[00:00:00] Speaker 06:
case number 23-3045, United States of America versus Larry Randall Brock at balance.

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Mr. Burnham for the balance.

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Mr. Hensburg for the eboli.

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May it please the court Charles Burnham on behalf of appellant Larry Randall Brock.

[00:00:26] Speaker 00:
Good morning, Your Honor.

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Two issues before the court in this appeal, both of which the court has seen before prior cases in some form.

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The first issue is whether Mr. Brock's eviction for obstructing an official proceeding under Section 1512 is legally flawed and there are certain several subparts to that.

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The second issue before the court is whether the district court erred by assessing three-level enhancement to Mr. Brock's sentencing guidelines for substantial interference with the administration of justice.

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And I'll address the issues in that order.

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The first issue in our brief for 1512 is the Actus Reius issue, which I won't spend much of my time arguing on.

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At this point, something really just preserving the court has ruled on that.

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The Fisher opinion stands and we're preserving that for later proceedings.

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I'll just make one comment about the Actus Reius before moving on to the mens rea issue.

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Which is that the government is correct that on appeal, we are not contesting that the evidence is sufficient to support the actus reus in this case, under the definition of actus reus applied by the district court and by the Fisher majority.

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And the reason for that is important because it relates to the mens rea issue.

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That the actus reus of 1512, considered by itself, is really not inherently aggravating.

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In fact, some versions of the actus reus are praiseworthy.

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One of the ways to violate the statute is praiseworthy.

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Some versions of the 1512 actus reus are praiseworthy.

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One of which is that you can violate that statute by attempting to influence an official proceeding.

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It is rather unfortunate that we refer to the statute as obstructing an official proceeding.

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It could just as equally be called influencing an official proceeding.

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And I think that's important for the Menserean.

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Not if you're using purpose or corrupt means to do so, which is what the statute covers.

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And the reason that the corruptly limitation is there is precisely so that the statute doesn't cover praiseworthy efforts to advocate or demonstrate

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I couldn't agree more, Your Honor.

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And that's why the Corruptly issue is so important for this statute.

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Because without, I would submit, a carefully thought out definition of Corruptly, as Your Honor alluded to there, the actus reus, as other judges of this court have noted, has some very problematic aspects to it.

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And that's why we're sorry.

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Will you emphasize just on that point that Brock showed a genuine, not feigned concern over the presidential election

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Why does that, and I take your argument to be that that would be a defense or that would vitiate a corrupt purpose.

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How could that be?

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But part of the way the corrupt purpose is sometimes formulated, this, of course, is not the formulation we're arguing for, but this is the way it's sometimes applied, is requiring consciousness of wrongfulness in addition to other aspects of it.

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That's the definition the government's argued for in the past.

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That's the definition the district court applied.

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And so the evidence in terms of if the question is, is the evidence sufficient to support

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the corruptness finding under that definition.

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That's why I get into that instance.

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Let's say, I mean, I'm not sure that I'm following the distinction that you're trying to make.

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Let's say that someone has been in an election for a state judge and the candidate thinks that she won, but she's not being recognized.

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as the winner, and she sincerely and honestly thinks that.

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Does that privilege her to rally a mob to go and interfere with an investiture of the court, to break into the courthouse, because she has a sincere belief that she's been wronged?

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It certainly doesn't.

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The way, in just the terms Your Honor put it, doesn't entitle the judicial candidate to do that.

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But the question is,

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it's going to be different under every different factual scenario.

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But under the proof is, is there evidence that the individual in question, whether it be at a state judge or a protester, is acting wrongful?

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That's in addition to the requirement that the conduct be unlawful.

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Conduct can be unlawful without the

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defendant having consciousness of wrongfulness.

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Well, in this case, Judge Bates relied on the corrupt purpose aspect.

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So let's set aside for now the corrupt means avenue that is sketched out in our prior precedent, especially in North, and just focus on the evidence of corrupt purpose.

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What is it about the evidence in this case?

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We're on sufficiency review, sufficiency of the evidence review.

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What is it about the evidence that we could deem insufficient to support Judge Bates's finding in the case?

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There's two things, two things.

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The first is that we have a finding from Judge Bates, and this is in the brief saying, let me back up for a second.

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The main evidence of intent that the government relied on this case was social media.

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And that's in Judge Bates's,

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decision, the government relies on that.

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And there's all sorts of stuff in the social media evidence.

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But importantly, the judge made a finding that not everything in the social media evidence is to be taken as a literal expression of Mr. Brock's intent on January 6.

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And the district court importantly doesn't go through there and specify which

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Facebook post or email was particularly relied upon as being a genuine expression of the defendant's intent as opposed to just culminating on social media.

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As the judge found, some of the evidence was received in that light.

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That's the first problem.

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The second problem is, as we see it, the sufficiency of the evidence is

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This is again separating the question of whether Mr. Brock violated other statutes, misdemeanor statutes and such, from whether he had consciousness of an improper purpose on January.

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And we contend that even on appellate review, the evidence all pointed in the direction of Mr. Brock thought he was acting righteously, patriotically, and with an eminently proper purpose.

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Now, of course,

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can disagree with that he was saying all evidence pointed towards that oh sure yes all evidence yes so let's use methods on them like we used on al-qaeda let's uh we'll get pardons for everything up to it including murder walking around with flex cuffs all that points to he didn't have consciousness of wrongdoing well that's why the finding is so important not all of the social media evidence not all but you just said all the evidence pointed

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in a way favorable to your client.

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But in fact, I think where the district court was, there's some mixed messages in the social media.

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And then there was his conduct on the day, which the district court also relied upon.

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And our standard review here is incredibly deferential.

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We would have to say that it was irrational, irrational for Judge Bates to look at that mix of evidence.

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and conclude that there was consciousness of wrongdoing.

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So what in the record shows it was irrational to look at these things, some pointed one way, some pointed another, and draw the conclusion that Judge Bates did.

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I would agree with your honor if there was a finding from Judge Abase saying one of two things, either that all the social media evidence was to be taken as a literal expression of intent, or if the district court went through and said, these are taken literally, these are not.

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The district court did neither of- A jury wouldn't do that.

[00:08:28] Speaker 06:
Why does the district court have to do that?

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I think a jury would do that.

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They wouldn't be explicitly set out on the record because deliberations- He did it in his head too.

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I'm sorry?

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Maybe Judge Bates did it in his head as well.

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Well, I understand that.

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You don't require the judge in a bench trial to spell everything out like an agency administrative record.

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I understand that, respectfully, if the judge had said nothing and just said, I find that the evidence taken as a whole shows the proper intent.

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Perhaps I'd have a bigger problem.

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But the judge took the explicit step to say, you know what?

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I'm not taking the social media evidence, literally, as the government was urging the judge to do.

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The government relied very heavily on that, including things that I

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I don't want to get into the facts more than is relevant in this appeal, because the judge took that step.

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I'm just going to make sure I'm clear here.

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You read the district court as saying, I don't believe any of the social media evidence.

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I'm discarding all of that.

[00:09:18] Speaker 00:
No, no, no.

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That's exactly the point, Your Honor, I think, is the judge didn't then go on to say, these five posts, I think, should be taken literally.

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And that's what I'm relying on.

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The judge didn't take that step, which doesn't leave this court with anything.

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But we can look at the evidence.

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We have to look at the evidence under sufficiency review and see whether it's sufficient.

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And because he didn't exclude any particular evidence,

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we would look at it as a reasonable fact-finder and say, could this support, even bracket the social media evidence for the moment and think about the day.

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Is it your position that the actions that Mr. Brock took on the day, joining a mob, going to the Capitol, seeing law enforcement officers overwhelmed,

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Barriers breached, windows broken, alarms blaring, a mob not following the guidance of uniform law enforcement officers, that that would be inadequate evidence for any reasonable fact finder to find an intent, a purpose to join this mob that was trying to stop the certification.

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The answer is a reasonable fact finder could find that it was unlawful, which is why we're not appealing most of the convictions.

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I very much contend that a reasonable fact finder could not find that Lieutenant Colonel Brock intended to act wrongfully.

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That's the distinction I'm making between unlawfulness and wrongfulness.

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That's, I think, the critical factor here.

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All the evidence points in.

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I think the district court used the phrase, and in many cases do, consciousness of wrongdoing.

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Yes, Your Honor.

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So how are you defining wrongdoing?

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Well, that's why that's why I'm contending for a different legal standard entirely, because wrongdoing is not something that the courts have fleshed out.

[00:11:23] Speaker 06:
But the way it's presented, I'm asking you, it sounds to me like you're arguing that you may have done things that were unlawful, but he wasn't engaged in wrongdoing.

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Exactly.

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You're giving that up.

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You're not arguing that you have a different argument for a different standard altogether.

[00:11:36] Speaker 00:
Well, I have arguments in the alternative.

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One is this court should adopt the concurrence from Fisher, which is a different analysis.

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But two is even if the majority of- The benefit one.

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Yes, that's exactly right, Your Honor.

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But this argument- If consciousness of wrongdoing were to be sufficient to establish that he acted corruptly as a matter of law, if that were the case, then you lose.

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I don't agree with that, Your Honor.

[00:12:02] Speaker 06:
You said you have alternative arguments.

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Yes, and the alternative I would not concede that I was, because wrongfulness.

[00:12:07] Speaker 06:
The benefit one, but the concurrence in Fisher found that the benefit test was satisfied in a very similar situation in that Fisher and the defendants there, Lang and others, were acting to gain a benefit for former president, I guess then president Trump.

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Well, I partway slightly with the concurrence, both in the abstract and as applied to this case.

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I see my time, I think.

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That's OK.

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I think there's a number of problems with that.

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The one argument is that if benefits that are that ethereal can satisfy the test, the standard sort of collapses on itself because every human action has some kind of a purpose.

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Secondly, if you look at the particular facts of this case and others, the benefit is not

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because we want Donald Trump to be happy.

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The benefit is for the country to expose what certain folks have viewed as problems at the election, to do a public service, all sorts of public.

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Your client was quite clear.

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He wanted to have a new slate of electors put in, force members of Congress to sign it so that President Trump would remain.

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president for a second term.

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That's what he wanted.

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That's what he thought was needed.

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That's what he thought was supposed to happen.

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So that was the benefit that he was seeking.

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And it would have been a benefit to President Trump as well, in his view.

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I understand, Your Honor.

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And the two responses I would have is, one, is the evidence showed that Lieutenant Colonel Brock didn't consider it unlawful benefit.

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That's the way that test is phrased, unlawful benefit.

[00:13:46] Speaker 06:
All the evidence shows... That's right, but under the... Well, the cases don't offer a very good one.

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I can test... It's in a moral sense, the way I think it should be taken.

[00:14:04] Speaker 00:
Wrongfulness in a moral sense as distinct from wrongfulness in a legal sense.

[00:14:07] Speaker 04:
I think that's the only... People who engage in civil disobedience,

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I mean, the power of civil disobedience typically is I know I'm violating the law, and I'm ready to take the consequences for it because I'm responding to a higher law.

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And the higher law, in my view, is more important, and even to the point where I'm willing to sacrifice myself.

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But what follows from that is that the sacrifice is that the law does not bend and accommodate

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the person's individual moral principle, it applies neutrally to that person.

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And when the person acts in the face of what they know are legal constraints in response to the higher law, the higher law is not factored in.

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Do you have a different view?

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I agree entirely, Your Honor.

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And that's why trying to force the corruptly test into this situation is, I contend, not the best interpretation.

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A civil rights protester at a synod is breaking the law.

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But it requires language and history and our common understanding to say that person is corrupt.

[00:15:21] Speaker 00:
That makes no sense.

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A civil rights protester joined a mob and overwhelmed police officers and broke into a building

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to stop a person from being seated because they felt, I've been disenfranchised.

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I shouldn't have been disenfranchised.

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This person should not become our leader.

[00:15:48] Speaker 04:
It would be the same analysis, wouldn't it?

[00:15:51] Speaker 00:
I don't think so.

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It might be illegal.

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But I would say that we wouldn't say those folks are acting corrupt.

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Nothing dishonest there.

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There might not even be anything wrong.

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They're breaking the law.

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That's the whole point of civil disobedience.

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But that's why I think it's so important that the wrongfulness and part of this analysis shouldn't be forgotten.

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That's why those protesters are guilty of disorderly conduct.

[00:16:11] Speaker 06:
Where did you make all these arguments about mens rea below?

[00:16:15] Speaker 00:
I'm sorry.

[00:16:16] Speaker 06:
Where did you make all these arguments that you've been making here about mens rea in the district court?

[00:16:21] Speaker 00:
Well, this comes to the waiver question, I think is what your honor is getting to.

[00:16:23] Speaker 00:
And absolutely, we can see that our closing arguments focused on the wrongfulness standard of mens rea as opposed to the unlawful benefits simply because that's what I knew Judge Gates considered the correct test to be.

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That's what was fashionable.

[00:16:36] Speaker 06:
I mean, you've come here and said, I'm still making these arguments to preserve them for further reviews.

[00:16:40] Speaker 06:
So where in the district court did you say,

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Judge Bates, I understand that you think consciousness of wrongdoing is the test, but for purposes of preserving the right to review, I am also arguing for these standards that you've argued here.

[00:16:52] Speaker 00:
I did not make that statement perfectly clear with Your Honor, but the two points I'd make in response is that at the motion for judgment of rule 29,

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I made the motion, as I always do, to every element of every count.

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But then I went on to say, Your Honor, I'm just going to focus on what I think would be the most critical to the court.

