And again, so if we were to stipulate that we're an investigation, we're not.

[01:03:02] Speaker 03:
But if we were to stipulate that's evidence and we're not, we would agree that that is more classically the type of obstruction of justice crime than is alleged in this case.

[01:03:11] Speaker 03:
But so the issue here is that the government is not without remedies for

[01:03:21] Speaker 03:
For assault, we have assault.

[01:03:24] Speaker 03:
For interference with police officers, we have interference with police officers.

[01:03:27] Speaker 03:
For trespass, trespass.

[01:03:29] Speaker 03:
For parading in Congress, we have that as well.

[01:03:31] Speaker 03:
The crime they've created, and it is created because there's no support in the case law for it before this to extend it outside of evidence and investigations, the crime they've created is sitting parasitically on every other crime they've alleged.

[01:03:43] Speaker 03:
It's not adding unique content to a crime.

[01:03:46] Speaker 03:
It is merely turbocharging the sentencing guidelines for that effect.

[01:03:52] Speaker 03:
told that this is an evidence impairment crime, there is virtually no effect on the classic types of meat and potato crime, so to speak, that they're covering with all these other offenses.

[01:04:04] Speaker 03:
It is sitting on top of every single one of them and adding no content, Your Honors.

[01:04:09] Speaker 03:
But I think if the court will allow me, there's one point I'd like to make about the ramification

[01:04:17] Speaker 03:
beyond January 6.

[01:04:19] Speaker 03:
If we were to just consider historical acts of protest at the Capitol that we consider, that we celebrate today.

[01:04:27] Speaker 04:
You have made this point at least three times of, you know, if we do this, then it's going to encompass protest.

[01:04:33] Speaker 04:
One of your clients said it was war period.

[01:04:36] Speaker 04:
This was no protest period.

[01:04:39] Speaker 04:
Right?

[01:04:41] Speaker 03:
Absolutely.

[01:04:42] Speaker 03:
So we're not talking about it.

[01:04:44] Speaker 03:
Right?

[01:04:45] Speaker 03:
Well, we would push back on the notion that one person determines whether what protest is, you know, without looking at the objective facts and put the court aside.

[01:04:53] Speaker 03:
Was this a protest or was there something more?

[01:04:55] Speaker 03:
Your Honor.

[01:04:56] Speaker 03:
When you take it as a whole, absolutely not.

[01:05:00] Speaker 03:
Running into the Capitol, assaulting police officers, conspiring to stop the vote count, those are all not acts of protest, however, Your Honor.

[01:05:09] Speaker 04:
And none of that happened in the Florida recount.

[01:05:12] Speaker 04:
None of that happened in the Florida recount, but there's one more wrinkle.

[01:05:16] Speaker 04:
You used the word injustice earlier, and I do take some umbrage at the notion that maybe you have a strong textual art,

[01:05:26] Speaker 04:
Maybe if we use a justin generis and ask for our associates and we're worried about a surplusage cannon and we look to the title again, I get all and I think this is there are parts of this case that are close.

[01:05:39] Speaker 04:
But you seem to have made a theme today of saying it would be kind of an injustice gross imbalancing of the equities to treat

[01:05:52] Speaker 04:
your clients, the way courts and prosecutors treat lawful protesters, for whom no prosecution should be brought, and even unlawful but peaceful protesters.

[01:06:04] Speaker 04:
And so, I mean, we could go through the list.

[01:06:08] Speaker 04:
I won't belabor it too much more, but the teams of lawyers that went down to Florida that you analogized to January 6th rioters today,

[01:06:17] Speaker 04:
They didn't say, quote, Civil War should start.

[01:06:20] Speaker 04:
They didn't use a grappling hook and a rope with a level three vest and a helmet and a mouth guard and a bump cap like one of your clients did.

[01:06:27] Speaker 04:
They didn't say a Democratic Congress should be taking the gallows like one of your clients did.

