Episode 2
Oral Argument: Fischer v. United States | Case No. 23-5572 | Date Argued: March 25, 2024
Case Info: Fischer v. United States | Case No. 23-5572 | Date Argued: March 25, 2024 | Date Decided: 6/28/24
Link to Docket: Here.
Question Presented: Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering"). Which prohibits obstruction of congressional inquiries and investigations to include acts unrelated to investigations and evidence?
Holding: To prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.
Result: Vacated and remanded.
Voting Breakdown: 6-3. Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, Kavanaugh and Jackson joined. Justice Jackson filed a concurring opinion. Justice Barrett filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Link to Opinion: Here.
Oral Advocates:
- For Petitioner: Jeffrey T. Green, Bethesda, Md.
- For Respondent: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D.C.
Timestamps:
[00:00:00] Introduction
[00:00:07] Petitioner Opening Statement Begins
[00:01:52] Petitioner Free for All Questions Begin
[00:25:37] Petitioner Sequential Questions Begin
[00:34:25] Petitioner Questions End, Respondent Opening Statement Begins
[00:36:31] Respondent Free for All Questions Begin
[01:05:01] Respondent Sequential Questions Begin
[01:36:13] Respondent Sequential Questions End, Petitioner Rebuttal Begins
Transcript
[00:00:06] CHIEF JUSTICE ROBERTS: Mr. Green.
[:[00:00:10] MR. GREEN: Congress enacted 1512[c] in 2002 in the wake of the large-scale destruction of Enron's financial documents. The statute therefore prohibits the impairment of the integrity or availability of --of information and evidence to be used in a proceeding. In 2002, Congress hedged a little bit and added Section [c][2] to cover other forms of impairment, the known unknowns, so to speak. It was, after all, the dawn of the Information Age.
[:[00:01:07] MR. GREEN: The government would have you ignore all that or disregard all that and instead convert [c][2] from a catchall provision into a dragnet. One of the things that that dragnet would cover is Section [c][1]. Our construction of the statute at least leaves [c][1] and [c][2] to do some independent work.
[:[00:01:49] MR. GREEN: I welcome the Court's questions.
[:[00:01:52] JUSTICE THOMAS: Mr. Green, how do we determine what these two provisions have in common? Do we look after the [00:02:00] "otherwise" or before and why?
[:[00:02:32] MR. GREEN: So we look back and we look forward.
[:[00:02:50] JUSTICE THOMAS: No, because in --in - [c][2] speaks to the effect of the actions that the "otherwise" clause covers. So, in other words, we look [00:03:00] at [c][1] and we see that Congress is concerned about documents and records and other objects and things that are done to those to impair the integrity of those, and the effect of that is to obstruct. And so [c][2] omits that object and verb section.
[:[00:03:35] MR. GREEN: Well, because of the --of the --the presence of the "otherwise" provision. So "otherwise," as I mentioned --and --and "otherwise," this Court has said, means to do similar conduct in a different way. So what we've got here is --is the impairment of evidence being done in a different way.
[:[00:04:12] JUSTICE SOTOMAYOR: If you start yelling, I think no one would question that you can be expected to be kicked out under this policy, even though yelling has nothing to do with photograph or recording. The object that the verb is looking at, the verbs are looking at, is the obstruction. It's not the manner in which you obstruct; it's the fact that you've obstructed.
[:[00:04:41] MR. GREEN: It is, Your Honor. It - it's --it's in part the structure of the provision. But what --what your hypothetical omits is that there is a specific retriculation, I guess it's called, of all of the different sorts of things that might be done to evidence to begin with.
[:[00:04:59] JUSTICE SOTOMAYOR: There's a long -
[:[00:05:34] JUSTICE SOTOMAYOR: Well, I would respectfully disagree because, I mean, both -
[:[00:05:38] MR. GREEN: Yeah.
[:[00:05:58] JUSTICE SOTOMAYOR: On [2], you need an actual [00:06:00] proceeding to impair.
[:
[00:06:22] MR. GREEN: No, I do think, under [1], you don't need an actual impairment. Under [2], you do.
[:[00:06:29] JUSTICE SOTOMAYOR: If you read it -
[:[00:06:31] JUSTICE SOTOMAYOR: --the --the verb requires you to actually obstruct the proceeding in [2]. Nowhere in [1] do you actually have to obstruct.
[:[00:06:46] JUSTICE SOTOMAYOR: No, otherwise obstructs or impedes or attempts to, yes.
[:[00:06:50] JUSTICE BARRETT: Counsel, can I ask you whether --let's --let's imagine that we agree with you. On remand, do you agree that the government could take a shot at proving that your client [00:07:00] actually did try to interfere with or, under [c][1] --or, actually, no --sorry - under [c][2], obstruct evidence because he was trying to obstruct the arrival of the certificates arriving to the vice president's desk for counting? So there would be an evidence impairment theory?
[:[00:07:37] MR. GREEN: Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document or creating a fake new document.
[:[00:08:12] MR. GREEN: Well, again, I think they could try it, but I --I don't think that we're talking about trying to impair just anything other than the evidence itself. We're trying to obstruct a proceeding, and there's questions about what "proceeding" means here, as Your Honor doubtless knows.
[:[00:08:39] JUSTICE BARRETT: Well, no, no, no, no. [c][2] --I mean, as I --maybe I'm misunderstanding your argument, but I thought your argument was that [c][2] picks up other things, but they just have to be evidence-related.
[:[00:09:08] MR. GREEN: I --I still --that's closer. It's definitely closer. But, if you zoom out and look at all of 1512 in order to understand what kinds of impairment we're talking about, we are talking about or Congress is prohibiting the kinds of impairments that actually change documents that actually affect their integrity.
[:[00:09:42] JUSTICE JACKSON: But --but, Mr. - Mr. Green, if --if --if Justice Barrett is wrong, then what work is [c][2] doing? I mean, it seems like you've just now re-articulated only the theory of [c][1] and you're saying that you have to make it into [c][1] in order to be --you know, to have this [00:10:00] statute apply.