[00:17:06] Speaker 00:
But the motion was made to every element of every count.

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Secondly, at that point, the Fisher decision.

[00:17:13] Speaker 00:
I'm sorry.

[00:17:14] Speaker 06:
Did you focus on that?

[00:17:15] Speaker 00:
Oh, yes, I did, Your Honor.

[00:17:17] Speaker 00:
I focused entirely on the wrongfulness standard because that's based on my strategy.

[00:17:22] Speaker 04:
Alternative standard you argued for other than the benefit, you know, dishonesty and benefits standard was a clearer- And even argue for benefit below you argued for wrongfulness.

[00:17:33] Speaker 00:
That's exactly right.

[00:17:34] Speaker 04:
And at that point- But what was, I'm just asking, what was the standard that you proposed other than consciousness of wrongdoing that you thought Judge Bates should have applied?

[00:17:42] Speaker 00:
I made my closing argument within that standard because I knew that Judge Bates was gonna-

[00:17:47] Speaker 04:
You said you made a motion.

[00:17:48] Speaker 00:
I made a motion for judgment of a quiddle.

[00:17:51] Speaker 04:
So there isn't a different standard that you proffered for Judge Bates to assess the corrupt purpose.

[00:17:58] Speaker 01:
That's absolutely correct.

[00:18:00] Speaker 06:
Even in your, just to clarify, because I thought you said you did a different argument on the judgment for a quiddle.

[00:18:04] Speaker 06:
Is that not true?

[00:18:05] Speaker 06:
You did consciousness of wrongdoing both in your closing argument and in your 29 motion for a judge.

[00:18:11] Speaker 00:
That's correct.

[00:18:13] Speaker 04:
I'm interested in your position on the sentencing enhancement and whether the electoral count certification was a judicial or related proceeding that determines rights or obligations under enhancement.

[00:18:29] Speaker 04:
And why is this not a proceeding that determines the obligations

[00:18:42] Speaker 04:
of the people of the country, the Congress, the candidates, and therefore within the definition?

[00:18:51] Speaker 00:
Well, the definition I'm arguing for is that it was a judicial-type proceeding, a see-free definition.

[00:18:56] Speaker 00:
And so the way I would comment, Your Honor's question is every governmental function, in some sense, determines rights and obligations of Americans, because that's what government does.

[00:19:08] Speaker 00:
The statute here is

[00:19:11] Speaker 00:
It would have been easier if the, I'm not the statute, I'm sorry, the guideline.

[00:19:14] Speaker 00:
If the guideline had said judicial proceeding, which is my theory, that would make it easier.

[00:19:19] Speaker 00:
If the guideline had said governmental function, which is basically what I understand the government's theory to be, that would be easy as well.

[00:19:27] Speaker 00:
Instead, the guideline uses this term that I admit, there's some ambiguity there.

[00:19:32] Speaker 00:
The government has some things I can say.

[00:19:34] Speaker 00:
I obviously have some arguments.

[00:19:36] Speaker 00:
So that's why I think the Seyfried case is a good one because it comes at the,

[00:19:41] Speaker 00:
comes at it from several angles and say all the different kinds of analysis taken together tips the balance in favor of judicial proceeding being the way harmonize that which I would submit is in keeping with what the apparent purpose of the guide.

[00:19:56] Speaker 03:
Well, let me ask you in that regard.

[00:20:00] Speaker 03:
Um,

[00:20:03] Speaker 03:
Did you look at the legislative history of the Electoral Act in terms of what Congress intended in this regard?

[00:20:14] Speaker 01:
I'm sorry, of the Electoral Count Act?

[00:20:17] Speaker 03:
That set up this procedure?

[00:20:20] Speaker 01:
I can't say it did.

[00:20:23] Speaker 01:
It was a particular part of the legislative history.

[00:20:26] Speaker 03:
Well, normally the standard is you look at the words, you look at the context,

[00:20:33] Speaker 03:
And you can look at the intent of the people who created it.

[00:20:38] Speaker 03:
And there is legislative history here that, at least in my view, does make it clear what was intended.

[00:20:46] Speaker 03:
Namely, it was debated on the floor of the House.

[00:20:53] Speaker 03:
And one view prevailed when the vote was taken.

[00:20:59] Speaker 03:
And why isn't that the end of the matter in so far as this court is concerned?

[00:21:05] Speaker 03:
Well, I'm not sure exactly what your honor is referring to, but the way I- Well, I'm referring specifically to the debate where Congressman Caldwell reported on the report of the special committee and Congressman Dibble

[00:21:29] Speaker 03:
took a different view and the committee's view prevailed.

[00:21:40] Speaker 03:
Why isn't that significant for determining what the act was intended to create and therefore relevant to interpreting the guideline?

[00:21:55] Speaker 00:
I confess I'm not familiar with the debate your honor is referring to, so I'm having difficult.

[00:21:59] Speaker 03:
Well, I'll take it then as a hypothetical, and I can give you citations if you want.

[00:22:03] Speaker 03:
I'm just surprised nobody looked at that.

[00:22:06] Speaker 03:
I didn't see it in either brief.

[00:22:11] Speaker 00:
Perhaps that's an oversight.

[00:22:12] Speaker 00:
I could readily believe that's an oversight on my part.

[00:22:14] Speaker 00:
I can't address it.

[00:22:15] Speaker 03:
Well, I'm not trying to place blame, but I'm just saying as a matter of analysis,

[00:22:23] Speaker 03:
Supreme Court instructs us how to look at these statutes and guidelines, and yet no one's brief talked about it, and neither did either of the district court opinions that are cited to us.

[00:22:38] Speaker 03:
And maybe there's some good reason for that, but I'm not aware of it.

[00:22:45] Speaker 03:
So you like one judge's view, but that judge cites a lot of things, but he doesn't talk about what the people who were voting on the statute intended.

[00:22:55] Speaker 03:
And the other district court, which is a different view, but also never refers to that.

[00:23:03] Speaker 03:
And it just struck me as odd.

[00:23:06] Speaker 03:
And do you know of anything that says that this court in trying to figure out

[00:23:15] Speaker 03:
how the guidelines should be interpreted is not to look at that type of history.

[00:23:22] Speaker 03:
What did Congress intend to create in this procedure?

[00:23:27] Speaker 00:
Is your honor referring to the sentencing guideline or to the electoral roll count?

[00:23:32] Speaker 03:
I think I'm referring to the statute and the guideline was implementing the statute.

[00:23:43] Speaker 00:
That's something I would have to address in a supplemental brief.

[00:23:46] Speaker 00:
It's not something I've looked at.

[00:23:50] Speaker 03:
Any reason you didn't?

[00:23:53] Speaker 00:
I don't think I came across it in my research that there was legislative history on whatever particular point Your Honor is referring to.

[00:23:59] Speaker 00:
Something I'll certainly look at.

[00:24:05] Speaker 04:
So Mr. Burnham, in the briefing, you

[00:24:11] Speaker 04:
characterize the electoral certification proceeding as ceremonial.

[00:24:18] Speaker 04:
Is that important to your argument?

[00:24:19] Speaker 04:
In particular, do you dispute that the electoral count certification that Congress was engaging in would play a legally operative role in presidential succession?

[00:24:33] Speaker 00:
That's exactly what the court means by legally operative.

[00:24:36] Speaker 00:
But it is relevant that the

[00:24:40] Speaker 00:
Electoral Count Act is largely ceremonial.

[00:24:43] Speaker 00:
The more something looks less like a judicial proceeding and more like a normal governmental function, and I agree it's not 100% bright line, the more likely it is to come outside the ambit of the statute.

[00:24:54] Speaker 00:
The Electoral Count Act is, as we've all learned in the past few years, is largely ceremonial.

[00:25:00] Speaker 00:
Usually it's just a matter of counting one, two, three, four, five.

[00:25:02] Speaker 00:
There are specific instances perhaps in which

[00:25:05] Speaker 00:
there can be objections.

[00:25:06] Speaker 00:
And then there's some kind of deliberation that might arguably look like getting into the nature of a deliberative process.

[00:25:15] Speaker 00:
But there's no witnesses.

[00:25:17] Speaker 00:
There's no parties.

[00:25:19] Speaker 00:
And even the scope of the decision that Congress is contemplated to make is so narrow.

[00:25:26] Speaker 04:
It's very structured.

[00:25:27] Speaker 04:
I think that's right.

[00:25:28] Speaker 04:
It's structured by the Constitution, and it's structured by the Electoral Count Act.

[00:25:33] Speaker 04:
But I'm not sure that cuss in your client's favor in the sense that, as you said, the guideline appears to apply to a judicial type proceeding.

[00:25:44] Speaker 04:
And the formality, the bringing of the certificates, the passing on their legitimacy, the raising of objections, and then the verdict on them, the certification on them, arguably is more

[00:26:00] Speaker 04:
judicial like than anything else, or almost anything else that the Congress does.

[00:26:06] Speaker 04:
And so I guess the question is, why doesn't that put it within the guideline rather than outside?

[00:26:16] Speaker 00:
Because we have to look at what happens after there's an objection.

[00:26:19] Speaker 00:
An objection, yes, it kind of sounds like something you would do in a judicial proceeding.

[00:26:23] Speaker 00:
But what happens after that?

[00:26:25] Speaker 00:
There's no judges.

[00:26:26] Speaker 00:
There's no procedure that I'm aware of for swearing and witnesses.

[00:26:29] Speaker 00:
It's not like an impeachment, for example.

[00:26:31] Speaker 03:
Well, all of this was debated.

[00:26:33] Speaker 03:
That's why I can't understand why no one looked at this legislative history for the statute.

[00:26:40] Speaker 03:
They drew analogies where members could raise questions about the certifications that were presented to it and get answers, presumably, from representatives from the state.

[00:26:55] Speaker 03:
or their colleagues from that state.

[00:27:01] Speaker 03:
I mean, this is openly debated.

[00:27:05] Speaker 03:
It's not hidden.

[00:27:06] Speaker 03:
It's in the congressional record.

[00:27:08] Speaker 03:
Anyone can read it.

[00:27:10] Speaker 03:
And so that's why I'm just wondering if Congress contemplated this was going to be more in the nature of a judicial proceeding

[00:27:25] Speaker 03:
and there's nothing to suggest that the guideline was implemented ignoring that congressional intent.

[00:27:36] Speaker 03:
Why isn't that significant?

[00:27:39] Speaker 03:
Why isn't that significant as a matter of analysis of trying to figure out how to look at this proceeding?

[00:27:52] Speaker 00:
Your honor, in answering that, I would draw a distinction between the guideline, which I admit is ambiguous.

[00:27:58] Speaker 00:
And so your honor's point is well taken that there might be some legislative history there that would be very helpful.

[00:28:02] Speaker 00:
I would submit the same is not true of the Electoral Count Act.

[00:28:06] Speaker 00:
The Electoral Count Act is much more clear to my mind than the guideline.

[00:28:09] Speaker 00:
Neither party is.

[00:28:10] Speaker 03:
Yes, but you didn't look at your knowledge.

[00:28:13] Speaker 03:
You didn't look at the debate.

[00:28:16] Speaker 00:
I do acknowledge that, Your Honor.

[00:28:17] Speaker 00:
The point I'm trying to make is the legislative history becomes more critical if you have an ambiguity.

[00:28:23] Speaker 00:
It's the normal procedure, right?

[00:28:25] Speaker 03:
Well, I think the district court opinions at both parties' side suggest that there are two ways to look at this whole procedure and what's involved.

[00:28:39] Speaker 04:
So just looking at the text of the Electoral Count Act, under section five of that act, the states are given an opportunity to resolve controversies over the election before January 6th.

[00:28:52] Speaker 04:
And they can do that under judicial or other methods or procedures.

[00:28:57] Speaker 04:
And if there were a court case in a state that was trying to resolve some challenges to their electoral slate,

[00:29:09] Speaker 04:
Would obstruction of that court case, in your view, fall under the administration of justice guideline?

[00:29:17] Speaker 00:
Your Honor uses the term court case.

[00:29:19] Speaker 00:
Obstruction of a court case certainly would.

[00:29:21] Speaker 04:
That's what I'm asking.

[00:29:22] Speaker 04:
And you say it would.

[00:29:23] Speaker 00:
Oh, sure.

[00:29:23] Speaker 04:
Yes.

[00:29:24] Speaker 04:
If the state had chosen to resolve a conflict over that through a court case.

[00:29:28] Speaker 00:
Oh, sure.

[00:29:30] Speaker 04:
So for you, the hard line is court case and not court case.

[00:29:33] Speaker 00:
Basically, there might be some ambiguous cases because judicial type proceeding, perhaps you could have an administrative proceeding with an administrative law judge.

[00:29:40] Speaker 00:
Maybe that's an edge case or something.

[00:29:43] Speaker 00:
But a court case, I think, is clear.

[00:29:44] Speaker 00:
It would apply to a court case.

[00:29:45] Speaker 00:
There's no question in my mind.

[00:29:47] Speaker 00:
And so the way I would frame the analysis is how similar and how different to a court case is the proceedings pursuant to the Electoral Account Act.

[00:29:56] Speaker 00:
That's helpful.

[00:29:57] Speaker 04:
And if it were a voting rights case in a court,

[00:30:02] Speaker 04:
Section 2 case or something like that.

[00:30:04] Speaker 04:
In your view, an effort to obstruct that, to interfere with the claims of voters that their votes were not given weight.

[00:30:12] Speaker 04:
That would also, obstruction of such a judicial proceeding would be under the administration of justice.

[00:30:18] Speaker 00:
No question about it, Your Honor.