[01:06:32] Speaker 04:
They didn't say we should have a mob trial.

[01:06:34] Speaker 04:
They didn't punch, kick, punch officers using a bat and stolen rights.

[01:06:38] Speaker 04:
It should go on and on and on.

[01:06:41] Speaker 04:
I think you would have to concede that this has nothing to do with

[01:06:46] Speaker 04:
the protestor outside the Capitol with a sign or with a lawyer who goes down to Florida to try to enforce Florida law and federal law and ensure a fair election, right?

[01:06:55] Speaker 03:
Your honor, it's an excellent point, and I would just like to explain what I meant in response to that.

[01:07:00] Speaker 03:
So when I refer to injustice, there's two kinds, maybe you might say.

[01:07:03] Speaker 03:
There's injustice relating to the facts in the case, what happened in the criminal case, and then there's justice in what we're doing, which is considering how the laws apply.

[01:07:11] Speaker 03:
And the injustice I'm referring to is the principle that like is considered like.

[01:07:16] Speaker 03:
So when we have hundreds of people who have done this very bad thing, and they're running inside and they're they're parading misdemeaning, parading in, you know, demonstrating in the Capitol, and we have hundreds of people who do the exact same thing.

[01:07:31] Speaker 03:
And the government is saying they all have the same purpose.

[01:07:33] Speaker 03:
It's to protest the 2020 election.

[01:07:35] Speaker 04:
When like is not treated like like we're not comparing like and like that's right.

[01:07:40] Speaker 04:
Correct.

[01:07:40] Speaker 04:
You just conceded the

[01:07:43] Speaker 04:
The analogies you've given of litigation in Florida in 2000 are not like this.

[01:07:49] Speaker 03:
Oh, your honor, I was going to get to the Florida example at one point, but I was just, when I refer to injustice, I didn't reference Florida.

[01:07:55] Speaker 03:
I was merely referring to the scenario where one person does the exact same thing.

[01:08:00] Speaker 03:
Mr. Brown and Mr. Black do the exact same thing and they have the same intent.

[01:08:05] Speaker 03:
When the justice system doesn't treat them the same way, that is an injustice itself.

[01:08:10] Speaker 04:
And we can stipulate that with you on that, but why isn't this?

[01:08:14] Speaker 04:
First of all, I'm not sure what that has to do with statutory interpretation, textualism, but even putting that aside, why isn't the solution to level up prosecute the next group that does what happened here?

[01:08:24] Speaker 03:
Hopefully don't ever happen.

[01:08:26] Speaker 03:
Well, your honor, I think this that's when we would go back to the textual arguments.

[01:08:30] Speaker 03:
It wouldn't be appropriate to level up because the issue here is

[01:08:34] Speaker 03:
The offense has always existed.

[01:08:36] Speaker 03:
It's parading and demonstrating in Congress.

[01:08:38] Speaker 03:
Unfortunately, Congress and its wisdom has deemed that a class B misdemeanor.

[01:08:43] Speaker 00:
So when we so the suggestion is what we're trying to counsel isn't what you're referring to, just an exercise of prosecutorial discretion.

[01:08:51] Speaker 03:
No, Your Honor, because we have scenarios where it is stipulated that the conduct is we can see the conduct is exactly identical walking into the Capitol.

[01:09:00] Speaker 03:
The purpose is the same.

[01:09:01] Speaker 03:
That is the intent, the purpose, the wrongful purpose is protesting the 2020 election.

[01:09:06] Speaker 03:
You don't think this was unprecedented?

[01:09:09] Speaker 03:
Absolutely unprecedented, Your Honor.

[01:09:11] Speaker 04:
It should be surprising that there's no precedent for a prosecution.

[01:09:17] Speaker 03:
So it's unprecedented in the scale and the horror of the event, absolutely.

[01:09:21] Speaker 03:
But it's not unprecedented in terms of the actus reus that we're trying to define in the statute.