[:[00:10:07] MR. GREEN: Let's --let's look at the verbs of [c][1], which are "alter," "destroy," "mutilate," and "conceal," and let's think about their antonyms. So one instead of "destroy" would be actually to create. So one could use some sophisticated computer program, we've heard an awful lot about AI, and we've heard about the possibility of deepfake photographs.
[:[00:10:45] JUSTICE JACKSON: So you're saying there are other things other than particularly altering, destroying, mutilating, or concealing, but it has to be limited to a record?
[:[00:11:20] JUSTICE JACKSON: All right. Can I just ask you one other question just so that I can fully understand your theory? You keep using the term "evidence," and that does not appear in the statute. The statute, [c][1] says "record, document, or other object."
[:[00:11:43] MR. GREEN: Well, the --the --the title of the statute refers to tampering with witnesses, victims, and informants. But along with wictims --excuse me, witnesses, victims, and informants comes evidence that they provide, whether in the form of testimony or whether in the form of documents.
[:[00:12:14] JUSTICE JACKSON: So is it your --is it your argument that the only thing that this provision covers is something that is tantamount to evidence in an investigation or trial?
[:[00:12:41] JUSTICE JACKSON: And it need not be --as --as --as 1512[f] provides, it need --it need not be admissible to you, [f] --yeah, [f], it need not be admissible. So it --it could cover things like electronic records. It could cover communications. It could [00:13:00] cover emails. It could cover all kinds of things that we think get used by fact finders in a formally convened hearing.
[:[00:13:10] JUSTICE ALITO: What about -
[:[00:13:13] JUSTICE ALITO: Just a quick question. What about the Second Circuit's decision in U.S. versus Reich, where what was involved was not evidence, it was a forged court order. Would that fall within [c][2]?
[:[00:13:44] JUSTICE ALITO: All right. Thank you.
[:[00:13:45] JUSTICE KAGAN: Just to take you back to the --the question that Justice Thomas started you with, I mean, there, it seems to me there are two choices here, and you could read this as "otherwise obstructs a proceeding" or "otherwise spoils evidence."
[:[00:14:29] JUSTICE KAGAN: I mean, there are ways in which [c][2] --multiple ways in which the drafters of [c][2] could have made it clear that they intended [c][2] to also operate only in the sphere of evidence spoliation. But it doesn't do that. All it says is "otherwise obstructs, influences, or impedes."
[:[00:14:56] JUSTICE KAGAN: Well, it's not a question of precisely. The question is what is this "otherwise" --this is [00:15:00] what Justice Thomas said at the beginning --what is this "otherwise" taking from [c][1]? Of course, there's commonality that's involved in an "otherwise." There's both commonality and difference.
[:[00:15:35] MR. GREEN: But this Court has said that "otherwise" in a criminal statute means similar conduct, so we -
[:[00:15:51] JUSTICE KAGAN: The statute tells you what the similar conduct is right on its face.
[:[00:16:08] MR. GREEN: And so a drafter of this statute could easily omit something like that and would omit something like that for the sake of economy and also to hedge because we know that what comes before might not be exactly the same as after, so we're not going to repeat what we said there, but we're going to use a connector like "otherwise" to --to demonstrate that we're talking about similar conduct.
[:[00:16:42] JUSTICE KAGAN: What's your best case for this, like, going backward and trying to find language that does not appear in the "otherwise" provision and trying to incorporate it into the "otherwise" provision?
[:[00:16:56] JUSTICE KAGAN: And that's not -
[:[00:16:57] JUSTICE KAGAN: --a very good advertisement, I would think. I mean, [00:17:00] what Begay does is exactly that. So you have a very good case there. And it was a complete failure.
[:[00:17:27] JUSTICE KAGAN: So that's not a great advertisement for rewriting a statute to --to --you know, to take an "otherwise" provision that says what it says and turn it into an "otherwise" provision that says something else.
[:[00:17:53] MR. GREEN: And when that began to play out in complicated cases like Chambers and many others involving escape [00:18:00] from a halfway house, it became a --an --the Court said, an untenable proposition to figure out what a potential harm to another person might be looking at what came before. That doesn't -
[:[00:18:16] MR. GREEN: That doesn't -
[:[00:18:20] MR. GREEN: Yeah, but that doesn't - that doesn't mean that the Court's holding about how to construe a statute and its significant holding about "otherwise" was abrogated in and of itself as a result of the cases that came after Begay.
[:[00:18:41] MR. GREEN: But I --I think there --there's a point in the colloquy that you've been having. The specific types of conduct that are enumerated in [1], alter, destroy, mutilate, conceal a record, document, et cetera, et cetera, have two things in common. One, [00:19:00] they all involve documents or objects, and they also all involve the impairment of the object's integrity or availability for use in an official proceeding.
[:[00:19:39] MR. GREEN: But it is also possible to read a clause like this more narrowly, and Judge Katsas provided an example of that in his opinion. If you have a statute that says anyone who kills or injures or assaults someone or otherwise causes serious injury, [00:20:00] commits a crime, you wouldn't think that that applies to defamation.
[:[00:20:13] MR. GREEN: Certainly. And I --I would submit, Your Honor, that there are plenty of other reasons why our reading is the better reason. And I'm not going to contest or bite off more than I can chew and say that the government's reading of [c][2] is implausible.
[:[00:20:47] MR. GREEN: And I would submit, Your Honor, too that as the briefing indicates, ejusdem generis and --and noscitur a sociis, those two venerated Latin canons, [00:21:00] also operate in our favor here, as well as the broader context of Chapter 73 and --and --and Section 15. All of these things are about doing things that --that --that obstruct a proceeding. And 1512 and 1512[c] zero in on witnesses and evidence.