[00:30:19] Speaker 00:
And I think that becomes clear if we go past the objection provisions in the electoral count and look at what happens next.

[00:30:28] Speaker 00:
The universe of issues to be decided is so narrow and the procedures are so unlike judicial proceedings that it would be error to include that the Electoral College in any way resembles a judicial proceeding because they're really not supposed to be according to most people's views.

[00:30:48] Speaker 00:
debating the election the way the court would.

[00:30:51] Speaker 00:
They're limited to saying.

[00:30:52] Speaker 04:
You could just spend more time in the district court.

[00:30:56] Speaker 04:
If somebody came before one of our trial judges on a summary judgment argument, and the question was, is this evidence sufficient?

[00:31:07] Speaker 04:
The analysis is not that different from the analysis at the electoral kind of certification proceeding, right?

[00:31:14] Speaker 04:
Is this evidence sufficient?

[00:31:15] Speaker 04:
Does it add up?

[00:31:16] Speaker 04:
to support for this candidate or that candidate?

[00:31:20] Speaker 00:
Well, I would look at it like this.

[00:31:22] Speaker 00:
The range of decisions that a district judge has to make is so vast compared to the Electoral College that the two are not comparable.

[00:31:28] Speaker 00:
The Electoral College, basically, the decision they have to make is, is this piece of paper the right one or this piece of paper?

[00:31:33] Speaker 00:
That's it, really, that all they can do under the Electoral Count Act, which is not different than what government agencies do all over the government.

[00:31:40] Speaker 06:
The difference that in a court case, you're adjudicating individual rights and applying the law to them

[00:31:46] Speaker 06:
and no one was adjudicating individual rights in the electoral count, correct?

[00:31:54] Speaker 00:
I agree with that completely.

[00:31:55] Speaker 06:
So they're not applying law to determine individual rights, nor is the force of the state, the force of law applied into the outcome.

[00:32:06] Speaker 06:
The goal is that people accept the electoral count certification by Congress, but Congress doesn't send troops out to enforce its decision.

[00:32:14] Speaker 00:
That's absolutely right.

[00:32:15] Speaker 06:
It doesn't send marshals out to enforce its decision.

[00:32:19] Speaker 06:
Is the electoral count act one of the statutes that this administration of justice guideline even applies to?

[00:32:28] Speaker 00:
No, I don't think so.

[00:32:30] Speaker 06:
It's not a relevant statute for purposes of the administration of justice guideline.

[00:32:33] Speaker 00:
No, I don't think there are criminal penalties at all under the electoral count.

[00:32:37] Speaker 06:
Okay.

[00:32:37] Speaker 06:
Can you tell me, you've argued that he shouldn't have had the three point enhancement.

[00:32:46] Speaker 06:
What would that affect him?

[00:32:48] Speaker 06:
If he didn't have it, what would his sentencing range have been as compared to what it was here?

[00:32:53] Speaker 00:
I can't remember the exact number, but it's significant.

[00:32:55] Speaker 00:
It's about a year difference or something for three points.

[00:32:57] Speaker 00:
And it's especially significant here because

[00:33:00] Speaker 00:
the judge sentenced the exact low end of the guidelines.

[00:33:03] Speaker 00:
24 months was the low end.

[00:33:05] Speaker 00:
And he even specifically said, I'm doing the low end because I might vary downward, but these reasons don't apply.

[00:33:10] Speaker 06:
So you've argued for it to be overturned, but haven't given the court any information about what if any consequence that would have for his sentence.

[00:33:17] Speaker 06:
If the 24 months would still be, even if the range shifted, it may well be that the 24 months would be at the high end of the new range rather than the low range, but the sentence might well be within the adjusted range, or it may not.

[00:33:28] Speaker 06:
I'm asking because I don't know.

[00:33:30] Speaker 00:
The sentencing guidelines would certainly be lower.

[00:33:32] Speaker 00:
I just blanking on the exact number, but it would be a significant lower sentence.

[00:33:36] Speaker 00:
And I think the law is clear that if there's a mistake in the sentencing guidelines, the judge could impose the safe sentence.

[00:33:42] Speaker 00:
No, I understand.

[00:33:42] Speaker 06:
I'm just trying to get a sense of whether the sentence that he received would even be absent of variance or departure, whether that would be even a permissible sentence or not.

[00:33:53] Speaker 06:
But I just don't know the answer to that.

[00:33:56] Speaker 06:
I take it you don't either.

[00:33:57] Speaker 00:
The guidelines were certainly significantly higher at that.

[00:34:00] Speaker 06:
It doesn't really answer that.

[00:34:02] Speaker 00:
Maybe I'm not understanding your honor's question.

[00:34:04] Speaker 06:
It will be helpful maybe on your rebuttal if you could tell us what the new guidelines range would be without the enhancement.

[00:34:10] Speaker 00:
I can do that, Your Honor.

[00:34:12] Speaker 05:
Any other questions for my colleagues?

[00:34:14] Speaker 05:
Judge Rogers?

[00:34:16] Speaker 05:
Thank you very much.

[00:34:17] Speaker 05:
Thank you, Your Honor.

[00:34:18] Speaker 05:
Thank you.

[00:34:29] Speaker 02:
Good morning, and may it please the court, Eric Hansford for the United States.

[00:34:34] Speaker 02:
Sufficient evidence supports the defendant's conviction for corrupt obstruction of an official proceeding under 1512C2.

[00:34:43] Speaker 02:
And the district court properly applied the guideline under the enhancement under guideline 2J1.2 for substantial interference with the administration of justice.

[00:34:55] Speaker 02:
I'll start on the 1512 issue.

[00:34:58] Speaker 02:
This court need not get into the issue that's currently pending before the court in Robertson because the most that's preserved in this case is a challenge to the sufficiency of the evidence in this case.

[00:35:11] Speaker 02:
And under either the Fisher concurrences standard for the sufficiency for corruption or under the government's preferred definition of corruption, there was sufficient evidence in this case.

[00:35:24] Speaker 02:
As the court has noted in the earlier argument that is a deferential standard,

[00:35:30] Speaker 02:
under Bryant, this court applies the same standard to district court to bench trials as to jury trials.

[00:35:39] Speaker 02:
And there was sufficient evidence in this case under either standard.

[00:35:43] Speaker 04:
But the district judge did not make any holding or findings to meet the standard.

[00:35:50] Speaker 04:
You're referring to the standard that Judge Walker

[00:35:52] Speaker 04:
would have applied.

[00:35:53] Speaker 04:
That's correct.

[00:35:54] Speaker 04:
The district judge made no, didn't purport to apply that standard or make any findings with regard to it.

[00:36:02] Speaker 04:
And is it your position that under Hilly, we nonetheless just assess the evidence?

[00:36:09] Speaker 02:
That's right, Your Honor.

[00:36:11] Speaker 02:
And that there's no, well, the problem is there's no objection to the lack of findings under the benefit standard that the benefit standard was never raised.

[00:36:22] Speaker 02:
We think it was invited air that it was affirmatively waived.

[00:36:25] Speaker 02:
But whether or not you think it's invited air, at least clearly plain air in the district court,

[00:36:30] Speaker 02:
We also think that it's been forfeited in this court because it has not been properly briefed.

[00:36:38] Speaker 02:
All that's been said is that for the reasons stated in the Fisher concurrence, this court should apply that standard.

[00:36:45] Speaker 02:
That sort of incorporation by reference is not a way to preserve.

[00:36:49] Speaker 06:
Incorporating another argument or something.

[00:36:51] Speaker 06:
He's incorporating case precedent.

[00:36:53] Speaker 06:
and saying for the reasons explained in the court's opinion, the concurring opinion, I adopt those same reasons as the concurring opinion.

[00:37:00] Speaker 06:
Those are the same reasons you should apply this test.

[00:37:03] Speaker 06:
I don't know why that's not, you were able to respond to the argument.

[00:37:06] Speaker 06:
I don't understand why that doesn't put you on notice and the court on notice of what his argument is, even if it's not

[00:37:11] Speaker 06:
It's not skeletal.

[00:37:13] Speaker 06:
It's not hinting at an argument.

[00:37:14] Speaker 06:
We know precisely what he's arguing for.

[00:37:17] Speaker 02:
Well, so two things.

[00:37:18] Speaker 02:
One is whether it's clear what's being argued or not.

[00:37:23] Speaker 02:
Incorporation by reference is not a way to preserve an argument.

[00:37:26] Speaker 06:
Have we held that when someone says, I'm agreeing with X opinion?

[00:37:33] Speaker 06:
I mean, by reference, as I argued in my district court brief, doesn't count.

[00:37:36] Speaker 06:
I guess you got that.

[00:37:39] Speaker 06:
I said that as applied to I, I'm, I'm all in with X opinion.

[00:37:46] Speaker 02:
I mean, I, I'm not sure why that would be a different standard, but I think the second point is maybe more responsive to this, which is citations and arguments about cases.

[00:37:57] Speaker 06:
If he's done enough to invoke the case law and stand on it, I don't know why we would.

[00:38:05] Speaker 06:
You don't claim that you weren't on sufficient notice to brief the issue.

[00:38:09] Speaker 02:
He's not asking the concurrency standard because the concurrency standard says that it is met by seeking to give

[00:38:19] Speaker 06:
about the corporation argument.

[00:38:21] Speaker 06:
He's arguing something that he just wasn't arguing.

[00:38:25] Speaker 02:
But it's both.

[00:38:26] Speaker 02:
We don't know what his standard is.

[00:38:28] Speaker 02:
He's saying apply the Fisher concurrency standard.

[00:38:32] Speaker 02:
But he's saying there's some, the Fisher concurrency is applying the standard wrong.

[00:38:37] Speaker 02:
So we don't have a target to aim at in terms of what the actual objection is.

[00:38:45] Speaker 06:
Consciousness of wrong.

[00:38:46] Speaker 06:
Yes.

[00:38:47] Speaker 06:
The district court applied here.

[00:38:48] Speaker 02:
Yes.

[00:38:49] Speaker 02:
What does wrongdoing mean?

[00:38:51] Speaker 02:
What does wrongdoing mean?

[00:38:53] Speaker 02:
I mean, I think what's clearly covered is unlawfulness, which is what North... Sorry, so you need to be conscious that you're violating the law?

[00:39:04] Speaker 06:
You need to be conscious... That's specific intent.

[00:39:07] Speaker 06:
It doesn't always say in North that corrupt is more than specific intent.

[00:39:15] Speaker 02:
So corrupt does require a specific intent, as in an intent to impede, which is kind of a separate requirement.

[00:39:24] Speaker 04:
But not specific intent in the sense of intent to violate the law as such.

[00:39:30] Speaker 04:
I think we rejected that.

[00:39:32] Speaker 02:
So consciousness of wrongdoing means you are aware that you are at least violating the law.

[00:39:37] Speaker 02:
We do think it's broader.

[00:39:39] Speaker 02:
We think wrongfulness is broader.

[00:39:41] Speaker 02:
And we think that's true.

[00:39:43] Speaker 06:
So tell me.

[00:39:44] Speaker 06:
So you have to at least have this, but is that enough?

[00:39:48] Speaker 02:
So it's sufficient if you are conscious that you are violating the law.

[00:39:53] Speaker 02:
It would also be, I think we haven't had to go beyond that in the January 6 cases, but I think it would also be sufficient if you understand that what you are doing is improper, you know, potentially breach of

[00:40:10] Speaker 02:
court rules or something that wouldn't necessarily impose legal standards.

[00:40:17] Speaker 02:
But January 6, these January 6 cases, all this court need resolve is that you are consciously violating.

[00:40:27] Speaker 04:
It would be helpful to have a standard.

[00:40:30] Speaker 04:
I understand that wrongdoing encompasses

[00:40:36] Speaker 04:
independently unlawful conduct, as well as conduct that might not be independently unlawful.

[00:40:42] Speaker 04:
And one obvious candidate in the latter category would be lying.

[00:40:48] Speaker 04:
Lying isn't always unlawful, but someone who acts in a way that

[00:40:53] Speaker 04:
They lie to get what they want.

[00:40:56] Speaker 04:
They run into the Capitol, a lone person, and say there's a bomb threat when there isn't.

[00:41:02] Speaker 04:
Even if that weren't independently unlawful, if they're doing that in order to stop the electoral account, presumably that would be corruptly.

[00:41:14] Speaker 04:
And I guess I would like the government's help.

[00:41:16] Speaker 04:
But as I read, consciousness of wrongdoing, its origins are in the Arthur Anderson

[00:41:22] Speaker 04:
decision, and it's not used there as a legal standard.

[00:41:25] Speaker 04:
It's used there as part of the description about why the Supreme Court found the conviction inadequate because the way that the jury have been charged stripped out any consciousness of wrongdoing, any

[00:41:45] Speaker 04:
purpose or intent or mens rea standard.

[00:41:48] Speaker 04:
And then it seems like in these January 6 cases, consciousness of wrongdoing has become this sort of as if it's a legal standard.

[00:41:56] Speaker 04:
I'm not sure that it is.

[00:41:59] Speaker 04:
And I'm interested in the government's view about what is the, you know, do you have anything more to say about corrupt purpose other than that it is met in your view by, well, by I'm not sure what.

[00:42:15] Speaker 04:
uh, some kind of intent or awareness or intent to do things that the law independently forbids.

[00:42:21] Speaker 02:
So, so I mean, to start with the premise of the question, I think consciousness of wrongdoing is a legal standard.

[00:42:27] Speaker 02:
That's where we take that from Arthur Anderson.