[01:09:26] Speaker 03:
There have been countless examples when hundreds

[01:09:29] Speaker 03:
have rushed inside Congress going back to the 1970s.

[01:09:32] Speaker 03:
There's a classic case called Jeanette Rankin Brigade, where this court considered a march of 5,000 people.

[01:09:37] Speaker 00:
Council, I'm just trying to get you from going far afield here.

[01:09:40] Speaker 00:
My point is simply that there were a lot of people there that day.

[01:09:45] Speaker 00:
And there was a panoply of behavior that occurred.

[01:09:50] Speaker 00:
And we have hundreds of these cases.

[01:09:55] Speaker 00:
And before I was elevated to the,

[01:09:58] Speaker 00:
DC circuit.

[01:09:59] Speaker 00:
I sat in the district court and I had those cases before me.

[01:10:01] Speaker 00:
They're all different.

[01:10:03] Speaker 00:
And so isn't that where prosecutorial discretion comes in to determine the gravity of the conduct of each individual, determine which charges are appropriate to charge.

[01:10:13] Speaker 00:
There's a felony offense, which is enumerated here in C2, and there's a misdemeanor, which is the parading demonstrating offense.

[01:10:21] Speaker 00:
And prosecutors look at the conduct of each individual and exercise their discretion depending on the gravity of their conduct to determine which to charge.

[01:10:29] Speaker 00:
Why is that unusual?

[01:10:30] Speaker 00:
That is commonplace.

[01:10:32] Speaker 03:
Your honor, prosecutorial discretion is absolutely not unusual.

[01:10:35] Speaker 03:
I was making a slightly different point that when it's

[01:10:37] Speaker 03:
agree that the actus reus and the intent are the same, there might be different factors that distinguish the cases in terms of their severity.

[01:10:46] Speaker 00:
Right.

[01:10:46] Speaker 03:
Felony conduct instead of Mr. But you're on a weird.

[01:10:50] Speaker 03:
Nevertheless, we are still in a world with the same actus reus and intent are both at the same time, a class B felony and a class B misdemeanor and a 20 year felony.

[01:11:03] Speaker 03:
That is not a normal situation, Your Honor, as Your Honor knows.

[01:11:06] Speaker 03:
I can't think of another example.

[01:11:08] Speaker 00:
I'll give you an example.

[01:11:09] Speaker 00:
There's a case of felon in possession.

[01:11:12] Speaker 00:
You can prosecute that in DC Superior Court, or you can prosecute it here in federal court.

[01:11:17] Speaker 00:
And there are vastly different

[01:11:19] Speaker 00:
sentences that are meted out depending on which court you're prosecuted in.

[01:11:22] Speaker 00:
That's prosecutorial discretion.

[01:11:25] Speaker 00:
It's the exact same conduct.

[01:11:27] Speaker 03:
Your honor was pointing out that we need to pull this back to congressional intent.

[01:11:30] Speaker 03:
So the reason we're bringing up the Title 40 offense is to ask, did Congress intend, when it's had this long-standing statutory of parading and demonstrating

[01:11:38] Speaker 03:
the Congress, did it intend for C2 to cover acts of protest related to evidence and investigations?

[01:11:45] Speaker 00:
Then we're back to Judge Walker's point.

[01:11:46] Speaker 00:
This is unprecedented.

[01:11:48] Speaker 00:
What happened here is unprecedented, and Congress used broad language that on its plain face encompasses this conduct.

[01:11:56] Speaker 03:
We take the court's point on that, and I just wanted to respond to Judge Walker's point about the protest and violence, because this is absolutely essential in this case.

[01:12:04] Speaker 03:
It is unequivocally true that there were countless attacks of violence

[01:12:08] Speaker 03:
and despicable conduct, interference with police, and for all of those individuals, they are not protesting and there's no argument otherwise.

[01:12:16] Speaker 03:
In NAACP versus Claiborne, the Supreme Court case, the court was clear that this case involved acts of protest that also engaged violence at the exact same time.