[:[00:21:34] MR. GREEN: Right. So, with respect to surplusage, Your Honor, I would refer to Judge Katsas's opinion, as you did, in particular in the Joint Appendix at page 88, which lists out all of the different provisions in Section 1512. Fifteen of the 21 would be subsumed by the government's reading of [c][2].
[:[00:22:18] JUSTICE KAGAN: Well, Mr. Green, I think that this -
[:[00:22:20] JUSTICE KAGAN: --this --this - there's a good case that this provision - everybody knew it was going to be superfluous because it was a provision that was meant to function as a backstop. It was a later-enacted provision. Congress had all these statutes all over the place. It had just gone through Enron.
[:[00:22:53] JUSTICE KAGAN: But they didn't know exactly what those gaps were. So they said, let's have a backstop provision. And this [00:23:00] is their backstop provision. And, of course, in that circumstance --I mean, superfluity is very often a good argument when it comes to statutory interpretation, but it's not a good argument when Congress is specifically devising a backstop provision to fill gaps that might exist --they don't exactly know how they exist, but they think that they probably do exist --in a preexisting statutory scheme. And that's what this provision is intended to do.
[:[00:23:51] JUSTICE SOTOMAYOR: Counsel, I --I have such a hard time with the superfluidity argument because this entire obstruction [00:24:00] section is superfluidity. There isn't one provision you can point to --you just said it, you can point to 1512 and you have 1519, which says destruction of evidence. How are they different? They're really not. You can point to any series --any provision and point to superfluidity in this --in this --in this section, 1512 and otherwise.
[:[00:24:47] MR. GREEN: Well, it's an awfully odd place to put it, isn't it, I mean, in a subsection of a subsection in the middle back of the statute, to --to include a provision -
[:[00:24:57] MR. GREEN: --that seemingly -
[:[00:24:59] MR. GREEN: --takes over [00:25:00] 15 of the 21 other provisions.
[:[00:25:11] MR. GREEN: Well, I think you can reconcile --I mean, again, that's what the Court said about 1519 in --in Yates. And I don't understand how it is that the government can come before you today and say we need yet another catchall, yet another omnibus crime that will sweep in all kinds of others. We didn't get what we wanted in Section 15, so now we'll go to 1512[c][2] and see if we can expand that in this way to cover something that it has never covered before.
[:[00:25:37] MR. GREEN: And -
[:[00:25:38] CHIEF JUSTICE ROBERTS: Justice Thomas?
[:[00:25:41] CHIEF JUSTICE ROBERTS: Justice Sotomayor?
[:[00:25:57] MR. GREEN: MR. GREEN: Well, I'm --I'm not sure that that's true. I'd point to the [00:26:00] Hatfield Courthouse problems in --in --in --in --in Portland, Oregon. But let's --let's also look at what the Court has said in so many different cases, in --in Dubin, in Bond, in Yates, in Kelly. All of these cases -
[:[00:26:32] MR. GREEN: But the government has no way to address its problem with breadth because
[:[00:26:37] MR. GREEN: Okay.
[:[00:26:42] CHIEF JUSTICE ROBERTS: Justice Gorsuch?
[:[00:26:43] JUSTICE KAVANAUGH: If it were just the language in [c][2] and so said "whoever corruptly obstructs, influences, or impedes," [c][2], without the word "otherwise," if that were the whole provision, do you acknowledge that the language would then be [00:27:00] applied properly to a situation like this?
[:[00:27:27] MR. GREEN: I think also, as I mentioned, the Latin canons, the surplusage problem that [c][2] would create, all of those would still obtain if it sat there by itself without the "otherwise." The "otherwise" is the icing on the cake.
[:[00:27:46] JUSTICE KAVANAUGH: Well, let me just --if you didn't have [c][1], you just had [c][2] without the "otherwise." I'm not sure I was clear on that.
[:[00:28:22] MR. GREEN: Thank you.
[:[00:28:26] JUSTICE BARRETT: Yeah, I have a question about the phrase in [c][1], the specific intent. Do you agree it's specific intent with the intent to impair the object's integrity? Okay.
[:[00:28:44] MR. GREEN: The corruptly intent requirement?
[:[00:28:53] JUSTICE BARRETT: Yes, we do, Your Honor.
[:[00:28:55] MR. GREEN: And we'd say that's the object of --of --of the overarching mens rea.
[:[00:29:19] MR. GREEN: Well, I think that's right. I mean, it's --it's awkward. I mean, there's no doubt that it's an awkward statute, but, if you --if you do the operation that I talked about earlier, which is we're just going to use "otherwise" to replace the verbs and the nouns in [c][1], then --then the statute makes perfect sense.
[:[00:30:01] JUSTICE BARRETT: So "corruptly" is redundant?
[:[00:30:06] JUSTICE BARRETT: Okay. Thank you.
[:[00:30:13] JUSTICE BARRETT: Thank you.
[:[00:30:15] JUSTICE JACKSON: So I'm just still wondering if your theory about this provision might be too narrow in a sense because you've got evidence going and spoliation in a sense.
[:[00:30:50] JUSTICE JACKSON: It's not just evidence. It's an official proceeding. [c][1] is an example of, you know, the [00:31:00] corrupt tampering with certain things. And [c][2] broadens it out a bit. It's not just documents and records.
[:[00:31:10] MR. GREEN: Well, I think --I think that's --that's a correct reading, Your Honor. I mean, we're --is --as --as 1512[f] demonstrates, it doesn't --you know, 1512[f] we would submit actually supports our position because it says the evidence need not be admissible or free of a privilege claim.
[:[00:31:39] JUSTICE JACKSON: In a non-evidentiary way?
[:[00:31:47] MR. GREEN: All right. Let me
[:[00:31:49] JUSTICE JACKSON: --let me ask you about the question that Justice Barrett asked before.
[:[00:32:06] JUSTICE JACKSON: Justice Alito says, well, one of the commonalities between [c][1] and [c][2] could be the impairment of the object's integrity or availability.