[00:42:30] Speaker 02:
And I think, you know,

[00:42:32] Speaker 02:
You know, Arthur Anderson may be frustrating in kind of failing to spell out exactly what all of this means.

[00:42:40] Speaker 02:
But these are standards found in Arthur Anderson.

[00:42:43] Speaker 02:
Arthur Anderson says the problem in that what is corrupt is what is wrongful.

[00:42:50] Speaker 02:
And the problem in that case is that the jury was not told that they needed to find consciousness of wrongdoing.

[00:42:56] Speaker 02:
I think multiple circuits have then taken that and applied that standard and have asked for that standard to be met.

[00:43:06] Speaker 02:
And so I agree it's not kind of a traditional mens rea in terms of purpose, knowledge, recklessness, negligence, but we read Arthur Anderson to say that is the legal standard that is required.

[00:43:19] Speaker 04:
I urge you to reread Arthur Anderson.

[00:43:24] Speaker 04:
The court says that knowingly doesn't modify, corruptly persuades.

[00:43:35] Speaker 04:
The Supreme Court says that corrupt and corruptly are normally associated with wrongful, immoral, depraved, or evil.

[00:43:49] Speaker 04:
Only persons conscious of wrongdoing can be said to, quote, knowingly, corruptly persuade, close quote.

[00:43:57] Speaker 04:
And limiting criminality to persuaders conscious of their wrongdoing sensibly allows the statute to reach only those with level of culpability we usually require.

[00:44:07] Speaker 04:
So we usually, what basically the court is saying, we usually require some element in the criminal law that defines the requisite consciousness of wrongdoing.

[00:44:20] Speaker 04:
And it seems like the government has just taken that phrase.

[00:44:27] Speaker 04:
You need to pick some consciousness of wrongdoing and decline to pick any consciousness of wrongdoing.

[00:44:33] Speaker 02:
I mean, so just in what the court read, I think it's the prior sentence before the Aguilar and Liberada sites.

[00:44:42] Speaker 02:
It's the sentence before that, the only person's conscious of wrongdoing can be said to knowingly, corruptly persuade.

[00:44:50] Speaker 02:
I think that's where corrupt consciousness of wrongdoing is imposed as a legal standard.

[00:44:56] Speaker 02:
It's not

[00:44:56] Speaker 02:
The Supreme Court says in the next paragraph, we're not sketching out the outer limits of it, which is why we're here.

[00:45:03] Speaker 02:
Right.

[00:45:03] Speaker 04:
The outer limits of this element need not be explored here because the jury instruction and issues simply fail to convey the requisite consciousness of wrongdoing.

[00:45:11] Speaker 04:
So it's pointing to a variable, a type of element needed in a criminal case and not resolving that, at least

[00:45:23] Speaker 04:
I mean, I guess maybe another way to get at this is, can you respond to Mr. Burnham's concern that consciousness of wrongdoing is a very capacious standard?

[00:45:39] Speaker 04:
And someone who thinks it's wrong not to address people with formal titles could be conscious that they erred in that way?

[00:45:53] Speaker 02:
So I mean, I think the narrowing construction here is the unlawfulness.

[00:45:59] Speaker 02:
It's that you need not, although wrongdoing, as in Arthur Anderson, you need not explore the outer boundaries.

[00:46:08] Speaker 02:
If you are conscious that you are acting unlawfully, then you are satisfying that wrongdoing standard under any.

[00:46:15] Speaker 04:
It's unclear to me whether you're saying in the screws type specific intent, you have to be conscious that it is unlawful.

[00:46:22] Speaker 04:
to be in a restricted area?

[00:46:25] Speaker 04:
Do you have to be conscious that it is unlawful to be disruptive in the Capitol?

[00:46:30] Speaker 02:
So you don't have to know kind of chapter and verse of Title 18?

[00:46:33] Speaker 04:
I take that to be your view, yes.

[00:46:34] Speaker 02:
Correct.

[00:46:35] Speaker 04:
How does it get into the mens rea element?

[00:46:36] Speaker 02:
But you have to be aware that what you are doing is not allowed by the law.

[00:46:44] Speaker 03:
So when you say you don't need chapter and verse, what about all these demonstration cases?

[00:46:50] Speaker 03:
In other words, you may, as a future defendant, believe in the righteousness of your acts and for a higher purpose.

[00:47:02] Speaker 03:
But someone who so far as appears is a representative of law enforcement states that you must leave and you'd fail to leave.

[00:47:20] Speaker 03:
And then with the other things that Judge Pillard mentioned in questioning appellants council, that you have that consciousness of wrongdoing that rises to the level of corrupt behavior because of at least

[00:47:48] Speaker 03:
And this is where it's tricky for me.

[00:47:50] Speaker 03:
The law enforcement representative represents that you are interfering with a lawful, otherwise lawful congressional proceeding, indeed one constitutionally required.

[00:48:11] Speaker 03:
Why isn't that critical in these cases?

[00:48:14] Speaker 03:
I mean, I haven't,

[00:48:17] Speaker 03:
studied each and every January 6th case.

[00:48:22] Speaker 03:
But the cases I have looked at, there has been advice before arrest, or there have been the traditional law enforcement symbols, namely barricades, signs, et cetera, that are being ignored.

[00:48:47] Speaker 03:
Why isn't that sufficient?

[00:48:51] Speaker 03:
And I guess the next question is, is that going to always be sufficient for purposes of corruptly or has corruptly been watered down to this notion of consciousness of wrongdoing?

[00:49:09] Speaker 02:
So you do have that sort of evidence in this case you've got that judge bates finding it's inconceivable that he wouldn't have noticed these overturned barriers that he's walking in next to broken windows that he's walking past police officers seeing officers assaulted.

[00:49:26] Speaker 02:
And just in terms of your question, it's important to note, consciousness of wrongdoing is only one requirement of the corruptly.

[00:49:34] Speaker 02:
In addition, there's a requirement that you be either using unlawful means or be acting with an unlawful purpose.

[00:49:43] Speaker 04:
Well, this is the unlawful purpose.

[00:49:45] Speaker 04:
I thought that's what we were talking about.

[00:49:46] Speaker 04:
Right, yes.

[00:49:48] Speaker 03:
I'm now in the argument that Helen's making.

[00:49:53] Speaker 02:
I mean, I guess I'm confused as well, Your Honor.

[00:49:57] Speaker 02:
I thought we were talking about consciousness of wrongdoing and what is required by consciousness of wrongdoing.

[00:50:01] Speaker 04:
I thought consciousness of wrongdoing was the corrupt purpose that you were standing on in this case.

[00:50:11] Speaker 04:
I know that some of the jury instructions have layers of knowledge and conscious wrongdoing and unlawful purpose or corrupt purpose.

[00:50:22] Speaker 04:
You know, that's belt and suspenders.

[00:50:24] Speaker 04:
I was asking, what is the government's view?

[00:50:26] Speaker 04:
And the way this case was tried and the way it was decided, well, I should say the way it was decided was on, when you're talking about corrupt purpose or corrupt means, it was decided on the corrupt purpose avenue.

[00:50:42] Speaker 02:
Am I right?

[00:50:43] Speaker 02:
I mean, we think the jury or the district court's verdict also supports corrupt means, but I think that is not explicitly what Judge Bates said, although he made findings that would also support corrupt means.

[00:50:57] Speaker 04:
All right, setting that aside, because the district court, as I read, only made findings with respect to corrupt purpose.

[00:51:05] Speaker 04:
Is it your view, what counts as corrupt purpose under

[00:51:12] Speaker 02:
1512 C. So wrongful purpose, which I understand the court's frustration with the term wrongful, but that is because then you were so I thought you were answering.

[00:51:23] Speaker 04:
I'm sorry.

[00:51:24] Speaker 04:
Interrupted when you were answering to Judge Rogers and you said, well, it doesn't only require a

[00:51:31] Speaker 04:
consciousness of wrongdoing, it also requires corrupt means or corrupt purpose.

[00:51:35] Speaker 04:
And that's where you brought me up short, because that had not been my understanding.

[00:51:39] Speaker 02:
Sure.

[00:51:39] Speaker 02:
So the government position, which I think is laid out in our brief and in Robertson, is there are two prongs as to what corruptly requires.

[00:51:49] Speaker 02:
The first prong has alternatives.

[00:51:52] Speaker 02:
You can either act by corrupt means or corrupt purpose.

[00:51:57] Speaker 02:
The second prong, which has to be additionally satisfied, is you have to have consciousness of wrongdoing.

[00:52:03] Speaker 02:
You have to meet either corrupt means or- Consciousness of wrongdoing alone is not enough to establish- Correct.

[00:52:10] Speaker 02:
Consciousness of wrongdoing, I mean, in many cases,

[00:52:15] Speaker 02:
It could, you know, the same evidence may well be establishing these things, but what you have to, you have to know that you are doing wrong and you have to either be acting independently unlawfully or have an unlawful aim.

[00:52:29] Speaker 02:
Here, the unlawful aim would be overturning the election through improper procedures.

[00:52:35] Speaker 02:
You know, what he describes as I'm ready to actively rebel.

[00:52:39] Speaker 02:
I'm engaging in insurrection.

[00:52:41] Speaker 06:
So what's a corrupt purpose if I know I'm breaking the law?

[00:52:45] Speaker 06:
That's not enough.

[00:52:46] Speaker 06:
What is a corrupt purpose?

[00:52:48] Speaker 02:
So a corrupt purpose is what you are trying, what you are intending to do through your actions.

[00:52:53] Speaker 02:
So you know you are, you know, you know you are breaking the law when you are standing up and shouting in in.

[00:53:04] Speaker 02:
Sure.

[00:53:06] Speaker 02:
You know, the fact that you know you are breaking the law is not enough.

[00:53:10] Speaker 02:
You're also looking at what is your purpose in acting here.

[00:53:14] Speaker 02:
And in the January 6th cases, the purpose in acting is to overturn the election through not the normal channels, not the lawful channels.

[00:53:25] Speaker 02:
And so that is the purpose with which Brock and many other January 6th.

[00:53:34] Speaker 06:
The civil rights protester wants to go sit at a lunch counter and knows they're violating city law, maybe even state law.

[00:53:45] Speaker 06:
but also knows that what they're doing is protected by the Constitution or believes that it's protected by the Constitution.

[00:53:54] Speaker 06:
Let's say it's from court hadn't ruled yet, but there's a pattern of case law.

[00:53:57] Speaker 06:
They believe it's protected by the Constitution, good faith and reasonable belief that it's protected by the Constitution.

[00:54:03] Speaker 06:
Is that knowledge of wrongfulness and or corrupt purpose?

[00:54:07] Speaker 02:
I think if they believe it's protected by the Constitution, then I think

[00:54:13] Speaker 02:
it wouldn't, they wouldn't, they presumably wouldn't have consciousness of wrongdoing.

[00:54:17] Speaker 02:
Yeah.

[00:54:17] Speaker 06:
So then isn't that Mr. Brock's argument here that he thought, yeah, all right, maybe I'm violating some, or maybe the court could find that I was breaking some rules governing the conduct on the Capitol grounds.

[00:54:33] Speaker 06:
But in his view,

[00:54:37] Speaker 06:
a greater constitutional harm was occurring and the Constitution properly applied and implemented, I'm just describing his view, required that that electoral vote count, which in his view was all fraudulent, stop and the right one occur.

[00:54:57] Speaker 06:
I was at, if he thought violating local law, but I am doing it in service of the correct constitutional, what the constitution requires, which is an accurate vote count.

[00:55:10] Speaker 06:
And he didn't think that's what was going on.

[00:55:13] Speaker 02:
So there's nothing in the record to suggest he thought this was protected by the Constitution.

[00:55:21] Speaker 02:
The record evidence is that he thought it was kind of a greater good in the sense of a pro-life person might kill an abortion doctor

[00:55:31] Speaker 06:
No, I think he was clear.

[00:55:32] Speaker 06:
He thought that, in fact, what was going on, and again, these are just his view, but we're talking here about a mens rea, that what was going on was actually a corrupt, fraudulent vote count, that that wasn't the true electoral outcome.

[00:55:47] Speaker 06:
And the Constitution, of course, requires an accurate electoral count of the true electoral votes.

[00:55:54] Speaker 06:
Now, he could be factually wrong.

[00:55:58] Speaker 06:
But he thought he was doing and you said your reasonable good faith belief that that's what the Constitution required.

[00:56:05] Speaker 06:
If he had at least a good faith belief that that's what the Constitution required that this vote counts stop.

[00:56:12] Speaker 06:
It's disenfranchising me and everybody else who voted otherwise.

[00:56:18] Speaker 06:
So why isn't that?

[00:56:19] Speaker 06:
How is that different from the civil rights protest?

[00:56:21] Speaker 02:
I mean, because the so first, I'm not adopting a good faith, reasonable belief standard.

[00:56:28] Speaker 02:
I don't think kind of the exact standard would have been briefed here.

[00:56:31] Speaker 02:
But the

[00:56:33] Speaker 02:
There is no evidence that he thought that what he was doing was proper, that he was allowed to interrupt the Congress.

[00:56:40] Speaker 06:
Allowed by the Constitution?

[00:56:43] Speaker 02:
Allowed by the law, yeah, Constitution or statutory.

[00:56:46] Speaker 06:
I guess I think, and again, not to equate what happened with civil rights protesters, but just mentally you have the thing, at least in his view,

[00:56:56] Speaker 06:
the constitution required a different electoral vote process than was occurring, and he's feeling disenfranchised.

[00:57:04] Speaker 06:
If he's not, then just say, my hypothetical protester does.