[01:12:27] Speaker 03:
And the court was addressed with what Justice Stevens called the chameleon-like issue of conspiracy in the context of protest and violence.

[01:12:36] Speaker 03:
And the court said that one does not lose one's right to protest in a public forum like the Capitol grounds simply because others around them are engaged in protest.

[01:12:45] Speaker 03:
There was a defendant, Charles Evers, president of the NAACP, who was heard saying that folks might have their necks broken at this next boycott.

[01:12:54] Speaker 03:
The court found that that was actually still protected speech, even though there were individuals breaking necks or destroying

[01:13:03] Speaker 03:
The point that we would just make that is that the protest question depends on the defendant.

[01:13:08] Speaker 03:
And here for acts that do that, the judge Walker for acts that are the kind of conduct that's despicable, there's a statute that reaches every single one of those.

[01:13:18] Speaker 03:
This obstruction of justice statute is not reaching any of that conduct.

[01:13:21] Speaker 03:
It's just sitting on top of everything else.

[01:13:24] Speaker 03:
So thank you.

[01:13:29] Speaker 05:
Thank you.

[01:13:29] Speaker 05:
Thank you.

[01:13:36] Speaker 02:
A handful of points, but of course, happy to answer any residual questions.

[01:13:43] Speaker 02:
The first one I want to start with is one that came up, which is sort of the mismatch between the defendant's proposed interpretation and the district courts.

[01:13:53] Speaker 02:
And I think at a very poor level, that illustrates the problem with

[01:13:59] Speaker 02:
looking outside of the plain text.

[01:14:01] Speaker 02:
The plain text does not have this kind of limitation in it.

[01:14:05] Speaker 02:
There are safeguards so that it does not read as expansively as my friend on the other side suggests.

[01:14:09] Speaker 02:
We talked about some of those before and I'm happy and will try to address them here.

[01:14:13] Speaker 02:
But at the end of the day, when the text says this is for corruptly obstructing, impeding, influencing an official proceeding, which is defined as a proceeding before the Congress,

[01:14:24] Speaker 02:
And again, that's a point that the district court has decided below.

[01:14:28] Speaker 02:
It is not up for whether it has to involve investigation or inquiry, which is, by the way, precisely what Congress has already prohibited in section 1505.

[01:14:37] Speaker 02:
That is the way that this court should interpret it, consistent with its plain language, not toggling between interpretations that

[01:14:45] Speaker 02:
I think could well result in the kind of ambiguity that we saw in the ACCA and ultimately led to its constitutional invalidation.

[01:14:52] Speaker 02:
Now, if this court were nonetheless going to adopt an alternative construction, we do think that we could satisfy that.

[01:14:59] Speaker 02:
But we also think that it's probably that it would be appropriate to interpret it somewhat broader than what Judge Nichols said.

[01:15:06] Speaker 02:
At a minimum, it should also reach any conduct that prevents or thwarts the consideration of documents

[01:15:14] Speaker 02:
or objects at an official proceeding, that would be consistent with the document and object nexus that Judge Nichols read into sections 1512 C2, and that would also clearly encompass the conduct here, and it would also give C2 independent meaning.

[01:15:34] Speaker 02:
I'll pause for a moment

[01:15:36] Speaker 02:
I don't know this to be true for sure, but I suppose one reason defendants seem to resist this notion about taking some action with respect to a document record or other object is not only could that capture the defendant's conduct insofar as it involved

[01:15:54] Speaker 02:
tackling or, excuse me, impeding the consideration of the electoral certificates.

[01:15:59] Speaker 02:
But at least one of the defendants, Defendant Lang, picked up a baseball bat and started swinging it at officers.

[01:16:04] Speaker 02:
That certainly seems like taking action with respect to an object that led to the obstructing the consideration of the documents and obstructing, more importantly, the certification vote.