[:[00:32:32] JUSTICE JACKSON: So this is --this is, you know, preventing Congress from counting the electoral votes, for example. Let's say it's being done. She says it's in an envelope going to the --the vice president's desk and someone does something to impair or prevent that from happening. Why isn't that what [c][2] could cover?
[:[00:32:56] JUSTICE JACKSON: Availability is also in the statute.
[:[00:33:05] JUSTICE JACKSON: No, not delay. Let's say the person steals the envelope and takes it away.
[:[00:33:20] JUSTICE JACKSON: Well, we --we wouldn't have to decide that.
[:[00:33:22] JUSTICE JACKSON: We could send it back if we clarified that that is what the statute means. I'm trying to understand if you agree that that's what the statute could mean.
[:[00:33:31] JUSTICE JACKSON: Why not?
[:[00:33:47] JUSTICE JACKSON: So as to limit its availability. So what -
[:[00:33:50] JUSTICE JACKSON: --I'm suggesting is, in [c][2], if you're doing something to limit its --to --to limit its availability, why doesn't it count?
[:[00:34:11] JUSTICE JACKSON: 1512 is talking about evidence that's going to a formal convocation, some kind of a hearing, before the Congress or before any other body -
[:[00:34:23] MR. GREEN: --as the language says. Thank you.
[:[00:34:25] CHIEF JUSTICE ROBERTS: Thank you, counsel.
[:[00:34:28] CHIEF JUSTICE ROBERTS: General Prelogar.
[:[00:34:32] CHIEF JUSTICE ROBERTS: On January 6th, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power. Many crimes occurred that day, but in plain English, the fundamental wrong committed by many of the rioters, including Petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress's work in that official proceeding.
[:[00:35:06] CHIEF JUSTICE ROBERTS: The case as it comes to this Court presents a straightforward question of statutory interpretation: Did Petitioner obstruct, influence, or impede the joint session of Congress?
[:[00:35:21] CHIEF JUSTICE ROBERTS: The terms of the statute unambiguously encompass his conduct. Petitioner doesn't really argue that his actions fall outside the plain meaning of what it is to obstruct. Instead, he asks this Court to impose an --atextual limit on the actus reus. In his view, because Section 1512[c][1] covers tampering with documents and other physical evidence, the separate prohibition in Section 1512[c][2] should be limited to acts of evidence impairment.
[:[00:36:22] CHIEF JUSTICE ROBERTS: Section 1512[c][2] by its terms is not limited to evidence impairment. Instead, it's a classic catchall. [c][1] covers specified acts that obstruct an official proceeding, and [c][2] covers all other acts that obstruct an official proceeding in a different manner. The Court should say so and allow this case to proceed to trial.
[:[00:36:31] Respondent Free for All Questions Begin
[:[00:36:31] GENERAL PRELOGAR: It has certainly been the --the government's position since the enactment of 1512[c][2] that it covers the myriad forms of obstructing an official proceeding and that [00:37:00] it's not limited to some kind of evidence impairment gloss. With -
[:[00:37:19] GENERAL PRELOGAR: We have enforced it in a variety of prosecutions that don't focus on evidence tampering.
[:[00:37:42] GENERAL PRELOGAR: But just to give you a flavor of some of the other circumstances where we have prosecuted under this provision, for example, there are situations where we've brought [c][2] charges because someone tipped off the subject of an investigation to the grand jury's hearings. There was another case where someone tipped off about the identity of an undercover law enforcement [00:38:00] officer.
[:[00:38:09] JUSTICE THOMAS: So -
[:[00:38:21] JUSTICE THOMAS: So what role does [c][1] play in your analysis?
[:[00:38:45] GENERAL PRELOGAR: So there's no duplication or superfluity on our reading. Instead, Congress was taking this universe and dividing it up into the two separate offenses.
[:[00:39:06] JUSTICE THOMAS: JUSTICE THOMAS: Well, I mean, in the way you're reading it, [c][1] --[c][2] almost exists in isolation, certainly not affected by [c][1].
[:[00:39:22] JUSTICE THOMAS: what is that relationship?
[:[00:39:45] GENERAL PRELOGAR: And I think that this has to be the road the Court goes down to look at what Congress actually prescribed with respect to similarity because, in contrast, if you take up Petitioner's invitation to come up with some atextual gloss from [c][1] to port over into [c][2], [00:40:00] I don't understand what the Court could look at to guide its determination of exactly what the relevant similarity would be.
[:[00:40:14] CHIEF JUSTICE ROBERTS: [Laughter.]
[:[00:40:32] CHIEF JUSTICE ROBERTS: The "otherwise" phrase is more general, and the terms that precede it are "alters, destroys, mutilates, or conceals a record [and] document."
[:[00:41:03] GENERAL PRELOGAR: So, Mr. Chief Justice, I think that the statute -
[:[00:41:08] GENERAL PRELOGAR: oh, yes.
[:[00:41:22] GENERAL PRELOGAR: So I think the problem with that approach with respect to 1512 is that it doesn't look like the typical kind of statutory phrase that consists of a parallel list of nouns or a parallel --list of verbs where the Court has applied ejusdem generis or the noscitur canon.
[:[00:42:03] CHIEF JUSTICE ROBERTS: Competing interpretations of what, which phrase?
[:[00:42:21] GENERAL PRELOGAR: Meanwhile, Judge Katsas looked at the specific intent requirement in [c][1], to take action that impairs the availability or use of the evidence, and he divined a broader gloss to put on [c][2] and said -
[:[00:42:32] GENERAL PRELOGAR: --it should be other impairment of all other evidence.
[:[00:42:48] CHIEF JUSTICE ROBERTS: And you --and you apply both of those in --as it said in Bissonnette, controlling and defining the term that follows so that it should involve something that's capable of alteration, destruction, and mutilation [00:43:00] and --and with respect to a record or a document. That - that's how you --that's why -
[:[00:43:05] CHIEF JUSTICE ROBERTS: --when you - when you apply that doctrine, again, as we did on Friday, it --it responds to some of the concerns that have been raised about how broad [c][2] is. You can't just tack it on and say look at it as if it's standing alone because it's not.