[00:57:08] Speaker 06:
It's being disenfranchised.

[00:57:10] Speaker 06:
And so I don't believe I'm engaged in knowing law breaking.

[00:57:17] Speaker 06:
I believe I am knowing, engaged in constitutional vindication.

[00:57:21] Speaker 06:
It could be wrong.

[00:57:23] Speaker 06:
People at the lunch counters could have been wrong.

[00:57:25] Speaker 06:
It turned out they weren't, unfortunately, for our country.

[00:57:27] Speaker 06:
But they could have been wrong.

[00:57:30] Speaker 06:
The Supreme Court for many, many, many years before that would have said you don't have a right to sit at the lunch counter.

[00:57:35] Speaker 02:
So the layering on of the Constitution is not what was argued in this case.

[00:57:41] Speaker 02:
He's been arguing greater moral good, not I believed that my actions were actually constitutionally protected.

[00:57:49] Speaker 06:
Well, he argued in his second year brief.

[00:57:51] Speaker 06:
He wanted a clean slate of electors.

[00:57:53] Speaker 06:
Submitted to Congress, but you want them voting on it when he called a clean slate electors.

[00:57:57] Speaker 06:
I'm quoting your brief.

[00:57:58] Speaker 02:
So, so this is this is kind of a reasonable jury argument that he didn't he actually thought that he was not doing wrong.

[00:58:09] Speaker 02:
He did was not violating the law that that is a jury argument you could make whether or not something statutory in the jury.

[00:58:18] Speaker 06:
If someone says that he has your perfect record for this.

[00:58:22] Speaker 06:
What would the instruction be to the jury on what the consciousness of wrongdoing is when the defense is, I believe I'm protecting and defending the constitution, but I admit I'm breaking local laws.

[00:58:39] Speaker 06:
I don't understand that.

[00:58:45] Speaker 02:
No, I don't understand the distinction between breaking the law and protected by the Constitution.

[00:58:50] Speaker 02:
If it's protected by the Constitution, it's not breaking.

[00:58:53] Speaker 06:
It's easier if you think of it in the lunch counter sit-in.

[00:58:56] Speaker 06:
Clear violation of state and local law, but clearly permitted, in this person's view at the time, by the Constitution.

[00:59:05] Speaker 06:
Is the only difference that they turned out to be right?

[00:59:09] Speaker 02:
No, Your Honor.

[00:59:10] Speaker 06:
I mean, it's- They both have consequences of wrongdoing?

[00:59:12] Speaker 02:
So the lunch pro-

[00:59:14] Speaker 02:
Protester is obviously not guilty of obstruction for many other reasons.

[00:59:18] Speaker 02:
There's no official proceeding.

[00:59:19] Speaker 06:
But they're guilty.

[00:59:20] Speaker 06:
I'm just asking about conscience of the wrongs.

[00:59:22] Speaker 06:
Sure.

[00:59:22] Speaker 06:
So I'm asking whether they knew they, they say, I know they knew that's what the civil rights protest.

[00:59:29] Speaker 06:
They knew they were violating local laws and they did so to advance their view of what in fact the correct

[00:59:39] Speaker 06:
constitutional rule of law is.

[00:59:41] Speaker 02:
If you think your activity is constitutionally protected.

[00:59:46] Speaker 02:
I'm trying to learn.

[00:59:49] Speaker 02:
If the protester thinks that the activity is constitutionally protected, then yes, they wouldn't think it's unlawful.

[00:59:57] Speaker 02:
They wouldn't think it's what?

[01:00:01] Speaker 02:
they wouldn't think it's unlawful what the constitution protects.

[01:00:06] Speaker 03:
The lunch counter cases, that's one set of demonstration cases.

[01:00:10] Speaker 03:
There are other sets of demonstration cases where people thought they were pursuing a constitutionally protected right.

[01:00:22] Speaker 03:
And yet they failed to get that

[01:00:27] Speaker 03:
recognized even to this day by the Supreme Court.

[01:00:33] Speaker 03:
So what I'm trying to get at, that's why I thought you were arguing what I had asked earlier.

[01:00:44] Speaker 03:
But now it seems we've gotten very far afield.

[01:00:51] Speaker 03:
And what I thought the district court was doing and I thought Judge Pillard's

[01:00:57] Speaker 03:
question to appellants council was getting at was given everything that was going on, the objective facts were such that no matter how righteous you may feel in your personal action, no one, and at least

[01:01:26] Speaker 03:
A fact finder could find no one in that position would be able to think rationally that this was lawful conduct.

[01:01:41] Speaker 03:
There are many ways to challenge an election.

[01:01:44] Speaker 03:
There are many ways to challenge a certification proceeding as this legislative history no one apparently has read or even considered

[01:01:56] Speaker 03:
discusses.

[01:01:59] Speaker 03:
So this is not the end of the matter.

[01:02:02] Speaker 03:
And I've been trying to come up with something that's relatively clear.

[01:02:08] Speaker 03:
And I thought that's what Judge Pillard's questions were trying to get at, so that we don't have this fuzziness.

[01:02:16] Speaker 03:
But it seems to me that if we're into constitutional rights and looking

[01:02:22] Speaker 03:
20 years down the road at what the Supreme Court's going to do to your claim of a constitutional right, that's not the way the law has proceeded, even in a lot of these demonstration cases.

[01:02:37] Speaker 03:
And I'm thinking, for example, of one's claim to equality of spending on public education.

[01:02:45] Speaker 03:
That's one area.

[01:02:50] Speaker 03:
So I'm not sure why the government wants to go too far in this matter when what I thought the district court was focusing on was taking everything that's relevant here.

[01:03:09] Speaker 03:
I completely agree.

[01:03:13] Speaker 02:
What?

[01:03:14] Speaker 02:
I completely agree Judge Rogers.

[01:03:16] Speaker 02:
I think that is the standard that the district court was applying, was applying the standard of there is no, was finding that Brock did not believe that he was acting lawfully, was applying that, was making those findings based on the full facts of the case, that there are ways to kind of

[01:03:38] Speaker 02:
contest the election, but it's not through rebellion, it's not through insurrection, it's not through kidnapping members of Congress.

[01:03:46] Speaker 02:
So I certainly agree completely with what the question is, and we are not seeking to go down the road of... The problem is that you've said the two-part test, consciousness of wrongdoing and improper purpose.

[01:04:01] Speaker 02:
Or independently unlawful means.

[01:04:03] Speaker 06:
Yeah, or the district court said properly requires showing dishonesty and improper purpose or consciousness of wrongdoing did not do the two part right.

[01:04:15] Speaker 06:
And so we're back struggling with.

[01:04:19] Speaker 06:
What's required was shown on the record.

[01:04:22] Speaker 06:
Do you think the court aired by not separately finding purpose?

[01:04:26] Speaker 02:
I mean, we we acknowledge that the in our brief, we acknowledge that is not the proper articulation.

[01:04:33] Speaker 02:
There's there's kind of

[01:04:35] Speaker 02:
problematic bracketing if you go back to the decision that's being quoted.

[01:04:39] Speaker 02:
But our argument is that in the full record, the district court did make the necessary findings and the defendant is not contesting that in his briefing and did not object to it.

[01:04:56] Speaker 06:
consciousness of wrongdoing.

[01:04:59] Speaker 06:
And in addition, presumably based on some additional evidence, I provide a different legal test.

[01:05:05] Speaker 06:
I provide corrupt purpose.

[01:05:08] Speaker 06:
So I find corrupt purpose.

[01:05:10] Speaker 02:
This is our paragraph on 28 to 29, the carryover paragraph.

[01:05:16] Speaker 05:
I'd like you to put in a district court's decision.

[01:05:20] Speaker 02:
Yeah.

[01:05:23] Speaker 02:
The findings we point to there, there are more, is A462 to 463, Brock's Facebook messages support that he knew obstructing the election certification on January 6th was improper.

[01:05:35] Speaker 06:
For UJA, page what?

[01:05:36] Speaker 02:
462 to 463.

[01:05:41] Speaker 02:
And then A475, Brock acted with the intent to do something that the law forbids, that is to disobey or disregard the law.

[01:05:49] Speaker 02:
So we- That's the consciousness of wrongdoing.

[01:05:52] Speaker 06:
That is the consciousness of wrongdoing, yes, and- Where did the district court know it was finding something separate from consciousness of wrongdoing?

[01:06:03] Speaker 02:
So first, these are not preserved objections on appeal.

[01:06:08] Speaker 02:
They're not preserved objections.

[01:06:10] Speaker 06:
The government's here telling me, the fact that the government's up here, if they're telling me the district court didn't make the right legally required findings.

[01:06:19] Speaker 02:
But our position is the the district court did make their right.

[01:06:23] Speaker 02:
So it's a 462 before 63 rocks Facebook messages.

[01:06:30] Speaker 02:
He flipped to it.

[01:06:36] Speaker 02:
Brock's Facebook messages support that he knew obstructing the election certification on January 6th was improper.

[01:06:43] Speaker 06:
But he's done this.

[01:06:44] Speaker 06:
His opening line is fourth I find is what I quoted to you that dishonesty and improper purpose or consciousness of wrongdoing.

[01:06:56] Speaker 06:
Right.

[01:06:56] Speaker 06:
And so

[01:06:59] Speaker 06:
He's going here through, it's all proving the one thing.

[01:07:04] Speaker 02:
If the court thinks that the district court was not, we've argued the district court was applying the right standard that we acknowledge that that or should have been, should not have been bracketed like that.

[01:07:16] Speaker 02:
If the concern here is that the district court might not have been applying the right standard,

[01:07:20] Speaker 02:
which is not preserved below and is not preserved on appeal, but it would not be, you know, improper to remand for clarification as that specific finding, but that is not the kind of larger legal issue that's either being argued or the definition of corrupt.

[01:07:42] Speaker 06:
On 463, he says he clearly intended to take very purposeful actions to interfere with any certification of the election and even take actions aborted on violent conduct.

[01:07:54] Speaker 06:
And you're saying that's, you clearly intend to take purposeful actions to interfere with the congressional proceeding.

[01:08:03] Speaker 06:
Is that an improper purpose?

[01:08:06] Speaker 06:
Because in our case, they're filled with examples of that that are perfectly legitimate.

[01:08:10] Speaker 02:
The quote in our brief, I'm trying to find it in the JA, but is 462 to 463, Rock's Facebook messages support that he knew obstructing the election certification on January 6th was improper.

[01:08:28] Speaker 06:
But then he continues with, he was prepared to break the law.

[01:08:33] Speaker 06:
My aim is to misbehave.

[01:08:35] Speaker 06:
Right.

[01:08:35] Speaker 06:
Hoping we don't get arrested.

[01:08:37] Speaker 06:
I'm having trouble understanding, is that consciousness the wrong doing or improper purpose?

[01:08:42] Speaker 06:
Or is there a difference between the two?

[01:08:43] Speaker 06:
Not really a difference between the two.

[01:08:45] Speaker 02:
So there is a difference between the two in the abstract, but I think those.

[01:08:49] Speaker 06:
In the law.

[01:08:51] Speaker 06:
Well, whether.

[01:08:52] Speaker 06:
Difference in the law.

[01:08:54] Speaker 02:
In the law, yes.

[01:08:56] Speaker 02:
If you know you are breaking the law and if you have an unlawful purpose, those are different standards that you're asking the jury to find.

[01:09:05] Speaker 06:
Unlawful purpose is trying to make Congress stop doing?

[01:09:08] Speaker 02:
To overturn the election through unlawful means.

[01:09:13] Speaker 04:
Unlawful means.

[01:09:14] Speaker 04:
That's not the purpose, then you've added unlawful means.

[01:09:18] Speaker 04:
Let me ask a slightly different question, but it's related, which is, in North, this court talks about, corruptly, and I'm in North on page 882, Federal Quarter Second 882, where the court says,

[01:09:43] Speaker 04:
In the context of judicial proceedings, corruptly means nothing.

[01:09:49] Speaker 04:
Some is referring to other courts of appeals.

[01:09:51] Speaker 04:
It means nothing more than an intent to obstruct the proceeding.

[01:09:55] Speaker 04:
And in doing so, they haven't read the corrupt intent requirement out of the statute.

[01:09:59] Speaker 04:
And it goes on and says that there are very few non-corrupt ways or reasons for intentionally obstructing a judicial proceeding.

[01:10:09] Speaker 04:
And then the court talks about when someone is intentionally obstructing a judicial proceeding as structured and not open to lobbying and legislative jousting as a judicial proceeding is and intend to obstruct it, is itself presumptively corrupt.

[01:10:31] Speaker 04:
And then the court goes along in the second sentence and talks about, well, unlike courts of law, congressional committees

[01:10:40] Speaker 04:
are part and parcel of a political branch, wide-ranging functions, not limited to a search for truth in accordance with formal rules.

[01:10:48] Speaker 04:
They may have far-flowing investigative scope and evoke legitimate political jousting.

[01:10:52] Speaker 04:
So in that context,

[01:10:54] Speaker 04:
we need more than intent to obstruct the proceeding.

[01:10:58] Speaker 04:
This is a lot of lead up.

[01:11:00] Speaker 04:
But my question is, in the context of the certification of the electoral count, given how formal it is, given how structured it is, given that it's not open to political jousting, is it the government's position that an intent to obstruct that proceeding

[01:11:27] Speaker 04:
is an intent to act correctly.

[01:11:30] Speaker 04:
And I'm bracketing not an intent to influence, but an intent to obstruct, or we could even say an intent to obstruct by mob.