[01:16:18] Speaker 02:
So we don't think the court should go down that path, but that alternative argument,

[01:16:22] Speaker 02:
that alternative construction should be broader.

[01:16:25] Speaker 02:
And then just very finally, uncorruptly, I think this came out again, but one clarification is I heard my friend on the other side just suggest that wrongful purpose is, we're resting just on wrongful purpose or that the courts have in some contexts have said that's not sufficient.

[01:16:46] Speaker 02:
What Justice Scalia in Aguilar discussed and what some courts have talked about, I think Judge Silverman as well said, intends to obstruct in this kind of context is not enough sufficient.

[01:16:59] Speaker 02:
Some courts have said intends to obstruct in the judicial context would be because it is impossible or nigh impossible to imagine how someone could intend to obstruct a judicial proceeding and have anything other than a corruption.

[01:17:11] Speaker 05:
So I'm sorry, your friend made a factual assertion that in many of these cases,

[01:17:17] Speaker 05:
the jurors are being instructed that corrupt intent is sufficient.

[01:17:22] Speaker 05:
Do you disagree with that?

[01:17:23] Speaker 02:
So it is corrupt, wrongful or unlawful purpose, either independently corrupt means or

[01:17:34] Speaker 02:
or unlawful, and sometimes some judges have said unlawful purpose alone, and some have said unlawful or wrongful purpose.

[01:17:41] Speaker 02:
That's fully consistent with the way courts have read in not only the judicial obstruction context, but in the congressional obstruction context.

[01:17:48] Speaker 02:
The problem arises, I'm sorry.

[01:17:50] Speaker 04:
Do you know of any precedent where a court has said, this checks the corruptly box?

[01:17:58] Speaker 04:
No.

[01:17:58] Speaker 04:
There's a statute that uses the word corruptly.

[01:18:00] Speaker 04:
This checks that box.

[01:18:04] Speaker 04:
the means were independently unlawful.

[01:18:07] Speaker 04:
But there was no intent to obtain an undue advantage for the defendant or or someone the defendant wanted to take an undue

[01:18:23] Speaker 02:
I think it's a difficult question to answer because when juries aren't asked to make that determination, I mean, I suppose that let's take these cases, not these specific ones, but the January six cases.

[01:18:33] Speaker 02:
It is possible to make an argument to say defendants wanted to secure for themselves the improper or unlawful advantage of having their preferred candidate prevail.

[01:18:42] Speaker 04:
That's not well briefed and maybe we would go there, maybe we would not go there.

[01:18:50] Speaker 04:
I'm just wondering if any other court has

[01:18:53] Speaker 04:
accepted a definition of corruptly that finds independently unlawful means to be sufficient, absent a purpose of obtaining an unlawful advantage for the defendant or someone.

[01:19:06] Speaker 02:
So I can offer an answer to the second part of the question, but not as much the first, by saying the following.

[01:19:11] Speaker 02:
Many, many courts, courts of appeals, some of which discussed when my friend on the other side was up here, have defined corruptly without reference to the improper benefits standard.

[01:19:23] Speaker 02:
I'm not aware of any court of appeals or district court that has applied the improper benefit to 1512C2, the statute at issue here.

[01:19:34] Speaker 02:
And many of those convictions did involve defendants engaging in other independently on lawful means, sometimes reflected in other charges in the indictment.

[01:19:44] Speaker 02:
So I think that's a yes.

[01:19:46] Speaker 02:
with the caveat that the improper benefit, again, wasn't charged, wasn't something considered by those courts.

[01:19:52] Speaker 02:
So one could post top come in and say, we can construct a narrative to say that one could also say there was an improper benefit, but that wasn't neither charged in the instructions nor a holding of the court of appeals.

[01:20:06] Speaker 05:
Thank you.

[01:20:07] Speaker 05:
Thank you very much.

[01:20:07] Speaker 05:
Thank you.

[01:20:08] Speaker 05:
The case is submitted.