[:[00:43:37] GENERAL PRELOGAR: Judge Nichols had a more limited view that it --that [c][2] exclusively focuses on physical objects. It wouldn't apply to things like testimony because of the limitation that he gleaned from [c][1]. Judge Katsas, I think, maybe in line with your question, would interpret it more broadly.
[:[00:44:04] JUSTICE GORSUCH: General -
[:[00:44:04] JUSTICE GORSUCH: --if that's --if that's --if that's the case, what work does "otherwise" do on your theory? Because I think I --I might, as I'm hearing you, think that "whoever [...] corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so" stands alone. And the "otherwise" - I'm not hearing what work it does. Can you explain to me what work it does on your view?
[:[00:44:38] GENERAL PRELOGAR: Now I acknowledge that there would have been -
[:[00:44:53] GENERAL PRELOGAR: Yes, but there was a good reason for Congress to do it this way.
[:[00:44:58] GENERAL PRELOGAR: it traces to the statutory history.
[:[00:44:59] JUSTICE GORSUCH: And I would just say [00:45:00] that -
[:[00:45:28] JUSTICE GORSUCH: There are multiple elements of the statute that I think might not be satisfied by those hypotheticals, and it relates to the point I was going to make to the Chief Justice about the breadth of this statute.
[:[00:45:59] JUSTICE GORSUCH: Okay. So --so -
[:[00:46:00] JUSTICE GORSUCH: --my --my outbursts require the Court to --to --to --to reconvene after --after the --the proceeding has been brought back into line, or the --the pulling of the fire alarm, the vote has to be rescheduled, or the --the --the protest outside of a courthouse makes it inaccessible for a period of time.
[:[00:46:28] GENERAL PRELOGAR: So, with some of them, it would be necessary to show nexus. So, with respect to the protest -
[:[00:46:32] GENERAL PRELOGAR: --outside the courthouse -
[:[00:46:33] GENERAL PRELOGAR: --we'd have to show that, yes, they were aiming at a proceeding.
[:[00:46:37] JUSTICE GORSUCH: Yes. And then we'd also have to be able to prove that they acted corruptly, and this sets a stringent mens rea. It's not even just the mere intent to obstruct. We have to show that also, but we have to show that they had corrupt intent in acting in that way, and particularly -
[:[00:46:51] GENERAL PRELOGAR: I --I know. I - I --I heard the argument yesterday, but I guess what I would say is, to the extent that your hypotheticals are pressing on the idea of a peaceful [00:47:00] protest, even one that's quite disruptive, it's not clear to me that the government would be able to show that each -
[:[00:47:06] GENERAL PRELOGAR: --of those protestors had corrupt intent.
[:[00:47:14] GENERAL PRELOGAR: Not necessarily. We would just have to have the evidence of intent, and that's a high bar we argue.
[:[00:47:19] GENERAL PRELOGAR: Right.
[:[00:47:20] GENERAL PRELOGAR: Yes. If they intend to obstruct and we're able to show that they knew that was wrongful conduct with consciousness of wrongdoing, then, yes, that's a 1512[c][2] offense and then we would charge that.
[:[00:47:31] GENERAL PRELOGAR: So "corruptly" adds the requirement that the defendant's conduct be wrongful and committed with consciousness of wrongdoing. And this traces to the Court's decision in Arthur Andersen, where the Court said this is a term with deep historical roots, with a settled meaning, and that it connotes not just knowledge of your actions, which is, you know, the intent to obstruct in this case, but further requires that it be done corruptly.
[:[00:48:17] GENERAL PRELOGAR: So I think that that is an encapsulation of what the jury is asked to decide on top of the mere intent to obstruct.
[:[00:48:33] JUSTICE ALITO: So we've had a number of protests in the courtroom. Let's say that today, while you're arguing or Mr. Green is arguing, five people get up, one after the other, and they shout either "Keep the January 6th insurrectionists in jail" or "Free the January 6th patriots." And as a result of this, our police officers have to remove them forcibly from the [00:49:00] courtroom and let's say we have to - it delays the proceeding for five minutes.
[:[00:49:17] JUSTICE ALITO: So would that be a violation of 1512[c][2]?
[:[00:49:24] JUSTICE ALITO: Why?
[:[00:49:35] JUSTICE ALITO: Well, it doesn't say I --I'm sorry. It --[c][2] does not refer just to obstruct. It says "obstructs, influences, or impedes." Impedes is something less than obstructs.
[:[00:49:53] JUSTICE ALITO: Well, okay. But the --the plain meaning -
[:[00:49:55] JUSTICE ALITO: You're --you're preaching the plain meaning interpretation of [00:50:00] this provision. The --the plain meaning of "impede" in Webster's is "to interfere with" or get in the way of the progress of, to hold up. In the OED, it is "to retard in progress or action by putting obstacles in the way."
[:[00:50:25] GENERAL PRELOGAR: And if this Court
[:[00:50:49] GENERAL PRELOGAR: We read the actus reus more narrowly. Now perhaps you could look at some of the broader dictionary definitions and adopt a broader understanding of the actus reus. Still, there would be the backstop of needing to prove corrupt [00:51:00] intent. I think that's a stringent mens rea, and in the concept of -
[:[00:51:09] GENERAL PRELOGAR: I could imagine defendants in that scenario suggesting that they thought they had some protected free speech right to protest. They might say that they weren't conscious of the fact that they weren't allowed to make that kind of brief protest in the Court.
[:[00:51:32] JUSTICE ALITO: Well --yes indeed, absolutely. What happened on January 6th was very, very serious, and I'm not equating this with that. But we need to find out what --what are the outer reaches of this statute under your interpretation.