[01:11:41] Speaker 02:
I mean, that is not the argument we've been making.

[01:11:51] Speaker 02:
we do view intent to obstruct as a wholly separate element, separate from corruptly.

[01:11:58] Speaker 02:
And so Judge Bates gave a separate finding that there was an intent to obstruct.

[01:12:06] Speaker 02:
I think that was his second element.

[01:12:07] Speaker 02:
And then the fourth element was also there was corrupt acting.

[01:12:12] Speaker 02:
In terms of whether or not in practice, those will often collapse, if that's the court's question.

[01:12:21] Speaker 02:
or conceivably whether.

[01:12:23] Speaker 04:
Would it be enough if a district court in a bench trial said, I find consciousness of wrongdoing because of the visuals of overcoming the police and storming the Capitol, broken windows, alarms, and I find a corrupt purpose because there's a purpose to

[01:12:51] Speaker 04:
by mob action, obstruct this proceeding.

[01:12:57] Speaker 04:
And when you say causes of wrongdoing, that this is it, and maybe this is a means question, but at some level,

[01:13:05] Speaker 04:
As you point out, the evidence of the two avenues may overlap.

[01:13:09] Speaker 04:
And its purpose to obstruct by mob, it seems like you're having a purpose to act.

[01:13:18] Speaker 04:
Maybe there's a higher purpose that could be served through First Amendment protected means.

[01:13:27] Speaker 04:
But when the purpose of this conduct is to obstruct by mob and strike terror into the hearts of the lawmakers

[01:13:36] Speaker 04:
was the Secret Service take off site or something along those lines?

[01:13:42] Speaker 04:
Wouldn't the purpose or intent to obstruct this proceeding by mob action?

[01:13:53] Speaker 04:
What more corruption do you need?

[01:13:55] Speaker 04:
Independent of lawful action.

[01:13:57] Speaker 02:
With the kind of proviso that I can't bind the department to future prosecutions or positions, it would seem in thinking through that right here that that would, if you've got a district court who's making those findings,

[01:14:15] Speaker 02:
who's making the findings that obstructing January 6th, the electoral certification by mob action is going to establish corruptly because it's consciousness of wrongdoing.

[01:14:27] Speaker 02:
Anybody who was there would have understood it was unlawful.

[01:14:31] Speaker 02:
And there's both, I would say.

[01:14:34] Speaker 06:
Is mob action any different than unlawful action?

[01:14:36] Speaker 06:
I'm not even sure what you mean by mob.

[01:14:39] Speaker 06:
I've been here.

[01:14:42] Speaker 06:
a majority of the members of the House and the Senate who decided we're not showing up.

[01:14:49] Speaker 06:
There's not going to be a quorum, whatever is required for a quorum.

[01:14:52] Speaker 06:
I'm assuming majority, maybe it's even more than that.

[01:14:54] Speaker 06:
But there was a large number of senators and representatives grouped together and said, we are going to prevent this proceeding from going forward by denying it a quorum.

[01:15:09] Speaker 06:
And we're going to act in unison.

[01:15:13] Speaker 06:
Are they acting with a corrupt purpose?

[01:15:15] Speaker 02:
So just to finish the answer to Judge Pillard's question, I never really got to the punchline, which is that I expect that we would defend that if you had proper district court findings that you could infer corruption based on those facts.

[01:15:31] Speaker 02:
based on the mob action.

[01:15:33] Speaker 02:
I think in terms of legislators acting, there's a whole slew of additional kind of constitutional considerations that I'm frankly not prepared.

[01:15:43] Speaker 06:
Okay, so then what if I've got a bunch of citizens who are all calling their members of Congress and trying to influence them to boycott the electoral vote count en masse to deprive it of a quorum.

[01:16:00] Speaker 06:
Are they corruptly interfering with the proceeding or corruptly attempting to interfere with the proceeding?

[01:16:07] Speaker 03:
Let me just interject here an inconvenient matter.

[01:16:13] Speaker 03:
The legislative history is just critical here.

[01:16:17] Speaker 03:
And the Supreme Court has directed us to go back to look at what the founding fathers had in mind.

[01:16:25] Speaker 03:
And the fact that during our lifetime and our parents lifetime,

[01:16:33] Speaker 03:
the counting of the votes certified by the states in a presidential election has been a very formal non-controversial matter is not dispositive.

[01:16:51] Speaker 03:
So the premise of Judge Pillard's question, some of the assumptions under Judge Millett's questions, if

[01:17:01] Speaker 03:
we follow the Supreme Court's direction about what was the intention in setting up this process back in 1886, then that legislative record becomes relevant.

[01:17:18] Speaker 03:
And my only point is, I don't find any notion about disruption and breaking in and that sort of thing and seizing members of Congress.

[01:17:29] Speaker 03:
But I certainly do find evidence that it was not uncontemplated that in this quasi-judicial proceeding, members of Congress could ask questions, could seek evidence if they were concerned about the lawfulness of the certification of the votes from a state.

[01:17:58] Speaker 03:
If that is the correct reading, then the fact that citizens call their elected representatives and ask them to raise questions on the floor of the Senate at the time of certification, it seems to me that can't even be close to corrupt action, at least

[01:18:25] Speaker 03:
as this whole process was understood back in 1886.

[01:18:30] Speaker 02:
I think that seems correct, Judge Rogers, and I think that does bring us to the meaning of administration of justice, which relates to this, which is the quasi- Can I ask you a question?

[01:18:44] Speaker 02:
Sure.

[01:18:46] Speaker 06:
Not asking them to ask questions before a conference, but to boycott the proceeding, depriving it of a court.

[01:18:55] Speaker 02:
I have trouble imagining that as corruptly as I stand here trying to think through it.

[01:19:03] Speaker 03:
Well, the rules of the Senate allow the calling for a vote of the presence or absence of a quorum.

[01:19:14] Speaker 02:
Right.

[01:19:14] Speaker 02:
And so I think trying to do things within the legislative process.

[01:19:20] Speaker 06:
Interfere with the proceeding.

[01:19:22] Speaker 03:
And that's the very purpose of calling for a vote often, that a quorum is not present, and therefore the vote cannot go forward, and therefore a bill will not pass as it was contemplated.

[01:19:35] Speaker 03:
I mean, that's a very political process.

[01:19:39] Speaker 02:
Right.

[01:19:39] Speaker 02:
So I think if you're going through, as Judge Rogers is indicating, if you're going through the kind of legislative means

[01:19:47] Speaker 02:
that it's hard to get to corruption, to improper purpose, or especially to consciousness of wrongdoing.

[01:19:54] Speaker 02:
I do want to make sure I can address the administration.

[01:19:57] Speaker 04:
Sure.

[01:19:57] Speaker 04:
One question, testing the boundaries.

[01:19:59] Speaker 04:
You had emphasized the unlawful, the engaging in unlawful conduct.

[01:20:07] Speaker 04:
Yeah.

[01:20:09] Speaker 04:
Knowingly, I guess, acting in a way that the law defines as wrong, being

[01:20:16] Speaker 04:
part of corrupt purpose.

[01:20:18] Speaker 04:
We know that picketing in the Capitol is unlawful.

[01:20:21] Speaker 04:
If nobody else had shown up on January 6th but a lone picketer was inside the Capitol rotunda with a picketing sign, engaging in a misdemeanor,

[01:20:38] Speaker 04:
would that person be employing independently corrupt means and thereby have that misdemeanor supercharged under 1512C?

[01:20:47] Speaker 02:
So I think it probably, it's hard to get to charging that under 1512C too because it's hard to see the obstruction or the impeding there.

[01:20:59] Speaker 02:
Or influence?

[01:21:00] Speaker 02:
Well, or especially the intent to.

[01:21:04] Speaker 02:
the intent to do so I tend to influence.

[01:21:07] Speaker 04:
So I think there are through independently on lawful means.

[01:21:11] Speaker 02:
So I think there's a in the intent to influence the obstruction all of those there's

[01:21:20] Speaker 02:
not every kind of action is going to satisfy those, not every de minimis intrusion into the legislative process.

[01:21:28] Speaker 02:
And I'd say with the court's hypothetical, I don't think the definition of, I understand the court's discomfort, but I don't think the definition of corruptly is driving that.

[01:21:39] Speaker 02:
So if you take the Fisher concurrences formulation of what's corrupt, that there's a,

[01:21:47] Speaker 02:
interest in getting an unlawful benefit.

[01:21:49] Speaker 02:
If that protester is standing there because he thinks he's going to personally benefit or whatever, or somebody else is going to personally benefit from the electoral outcome, I think you'd have the same discomfort with saying that's obstruction under 1512 C2.

[01:22:06] Speaker 02:
So I don't think the discomfort is coming from the definition of corruption there.

[01:22:10] Speaker 02:
I think the discomfort is coming from whether or not it's actually obstruction or influencing or impeding under 1512 C2.

[01:22:18] Speaker 06:
Attempt counts as well.

[01:22:21] Speaker 06:
I do think this, I actually think, I beg to differ.

[01:22:25] Speaker 06:
I think at least what I'm wrestling with, I can't speak for the others, is what this corruptly word

[01:22:34] Speaker 06:
means and how it can be met and you know I'm not the first one to do this to struggle with what that word means under this and related statutes when as applied to congress in a way that marches by constitutional line and doesn't impede you know free speech or right to state and government for redress

[01:22:58] Speaker 06:
of grievances.

[01:23:01] Speaker 06:
So I'm not sure why.

[01:23:02] Speaker 06:
I mean, I get that the government would have a little incentive at that point, but the attempt would be really pretty pathetic to do it.

[01:23:11] Speaker 06:
But that's, I'm not sure where your definition of corruptly as a legal task, as a legal standard, you know, and whatever's happened in history, now we're talking about prosecuting people

[01:23:26] Speaker 06:
for violations of the criminal law for felonies.

[01:23:30] Speaker 06:
So it's why I'm at least struggling to discover, to make sure that we have a concrete understanding of what the abruptly standard is.

[01:23:39] Speaker 06:
And I'm not quite sure why that person's out other than any prosecutor who tried to bring it would probably get fired.

[01:23:46] Speaker 02:
I mean, I think it is, I think it is hard to imagine.

[01:23:50] Speaker 02:
One is that, obviously there have been lots of protester cases

[01:23:54] Speaker 02:
These have not been brought as 1512 C2 prosecutions and to.

[01:24:00] Speaker 02:
I mean, if nothing else, prosecutorial discretion.

[01:24:04] Speaker 02:
But there is an obstruct, influence, impede, even with the attempt liability.

[01:24:13] Speaker 02:
You still have to have a nexus to an official proceeding that's required by Aguilar and Arthur Anderson.

[01:24:19] Speaker 02:
And you still have to have not every kind of de minimis influence is going to qualify, not every de minimis

[01:24:29] Speaker 02:
minor interruption is going to qualify.

[01:24:31] Speaker 02:
You've got to have an actual intention.

[01:24:32] Speaker 06:
Is that in the definition of corrupt or is that simply because the constitution won't let it?

[01:24:35] Speaker 02:
That's obstruction.

[01:24:37] Speaker 02:
That's within the definition of obstruct, influence, impede.

[01:24:41] Speaker 02:
Influence?

[01:24:45] Speaker 02:
Be used, I'm generous.

[01:24:46] Speaker 02:
This is in the context of

[01:24:49] Speaker 02:
of congressional proceedings.

[01:24:52] Speaker 02:
I mean, this is far outside of kind of what's raised here, but yes, that not every kind of de minimis interruption of a congressional proceeding for three seconds is going to qualify.

[01:25:05] Speaker 02:
As to the administration of justice issue, so I think as we

[01:25:15] Speaker 02:
heard this morning, there is a definition of administration of justice that can focus on judicial proceedings.

[01:25:23] Speaker 02:
But we think the context of the sentencing guidelines in particular point to a different definition, which is that administration of justice is the companion of obstruction of justice.

[01:25:37] Speaker 02:
2J1.2 is the guideline for obstruction of justice.

[01:25:42] Speaker 02:
What you are doing when you are obstructing justice, you are interfering with the administration of justice.

[01:25:47] Speaker 02:
And that is how the guidelines use the term administration of justice.

[01:25:52] Speaker 02:
The larger term of part 2J of the guidelines is offenses involving the administration of justice.

[01:26:00] Speaker 02:
That's their umbrella term.

[01:26:03] Speaker 02:
And then once you get to the and then you've got various statutes, cross-reference that fall within 2J1.2.

[01:26:11] Speaker 02:
But OSHA investigations and federal audits and tax audits, these are all considered obstruction of justice for purposes of the guidelines being sentenced to 2J1.2.

[01:26:26] Speaker 04:
It's tough and not very intuitive language, I think, for either

[01:26:33] Speaker 04:
either of your positions.

[01:26:36] Speaker 04:
One of the things that strikes me about the examples that you give, although not themselves, traditional proceedings, is that they are naturally, at least a subset of those investigations, do lead to court action.

[01:26:50] Speaker 04:
So it's sort of like an early stage in something that could, part of the reason someone might want to impede or obstruct OSHA or IRS

[01:27:02] Speaker 04:
process is because they don't want to be end up in court.

[01:27:08] Speaker 04:
This doesn't seem quite like that.

[01:27:12] Speaker 02:
So I mean, I'd say two things.

[01:27:15] Speaker 02:
One is that I do think, especially based on the Electoral Count Act, the larger structure of the Electoral Count Act that Judge Rogers has been discussing this morning, it is a quasi adjudicative act very much that would fall if you're looking at quasi adjudicative acts as administration of justice.

[01:27:35] Speaker 02:
I do think

[01:27:36] Speaker 02:
Not everything Congress does, but this particular electoral satisfaction would satisfy that.

[01:27:42] Speaker 02:
But the second point is, in obstruction cases, you're normally required not just in 1503 obstruction, where you actually do have to have a judicial proceeding or a grand jury proceeding.

[01:27:55] Speaker 02:
you require a nexus to that proceeding.

[01:27:59] Speaker 02:
So the fact that conceivably way down the line it could lead to a court proceeding, that's not normally what we require in obstruction of justice.

[01:28:08] Speaker 02:
That's the Aguilar Supreme Court case that's saying, and Arthur Anderson emphasizes this as well.

[01:28:14] Speaker 02:
So I don't think those, you can just take those cases as

[01:28:19] Speaker 02:
you know, conceivably a tax audit, if things go really bad, that could lead to various, and I'm not sure that that's even true of most of federal audit of how the federal government's using its money.

[01:28:34] Speaker 04:
I mean, when you first think obstruction or interference with the administration of justice, you do think as Mr. Burnham, I think was saying of,

[01:28:44] Speaker 04:
a criminal court proceeding, not even maybe civil.

[01:28:48] Speaker 04:
But I guess one thought that I had, and maybe you can, you've thought about this a lot more, substantiate or steer me away from this, is that putting that administration of justice or, hmm.

[01:29:09] Speaker 04:
It's a little bit broader than that, that a judicial or related proceeding that determines rights or obligations that the writers of the guidelines don't want it to apply to obstructing any executive official or any court official in any activity.

[01:29:28] Speaker 04:
I mean, members of the public interact with administrative personnel in all kinds of ways.

[01:29:38] Speaker 04:
So I guess that there is an effort to make it apply to some subset of more structured processes and that, you know, that's a maybe a unintuitive but nonetheless adequate way of doing that.

[01:29:55] Speaker 02:
So, I mean, I think that our view is that administration of justice is not meant to be a limiting term.

[01:30:03] Speaker 02:
It's not meant to narrow the universe of when the enhancement applies.

[01:30:08] Speaker 02:
Instead, it's supposed to be the umbrella term for what happens when you are obstructing justice.

[01:30:13] Speaker 02:
And I think you can see that in the two enhancements.

[01:30:16] Speaker 02:
The enhancement is not for interference with the administration of justice.

[01:30:20] Speaker 02:
It's for either substantial interference or it's for

[01:30:24] Speaker 02:
assaulting someone, threatening someone, causing property damage in the administration of justice and impeding the administration.

[01:30:34] Speaker 06:
All the commentaries examples, all of them involve

[01:30:39] Speaker 06:
things that are either judicial proceedings or investigations that could lead to either administrative adjudications or court adjudications.

[01:30:49] Speaker 06:
And the only thing, the tail end thing or the unnecessary expenditure of substantial governmental or court resources.

[01:30:56] Speaker 06:
And your briefing relied a lot on the unnecessary expenditure of substantial governmental resources.

[01:31:05] Speaker 06:
That comes at the end of a list of things that are all adjudicatory or pre-adjudicatory in the investigative sense.

[01:31:14] Speaker 06:
So is it your position that if you can identify in any of these 15, 12 prosecutions, an unnecessary expenditure of substantial governmental resources, that's enough to apply this enhancement?

[01:31:33] Speaker 02:
So yes, yes, if you are causing that from your 1512 behavior, but in terms of, in terms of that, what prosecution under any of the statutes, there's not a lot of statutes to which this enhancement can apply.

[01:31:47] Speaker 06:
What prosecution under any of those statutes would not involve the unnecessary expenditure of substantial governmental resources.

[01:31:56] Speaker 02:
So we are not, we do not think that, maybe I misunderstood your prior question.

[01:32:01] Speaker 02:
We do not think that the costs of the prosecution are going to qualify as the substantial, the unnecessary expenditure of the government resources.

[01:32:11] Speaker 02:
So what we've been relying on is the damage to the capital in terms of those are the government resources we've been talking about.

[01:32:19] Speaker 02:
But you can look at the second circuit case in armor.

[01:32:24] Speaker 06:
Are they included too?

[01:32:25] Speaker 06:
investigating the crime.

[01:32:27] Speaker 02:
We have not.

[01:32:29] Speaker 02:
That is not what we rely on in this case may not have here.

[01:32:33] Speaker 06:
Is that what this language means?

[01:32:35] Speaker 06:
Because it is a necessary expenditure of substantial governmental resources.

[01:32:38] Speaker 06:
I just want to know what the government's position is, what that means, because that's a pretty sweeping language to trigger an enhancement based on specific offense characteristics.

[01:32:51] Speaker 02:
So I think the

[01:32:53] Speaker 02:
The view is that it's not the costs that are associated with investigating or prosecuting the crime.

[01:33:02] Speaker 02:
It's the costs that are caused by the interference with the administration.

[01:33:08] Speaker 06:
Mr. Brock here had a restitution order of, I think $2,000.

[01:33:12] Speaker 06:
Is $2,000 restitution order enough to be a necessary expenditure of substantial governmental resources?

[01:33:21] Speaker 02:
He's not challenging that on appeal.

[01:33:23] Speaker 06:
He's sure, sure.

[01:33:24] Speaker 06:
Enhancement.

[01:33:25] Speaker 06:
So that it was a $2,000, I guess, if he's held to be responsible for the capital damage.

[01:33:30] Speaker 06:
So specific offense characteristics, you can't go everybody caused a lot of damage.

[01:33:34] Speaker 02:
Right.

[01:33:34] Speaker 06:
You got to show that he caused a unnecessary expenditure of substantial governmental resources.

[01:33:39] Speaker 06:
So the $2,000 that he did is what you're relying on.

[01:33:44] Speaker 02:
So the $2,000 is how his part of the restitution has been separated out.

[01:33:51] Speaker 06:
That's the damage to the Capitol for which he is held responsible.

[01:33:56] Speaker 02:
Well, he's got collective responsibility for the damage to the Capitol.

[01:34:00] Speaker 06:
Specific offense characteristics.

[01:34:03] Speaker 02:
But it's a mob.

[01:34:04] Speaker 02:
I mean, when there's inserted action by a group of people and they all cause damage.

[01:34:14] Speaker 02:
It's not a conspiracy, but it is a mob.

[01:34:16] Speaker 06:
And so we are relying on the...

[01:34:26] Speaker 06:
people on lawn chairs sitting outside on the Capitol lawn watching what was going on.

[01:34:30] Speaker 02:
So I'm not talking about people who are on the grounds, but in terms of people who are in the building, who are occupying the building, who are meaning to be part of the mob.

[01:34:40] Speaker 02:
I mean, that's how mob option works is that it's a group of people who are joining together to to interrupt this.

[01:34:47] Speaker 06:
So yes, we are individual when they're individual protester by him or herself went in and knocked over

[01:34:56] Speaker 06:
knocked over something that was valued at $2,000.

[01:34:59] Speaker 06:
That would be enough to trigger this enhancement.

[01:35:05] Speaker 02:
Or no.

[01:35:06] Speaker 06:
We only have to rely on he's responsible for what everybody did.

[01:35:10] Speaker 02:
I think our position is that in this case, yes, that would be enough.

[01:35:16] Speaker 02:
But maybe I should walk that back.

[01:35:19] Speaker 02:
I haven't gone down that rabbit hole.

[01:35:22] Speaker 02:
He's not objecting.

[01:35:24] Speaker 06:
You certainly object to the application of this enhancement.

[01:35:27] Speaker 06:
Is there, and it could just be something I'm missing in guidelines or case law that allows these specific offense characteristics to be applied in this sort of what you call the collective action manner apart from conspiracies?

[01:35:45] Speaker 02:
Or is that the new?

[01:35:46] Speaker 02:
I mean, I just haven't gotten down that hole in the research.

[01:35:50] Speaker 02:
His challenge is a legal challenge.

[01:35:53] Speaker 02:
The challenge is to the meaning of administration of justice.

[01:35:57] Speaker 06:
I know, but I'm trying to get you back to the language here that you cited in your brief, substantial.

[01:36:01] Speaker 06:
And I just, of course, cited it to unnecessary expense of substantial governmental resources.

[01:36:06] Speaker 02:
Sure.

[01:36:06] Speaker 02:
So that is one of multiple contextual.

[01:36:09] Speaker 06:
And your view is that language means collect can be individual or collective.

[01:36:13] Speaker 02:
That's what you're arguing to me right now.

[01:36:15] Speaker 02:
I believe that is how it was applied in this case and he is not challenging that.

[01:36:22] Speaker 02:
The question of whether or not it's an unnecessary expenditure of substantial government resources is not what he's objecting.

[01:36:30] Speaker 02:
He's saying there's not an interference with administration of justice because as a matter of law, administration of justice.

[01:36:39] Speaker 06:
This is interpreting what administration, I don't know how you can say this isn't relevant.

[01:36:42] Speaker 06:
This is interpreting what administration of justice means.

[01:36:45] Speaker 06:
It is the key language, the only language in the commentary

[01:36:50] Speaker 06:
that the court and the government could hang their hat on for how this was administration of justice.

[01:36:56] Speaker 06:
And so this is completely fair game.

[01:37:02] Speaker 06:
I'm trying to understand if we agree with the government, what we're biting off, what we're signing off on.

[01:37:13] Speaker 06:
We just say $2,000?

[01:37:16] Speaker 02:
I do not think, I think.

[01:37:18] Speaker 06:
Either say $2,000 or we say collective action.

[01:37:21] Speaker 02:
My recollection of the Amherst Second Circuit case and the Ali Second Circuit, Seventh Circuit case is the amounts are kind of comparable in that neighborhood.

[01:37:33] Speaker 02:
But I haven't taken the close look at the collective action.

[01:37:38] Speaker 06:
Those were collective action cases.

[01:37:41] Speaker 02:
No, those are not collective action, right?

[01:37:44] Speaker 02:
And I'm not aware of collective action cases, but I haven't looked for collective action cases because we're focused on the meaning of administration of justice.

[01:37:53] Speaker 02:
And there are numerous contextual clues.

[01:37:56] Speaker 06:
Black's Law Dictionary defines administration of justice as, quote, the maintenance of right within a political community by means of the physical force of the state, or, quote, the state's application of the sanction of force to the rule of right, end quote.

[01:38:10] Speaker 06:
So you tell me how this meets that the administration, the maintenance of rights in a political community by means of the physical force of the state.

[01:38:19] Speaker 06:
How does that apply here?

[01:38:20] Speaker 06:
Or do you not agree with the black box?

[01:38:23] Speaker 06:
This you had different blacks law dictionary definitions, but this is actually of administration of justice.

[01:38:28] Speaker 02:
Sure, sure.

[01:38:29] Speaker 02:
Um, and, and I think that the, whether or not you are

[01:38:33] Speaker 02:
Retaining the presidency through the Electoral Count Act means specified by law does relate to the administration of right.

[01:38:44] Speaker 02:
Maintenance of right?

[01:38:45] Speaker 02:
The maintenance of right.

[01:38:49] Speaker 06:
Excuse me?

[01:38:50] Speaker 05:
Who's right?

[01:38:55] Speaker 06:
You said the maintenance of right.

[01:38:57] Speaker 02:
Sure.

[01:38:57] Speaker 06:
Is what the electoral count process does.

[01:39:02] Speaker 06:
by the metaphysical force of the state.

[01:39:05] Speaker 02:
Yes, in terms of who is retaining the presidency and how we are making our electoral decisions.

[01:39:13] Speaker 02:
But that's a hard definition to parse.

[01:39:18] Speaker 02:
And the contextual clues, and we certainly admit there are times when administration of justice is used in a narrower judicial sense, but there are strong contextual clues.

[01:39:30] Speaker 06:
or more commonly it's used in the narrow sense.

[01:39:34] Speaker 02:
Maybe somewhat more commonly, although I'm not sure the Seyfried, for example, the Seyfried decision, which does this corpus lingus, forgetting the term.

[01:39:43] Speaker 05:
All right, I'm missing what you're saying.

[01:39:45] Speaker 02:
Sure, sure.

[01:39:45] Speaker 02:
So Seyfried decision looks at how a random sample of administration of justice is used in certain cases.

[01:39:54] Speaker 02:
Find 65% relate to judicial proceedings,

[01:39:57] Speaker 02:
But then it also finds 25% relate to police.

[01:40:01] Speaker 02:
And there are other counties.

[01:40:03] Speaker 02:
Right.

[01:40:03] Speaker 02:
Right.

[01:40:03] Speaker 02:
Well, but I think once you are getting beyond, once you are getting beyond judicial proceedings.

[01:40:09] Speaker 06:
The commentary mentions investigations, felony investigations.

[01:40:13] Speaker 02:
So that's right there in the commentary too.

[01:40:15] Speaker 02:
Once you are getting beyond judicial proceedings, at that point, I don't think there's a definition of, at that point, you're not in Brock's world of the definition of administration of justice.

[01:40:26] Speaker 02:
At that point, you're in a larger definition.

[01:40:29] Speaker 02:
So if you look at the definition of obstruction of justice, interference with the administration of laws, law and justice, and contempt includes

[01:40:40] Speaker 02:
which includes contempt of Congress, Black says, is interference with the administration of justice.

[01:40:45] Speaker 02:
So it can support this broader reading.

[01:40:47] Speaker 02:
And we've cited the case law.

[01:40:49] Speaker 02:
And contextually, there are indications in the guidelines that it should bear that larger meaning.