[:[00:52:08] GENERAL PRELOGAR: It sounds to me like that wouldn't satisfy the proceeding element, nor the nexus requirement -
[:[00:52:13] GENERAL PRELOGAR: --and nexus -
[:[00:52:17] GENERAL PRELOGAR: Well, if we had clear -
[:[00:52:19] GENERAL PRELOGAR: --if we had clear evidence that the purpose of the protestors who had set up the blockage somewhere, some distance away from the Court was because they had a specific proceeding in mind, maybe you have the proceeding.
[:[00:52:45] GENERAL PRELOGAR: But, Justice Alito, the other thing I would say to this set of concerns is that there are other obstruction provisions, including in 1503, 1505, the tax obstruction statute, 7212, that use this exact same formulation that the Court has characterized as an omnibus clause [00:53:00] and never suggested could be subject to an evidence gloss.
[:[00:53:10] JUSTICE JACKSON: But -
[:[00:53:12] JUSTICE ALITO: Well, let -
[:[00:53:12] GENERAL PRELOGAR: --isn't going to cure that issue.
[:[00:53:15] CHIEF JUSTICE ROBERTS: Go ahead.
[:[00:53:37] JUSTICE ALITO: And in a particular case, the judge imposes Article --Rule 11 sanctions and says, this caused a lot of trouble. I can tell you it --it --it caused at least five work days with --for me personally, all of this unnecessary paper, and it delayed the progress of this litigation, so I'm imposing Rule [00:54:00] 11 sanctions.
[:[00:54:04] GENERAL PRELOGAR: Congress created a specific safe harbor in 1515[c]. It's reprinted at page 17A to the appendix of our brief that specifies that advocacy or legal representation that is conducted as part of a proceeding shouldn't be understood as obstruction.
[:[00:54:27] JUSTICE ALITO: It falls within --but it falls -
[:[00:54:27] JUSTICE ALITO: --within the language, doesn't it?
[:[00:54:28] JUSTICE KAGAN: What --what kind of evidence do you typically present in these January 6th cases to prove the "corruptly" element?
[:[00:54:49] GENERAL PRELOGAR: And then, with respect to using unlawful means with consciousness of wrongdoing, we have focused on things like the defendant's threats of violence, willingness to use violence here. We allege that Petitioner [00:55:00] assaulted a police officer. We have focused on things like preparation for violence, bringing tactical gear or paramilitary equipment to the Capitol.
[:[00:55:12] GENERAL PRELOGAR: U.S. Attorney's Office. We've charged over 1,350 defendants with crimes committed on January 6th, but we've only had the --only had the evidence of intent to bring charges against 350 for a 1512[c][2] violation.
[:[00:55:33] JUSTICE KAGAN: The dividing line has hinged usually on the evidence we have of intent. So we're looking for clear evidence the --defendant knew about the proceedings that were happening in the joint session in Congress that day, clear knowledge of the official proceeding.
[:[00:55:54] JUSTICE KAGAN: And then also, as I had mentioned, the --the knowledge of wrongfulness or unlawful conduct can come about with [00:56:00] respect to particular preparations that the defendants have made.
[:[00:56:18] JUSTICE KAGAN: So even in situations where we think we have amassed the evidence, we still haven't always been able to sustain these convictions, and it's because of the stringent mens rea.
[:[00:56:40] JUSTICE JACKSON: [1] and [2] is the official proceeding and the obstruction of --of --of an official proceeding.
[:[00:57:13] GENERAL PRELOGAR: So, to the extent you're pressing on the idea that there's surplusage, I --I don't think that that's true. There is certainly overlap or duplication. That's true on both of the readings in this case.
[:[00:57:38] GENERAL PRELOGAR: But, with respect to superfluity, our interpretation doesn't create any technical superfluity, and that's because each of those other provisions that you cited and --and, in fact, each of the other provisions of the obstruction laws cover situations that 1512[c][2] wouldn't cover.
[:[00:58:07] GENERAL PRELOGAR: The second thing is that some of the provisions sweep more broadly than an official proceeding. They apply in a wider range of circumstances. So that would enable us to charge in those situations where we can't actually prove the official proceeding element.
[:[00:58:33] GENERAL PRELOGAR: All right. Well, let me -
[:[00:58:34] GENERAL PRELOGAR: So there's no actual superfluity.
[:[00:59:09] JUSTICE JACKSON: I --I explored with Mr. Green, and - and as did Justice Barrett, the idea that to the extent that there were people who knew that the votes were being counted that day and that's done in a, you know, documentary way in our system, their interfering by storming the Capitol might qualify under even an evidence or document interpretation of [c][2].
[:[00:59:37] GENERAL PRELOGAR: Yes, I think that if the Court articulated the standard that way, these would likely be viable charges. And as we note in the last footnote of our brief, we - we've preserved an argument that we could satisfy even an evidence-related understanding of [c][2], in part because the very point of the conduct, when we have the intent evidence, was to prevent Congress from being able to count the votes, from being able to actually certify the results of the election. [01:00:00]
[:[01:00:13] GENERAL PRELOGAR: Here, the --the point of it would be that the --those who came to the Capitol and engaged in this criminal conduct to displace Congress violently from --from where it had to be to count those votes acted with an intent to impair Congress's ability to consider that evidence.
[:[01:00:40] JUSTICE SOTOMAYOR: Could you do it if we accepted the district court's view? I --I presume that you could do it if we accepted the dissent below, correct?
[:[01:00:51] JUSTICE SOTOMAYOR: Yeah. But your whole response to Justice Ketanji --to Justice Jackson --sorry --to Justice [01:01:00] Jackson is that it --it assumes the dissent's view?
[:[01:01:19] JUSTICE SOTOMAYOR: Okay.
[:[01:01:35] JUSTICE SOTOMAYOR: JUSTICE SOTOMAYOR: You read our discussion on "corruptly" yesterday. It's clear. You've endorsed the Robertson view.
[:[01:01:53] GENERAL PRELOGAR: yes. So Judge Walker articulated an idea that "corruptly" has to turn exclusively on the government being able [01:02:00] to show that the defendant sought to secure an unlawful advantage for himself or someone else.
[:[01:02:19] GENERAL PRELOGAR: But I think that it would be incorrect for the Court to suggest that that's the exclusive mechanism for the government to try to prove "corruptly." You know, there are various other ways where we might have evidence of, as we think we do here, unlawful means, committed with consciousness of wrongdoing, and there's no basis in the common law or in how the term "corruptly" has long been understood to limit the government's ability to prove it only with that one specific way that Judge Walker pointed to.
[:[01:03:12] JUSTICE SOTOMAYOR: But neither of those two issues were resolved below because that wasn't the question below, correct?
[:[01:03:23] JUSTICE SOTOMAYOR: And the only issue between us is whether we read the words --how we read these words?
[:[01:03:50] GENERAL PRELOGAR: It has to have that tight connection, the relationship in time, causation, or logic, with the official proceeding. And, of course, "corruptly," we think, sets a very high bar, as evidenced by the fact as, as I said to [01:04:00] Justice Kagan, it's not like we can even prove it with respect to everyone who was in the riot at the Capitol on January 6th.
[:[01:04:07] JUSTICE BARRETT: General, are you putting a violence requirement as an overlay on "obstruct, influence, impede"? And I'm --I'm thinking of some of your answers to Justice Alito's hypotheticals. It seemed like you kept emphasizing the aspect of violence that was present on January 6th. So am --am I understanding you to say there has to be some sort of violence or no?
[:[01:04:41] GENERAL PRELOGAR: What I was trying to say to Justice Alito is, in situations where hypotheticals press on the idea that people are engaging in conduct that maybe they think is constitutionally protected, they might be wrong about that, there might not be a First Amendment right that they think they have, but that can demonstrate that they don't have the requisite consciousness of wrongdoing. That would mean we couldn't prove an obstruction [01:05:00] charge.
[:[01:05:01] CHIEF JUSTICE ROBERTS: Thank you, counsel.
[:[01:05:16] CHIEF JUSTICE ROBERTS: We have charged [c][2] in situations that don't involve evidence impairment, and the litigating position of the Department has long been that, as its plain language suggests, it covers myriad ways of obstructing. I'm not aware of any other factual circumstance or event out in the world where we could have proved all of the elements of Section 1512[c][2] beyond the cases where we've brought those prosecutions. So -
[:[01:05:40] GENERAL PRELOGAR: They're limited to a requirement that the specific people had in mind an official proceeding. So that would take out the category of hypotheticals -
[:[01:05:47] GENERAL PRELOGAR: --where, you know, maybe you're protesting a branch of government, you're outside this Court, but you don't have this specific argument in mind.
[:[01:06:01] GENERAL PRELOGAR: And you've - you've done that -
[:[01:06:03] CHIEF JUSTICE ROBERTS: Yeah, yeah. Excuse me.
[:[01:06:04] CHIEF JUSTICE ROBERTS: In prior cases, you have applied [c][2] in a situation, what, not involving specific documents?
[:[01:06:25] CHIEF JUSTICE ROBERTS: And --and your friend's point --your friend points to an Office of Legal Counsel opinion from 2019 that --I haven't looked at it yet, but I will - that says it is consistent with Judge Katsas's opinion below. You -
[:[01:06:54] CHIEF JUSTICE ROBERTS: I don't think that it would be right to suggest that the memo took any firm stand, although it did suggest that maybe [01:07:00] 1512[c][2] should be understood more narrowly, but it didn't --it certainly didn't represent any formal adoption of that position, and that would have been inconsistent with how the government has always litigated under [c][2].
[:[01:07:14] GENERAL PRELOGAR: I should probably know the answer to that one as a matter of -
[:[01:07:17] GENERAL PRELOGAR: --of DOJ policy, but what --what I can tell you is the reason I'm saying that wasn't an official position is because it specifically said there's no need to go down the road of even deciding exactly what 1512[c][2] covers because, even assuming that it covers the full range of obstructive conduct, the allegations, according to the memo, didn't satisfy the standard there. So it ultimately just punted on the issue and said it's not necessary to engage with that issue further.
[:[01:07:42] CHIEF JUSTICE ROBERTS: Justice Thomas?
[:[01:07:53] GENERAL PRELOGAR: That's right. We've applied it in cases that do not fit the evidence impairment model that Petitioner is urging on the Court here. And [01:08:00] it's not just [c][2], Justice Thomas, but it's the omnibus clauses of 1503, 1505, 7212. You know, these are statutes that use the exact same verb phrase, and we've -
[:[01:08:10] GENERAL PRELOGAR: Yes.
[:[01:08:26] JUSTICE THOMAS: We think that it covers the full range of obstructive conduct that's not covered by [c][1], of course, limited by the requirement of an official proceeding.
[:[01:08:44] GENERAL PRELOGAR: Yes. And the uniform consensus among the court of appeals has been that [c][2] is not limited by this kind of evidence impairment gloss that Petitioner is asking the Court to read into the statute.
[:[01:09:03] JUSTICE THOMAS: So much of your argument seems to hinge on this being fairly clear, the --the --your interpretation of [c][2].
[:[01:09:16] JUSTICE THOMAS: Okay. If we think - if --if --if --if I happen to think it's more ambiguous, what would your argument be?
[:[01:09:47] GENERAL PRELOGAR: It's not like it just thought of for the first time this verb phrase "obstructs, influences, or impedes." That wasn't taken out of the ether. That was a well-established term, verb phrase, in obstruction law drawn from those other statutes.
[:[01:10:13] GENERAL PRELOGAR: That's also consistent with all precedent, as I mentioned to you earlier, so I think, when you put it all together, there's no real ambiguity here. We --we clearly have the best reading.