[01:40:57] Speaker 02:
There are no other questions.

[01:40:58] Speaker 06:
Rogers, do you have any more questions?

[01:41:02] Speaker 06:
Thank you.

[01:41:02] Speaker 06:
We've kept you up a very long time.

[01:41:04] Speaker 06:
Thank you for your help.

[01:41:11] Speaker 05:
Mr. Burnham will give you three minutes.

[01:41:17] Speaker 00:
If I can, I have two, I think pretty quick technical points, and then I'll proceed to what remains.

[01:41:23] Speaker 05:
Can I answer to my question about the effect on a sentence?

[01:41:25] Speaker 00:
Nine months, that was the first one.

[01:41:27] Speaker 05:
I'm sorry, it would take.

[01:41:28] Speaker 00:
It added nine months to the low end and the high end of the guidelines that the enhancement.

[01:41:34] Speaker 05:
So the range without the enhancement would be?

[01:41:37] Speaker 00:
We'd be 15 months on the low end and 24 months on the low end.

[01:41:42] Speaker 00:
That's what he got.

[01:41:43] Speaker 00:
Thank you for that question.

[01:41:47] Speaker 00:
The second technical point is there was a

[01:41:50] Speaker 00:
there was a discussion at the beginning of counsel's argument is about exactly what we're adopting by relying on the Fisher concurrence and whether the comments there about benefits to candidate Trump somehow contradict the theory.

[01:42:03] Speaker 00:
And I think there's an answer to that.

[01:42:04] Speaker 00:
We just have to remember that the Fisher case was an interlocutory appeal.

[01:42:09] Speaker 00:
And what Judge Walker was saying there was maybe down the road, the government could put on a case that perhaps the unlawful benefit was or

[01:42:18] Speaker 00:
the President Trump to win.

[01:42:21] Speaker 00:
And so that was just sort of saying it was premature.

[01:42:23] Speaker 00:
That's why it was a concurrence and not a dissent.

[01:42:25] Speaker 00:
And so that doesn't contradict the abstract theory definition that we're urging upon for today.

[01:42:32] Speaker 00:
So that's the answer to that.

[01:42:32] Speaker 06:
I think he said if the government proved that benefit, then it would count.

[01:42:36] Speaker 00:
Sorry, I didn't hear your honor.

[01:42:37] Speaker 06:
I think his opinion said if the government proved that type of benefit, that would suffice as a relevant benefit for his definition of corrupt.

[01:42:45] Speaker 00:
If the government proved it, but that would require proof, I submit, that the actions of the defendant were to confer an unlawful benefit on President Trump himself as a person, not the country, not due process, not the Constitution.

[01:42:59] Speaker 00:
And it had to be intended to be unlawful.

[01:43:01] Speaker 00:
And so that would be a question for evidence at trial.

[01:43:04] Speaker 00:
And there's all sorts of ways that issue could go.

[01:43:06] Speaker 00:
And I think the concurrence understood that.

[01:43:08] Speaker 00:
It was an unusual way for the case to come up to the court.

[01:43:12] Speaker 00:
There's not a lot of motions to dismiss granted in the district court because it's so easy to meet that burden.

[01:43:16] Speaker 00:
I think that's why that was the way it was.

[01:43:20] Speaker 04:
Mr. Burnham, under North, we held that if the defendant uses improper means, even if he has a legitimate motive, uses improper means, we don't have to inquire

[01:43:37] Speaker 04:
into the motive.

[01:43:39] Speaker 04:
That's enough the knowledge that he's acting and in the way the law forbids and that the means he used were illegitimate, suffice.

[01:43:51] Speaker 04:
Why shouldn't we or don't we have to affirm on that ground here?

[01:43:55] Speaker 00:
Because that effectively swaps out the corrupt mens rea or whatever the mens rea is of the offense that

[01:44:07] Speaker 00:
that the government's relying on to prove corruptness.

[01:44:11] Speaker 00:
The argument is, if you're acting unlawfully, that's by definition corrupt.

[01:44:15] Speaker 00:
Unlawful can be any sort of criminal offense.

[01:44:18] Speaker 00:
It doesn't even have to be a criminal offense.

[01:44:19] Speaker 00:
It could be a civil unlawful action, which might be a negligence standard.

[01:44:23] Speaker 00:
So the effect of looking at it that way, and I hope this answers the court's question, is to basically swap out

[01:44:29] Speaker 00:
Corruptness, which is a relatively high criminal mens rea and substitute it with whatever happens to be the mens rea for whatever the government.

[01:44:38] Speaker 04:
How do you distinguish North?

[01:44:41] Speaker 00:
Well, North is the North is a little unclear on that point.

[01:44:44] Speaker 00:
North says improper purpose.

[01:44:47] Speaker 00:
could be sufficient, but part of the problem we have here is these adjectives sort of get switched in and out by different judges.

[01:44:54] Speaker 00:
Judge Bates at one point referred to malign.

[01:44:57] Speaker 00:
Improper shows up in North.

[01:44:59] Speaker 00:
Wrongful is also the term you hear.

[01:45:03] Speaker 00:
The government struggled to define that.

[01:45:05] Speaker 00:
And effectively, we're at North in this collection of cases that the district courts have been relying on, effectively create a situation where the eruptive standards tailored

[01:45:16] Speaker 00:
to fit whatever facts of the case happened to be.

[01:45:19] Speaker 00:
And the result is you have a substantial prison sentence being handed down and a shifting definition of corruptly with a statute that without a firm definition of corruptly, many judges have agreed they're highly problematic.

[01:45:33] Speaker 00:
So that's my answer to that.

[01:45:37] Speaker 00:
I think importantly.

[01:45:38] Speaker 04:
As I read, Norah says, we don't have to give the additional jury instruction on his

[01:45:46] Speaker 04:
state of mind because it's sufficient that he chose, as the court put it, the dubious course when he could have chosen a legitimate course to accomplish his objective and therefore corruptly is met because he used independently unlawful means when he obstructed.

[01:46:12] Speaker 00:
Well, the first answer is that's a different standard than what government is arguing.

[01:46:18] Speaker 00:
Even the government's not arguing that standard.

[01:46:20] Speaker 00:
They agree that the wrongfulness and the unlawful means or purpose are two separate.

[01:46:24] Speaker 04:
We need to apply our precedent.

[01:46:27] Speaker 04:
And I guess what's the...

[01:46:28] Speaker 04:
objection that you would have assumed that they did argue that, just to put aside the question about preservation.

[01:46:35] Speaker 04:
There's a lot of those questions, but under the law and our interpretation of the law, we have precedent that said for a purpose or corrupt means, and one understanding, the most clearly established stable understanding of corrupt means is means that are

[01:46:57] Speaker 04:
independently on law fall.

[01:46:59] Speaker 04:
And if that occurred here, and those aren't even on appeal, what more is needed?

[01:47:09] Speaker 04:
And what's the objection to relying on that?

[01:47:11] Speaker 00:
I think it's been established that the North case is most ambiguous enough.

[01:47:16] Speaker 00:
And there's a possibility it could be regarded as addictive that even the Fisher panel or the government didn't regard themselves as bound by that specific formulation of the test.

[01:47:26] Speaker 00:
So I think it's, in effect, the law of this court based on the Fisher decision that the intent of 1512 is an open question for this circuit, notwithstanding

[01:47:36] Speaker 04:
Well, in a case where that's what the proof is focusing on, but in a case where, I mean, the majority of the court in North, and if an individual chooses the illegal or dubious course, no further showing of corrupt motive is required beyond the intent to commit the obstructive acts.

[01:47:55] Speaker 00:
Well, I think what the task for the court is, as I said before, to clarify once and for all exactly what this shifting collection of, Your Honor mentioned, dubious, align as in other decisions, improper, wrongful.

[01:48:06] Speaker 00:
Every case has a slightly different formulation of it.

[01:48:09] Speaker 00:
And I think the January 6th era, the pressing task for this court is to clarify what these shifting definitions mean in a way that can reconcile the extent to which North is binding on the court.

[01:48:26] Speaker 00:
Another point I want to answer that answered your honor's question is there's there's an I don't want to miss important statement that my brother council made.

[01:48:34] Speaker 00:
With the.

[01:48:35] Speaker 00:
Protester hypothetically going back to several times.

[01:48:39] Speaker 00:
The answer to one of the court's questions was that if let's say a lunch counter protester.

[01:48:44] Speaker 00:
Genuinely believe that the Constitution.

[01:48:48] Speaker 00:
Justified their actions because whatever statute.

[01:48:51] Speaker 00:
Local ordinance that said only certain people can eat at this lunch counter was unconstitutional.

[01:48:56] Speaker 00:
their contact might be illegal, but it wouldn't be wrongful for the 15, 12 cents.

[01:49:02] Speaker 00:
And that's important because although counsel for the government denied it in response to questions, there is evidence in this case that Mr. Brock was acting pursuant to his understanding of what the constitution required.

[01:49:14] Speaker 06:
Sure, but he didn't think the electoral vote, the electoral count act or the process itself was unconstitutional.

[01:49:20] Speaker 01:
Oh, we did.

[01:49:20] Speaker 06:
No, no, he thought actually the evidence coming in was fraudulent.

[01:49:26] Speaker 06:
But he didn't think the legal process being employed, the legal rules, the statute being applied was unconstitutional.

[01:49:35] Speaker 06:
He just had a factual dispute about the evidence before Congress.

[01:49:40] Speaker 00:
Well, we don't have a legal.

[01:49:42] Speaker 06:
He wanted to go through electoral count, correct?

[01:49:44] Speaker 06:
He just wanted different votes to be counted.

[01:49:46] Speaker 00:
The crucial point, I think, is his statements.

[01:49:50] Speaker 06:
I'm correct, right?

[01:49:51] Speaker 06:
He doesn't think the Electoral Count Act.

[01:49:53] Speaker 06:
There's no evidence in the record that he thought the Electoral

[01:49:55] Speaker 06:
count at the statute itself was unconstitutional.

[01:49:58] Speaker 00:
It's unclear.

[01:49:59] Speaker 00:
The record sites say things like the statute was on.

[01:50:01] Speaker 06:
Where does this say he thought that statute was unconstitutional?

[01:50:04] Speaker 00:
It's unclear, Your Honor.

[01:50:05] Speaker 06:
In the record, they're unclear or it doesn't show it at all.

[01:50:08] Speaker 00:
It's unclear for Mr. Brock's statements exactly what he's referring to.

[01:50:11] Speaker 00:
There are statements that we have to defend the Constitution.

[01:50:13] Speaker 00:
The communists are taking over the Constitution.

[01:50:16] Speaker 00:
And there's not, he doesn't go on to say, because the Electoral Count Act is unconstitutional, or the way the election was conducted is unconstitutional, or something else.

[01:50:23] Speaker 03:
Neither would... Probably that's not specific enough to raise an objection.

[01:50:29] Speaker 00:
Well, it's not really an objection, but it's more an analysis.

[01:50:31] Speaker 03:
Well, what is it then?

[01:50:34] Speaker 00:
I think it's the exact same issue that would be presented in the civil rights protestor... That's right, and that's the question, that's what the question is getting to.

[01:50:43] Speaker 00:
That's right.

[01:50:43] Speaker 00:
And so they wouldn't have a specific articulation of their constitutional theory.

[01:50:47] Speaker 00:
The courts wouldn't require that of a civil rights protest or any more than I think they'd require it of a January six protest or the question all comes back.

[01:50:55] Speaker 03:
The analogy would be that the earlier meeting on January six defined what their definition was.

[01:51:05] Speaker 03:
That is where the president himself, President Trump was present.

[01:51:11] Speaker 03:
But, you know, we don't need to get there.

[01:51:13] Speaker 03:
here.

[01:51:15] Speaker 03:
That's all I'm getting at, because the government has limited the scope of its charges against your client.

[01:51:26] Speaker 03:
It has.

[01:51:27] Speaker 03:
So they may be, but nevertheless.

[01:51:32] Speaker 06:
Well, we're on plain error review.

[01:51:34] Speaker 06:
Isn't that the more important barrier to your argument?

[01:51:37] Speaker 00:
Yes.

[01:51:38] Speaker 06:
Your Honor, I- Are you challenged to the definition of corruptly?

[01:51:41] Speaker 00:
Our initial contention is that it's not plain error.

[01:51:45] Speaker 00:
We deny that it is.

[01:51:45] Speaker 06:
You admitted, you sit right there and admitted this, just what you were arguing here for was not argued below.

[01:51:51] Speaker 06:
So your subject, is there an exception to plain error that you think applies?

[01:51:55] Speaker 00:
We didn't argue in our brief plain error because this is an open question.

[01:51:58] Speaker 00:
Honestly, just be candid with the court.

[01:52:01] Speaker 00:
I don't think this qualifies for plain error.

[01:52:04] Speaker 00:
I'm sorry.

[01:52:05] Speaker 00:
Why?

[01:52:06] Speaker 00:
Because we admit it's an open question.

[01:52:07] Speaker 00:
There's not a binding.

[01:52:12] Speaker 06:
You know, is it already answered by the law or not?

[01:52:18] Speaker 06:
If it's not already answered by the law, it's an open question.

[01:52:21] Speaker 06:
You lose on plain error.

[01:52:23] Speaker 01:
I understand that, Your Honor.

[01:52:27] Speaker 06:
Thank you, Your Honor.

[01:52:28] Speaker 06:
Thank you very much.

[01:52:29] Speaker 06:
Thank you for your time.

[01:52:31] Speaker 05:
The case is submitted.