[:[01:10:25] JUSTICE THOMAS: Yeah.
[:[01:10:38] GENERAL PRELOGAR: It would not have used this oblique reference of "otherwise" and then used a term that had a well-settled meaning in obstruction law to sweep more broadly to try to convey that type of limited scope. It would just be nonsensical for Congress to draft that way because it would be so readily misunderstood. And, in fact, every lower court has understood Congress to have legislated more broadly here.
[:[01:11:06] GENERAL PRELOGAR: Well, no, I --I think, actually, that the statutory context and history does bear weight here, and we think that the roots of this language in those other obstruction provisions help fortify or reinforce how the Court has always understood the plain language.
[:[01:11:23] JUSTICE ALITO: You argue that there's a --an exception for conduct that has only a minimal effect on official proceedings. Where does that come from in the text?
[:[01:11:52] JUSTICE ALITO: There can't be a minor impediment?
[:[01:12:14] JUSTICE ALITO: Well, it didn't stop with "obstruct." It --it added "impede."
[:[01:12:35] JUSTICE ALITO: How do you define it?
[:[01:12:50] GENERAL PRELOGAR: And I recognize that maybe there could be gray areas about the nature of the obstruction and whether it really satisfies the actus reus. I think that is properly a subject for the jury.
[:[01:13:04] GENERAL PRELOGAR: I think that sounds minimal to me. I mean, it sounds to me like, if it hasn't actually forced any substantial halt to these proceedings, it seems like that wouldn't pick up and track. But, you know, this --the same issue would arise under 1503, which likewise refers to "obstruct, influence, or impede."
[:[01:13:26] JUSTICE ALITO: Suppose someone commits conduct that falls squarely within 1512[d], the person intentionally harasses another person and therefore dissuades that person from attending or testifying in an official proceeding. So you've got a square --you know, a clear violation of 1512[d] punishable by no more than three years in prison.
[:[01:14:05] JUSTICE ALITO: There's a key difference between 1512[d] and 1512[c] in that
[:[01:14:18] JUSTICE ALITO: But the government has not read that statute to require an actual intent to obstruct, which I think means there are certain factual scenarios where the government might be able to prove a 1512[d] offense without satisfying [c][2]. But I do want to be responsive to the broader concern that there's something anomalous about the 20-year penalty here.
[:[01:14:48] JUSTICE ALITO: And the concern you have with the hypothetical arises equally on Petitioner's reading because so too everything that would be covered in 1512[d] falls within his evidence impairment limitation. So I don't think the existence of a statutory [01:15:00] max when there's no mandatory minimum should drive intuitions about how to interpret this provision.
[:[01:15:09] JUSTICE ALITO: How about 1512[b], which also has a 20-year penalty, but it seems to be completely subsumed by [c][2].
[:[01:15:32] GENERAL PRELOGAR: What I would say is there's no actual superfluity because there are ways of violating
[:[01:15:46] JUSTICE ALITO: Really? You think you could knowingly threaten or corruptly persuade --corruptly mislead someone? I --I don't understand that argument.
[:[01:16:06] GENERAL PRELOGAR: But another way you can violate [b] is through intentionally misleading someone. That wouldn't necessarily require corrupt intent.
[:[01:16:16] CHIEF JUSTICE ROBERTS: Justice Sotomayor?
[:[01:16:18] JUSTICE ALITO: Sorry.
[:[01:16:49] JUSTICE ALITO: And you said no, it doesn't have to be significant because, "The text likewise admits of no distinction between discrimination that results in a significant or [01:17:00] insignificant disadvantage."
[:[01:17:15] GENERAL PRELOGAR: No, that is not our argument here. We are grounding this in the text. So we're not suggesting that there's a basic de minimis principle that applies throughout all the various legal statutes that are out there, not anything like that.
[:[01:17:33] GENERAL PRELOGAR: Thank you.
[:[01:17:36] JUSTICE SOTOMAYOR: I know the Reich case because I decided it. However, the tip cases, are they in your briefs?
[:[01:17:58] GENERAL PRELOGAR: And there are a number of cases [01:18:00] in that line, including --I don't think we specifically cited --but it includes the disclosing of the identity of an undercover officer.
[:[01:18:07] GENERAL PRELOGAR: We would be happy to supply additional citations if you're looking for them. I believe that the D.C. Circuit decision as well cited a range of [c][2] cases and made clear that they didn't cover evidence impairment.
[:[01:18:19] CHIEF JUSTICE ROBERTS: Justice Kagan?
[:[01:18:34] JUSTICE KAGAN: And the other question I have is just you've referred a number of times to other omnibus provisions, 1503, 1505 --what's the tax one? Seventy?
[:[01:18:46] JUSTICE KAGAN: If --if we go down Mr. Green's road in terms of importing other limits from other places in the statute, are any of those likely to be challenged in [01:19:00] the same kind of way, or are they written sufficiently differently so that we wouldn't have to worry about that?
[:[01:19:09] GENERAL PRELOGAR: With respect to Petitioner's reliance on 1519 as the catchall here, I understood the Court's decision in Yates to say precisely the opposite. In fact, Yates drew a direct comparison between 1519 on the one hand, which it said was a more narrow obstruction provision based on some of the contextual clues there, and 1512[c][1] on the other hand, which has the phrase "record, document, or other object," and said, well, that's the broad obstruction provision. That's the one that's intended to be codified in this broader prohibition that's aimed at official proceedings, and that [c][1] language is actually quite broader and would scoop up the entire world of physical objects, in contrast to the narrowing interpretation the Court accepted in Yates.
[:[01:20:21] GENERAL PRELOGAR: With respect to the question --I'm sorry. Now I'm forgetting the second question. Oh, about the other statutes and whether they would be endangered. I would be concerned about that. I'm sure defendants would try to make arguments. The language, the verb phrase is exactly the same or in different order sometimes, but it's "obstructs, influences, or impedes," and so the relevant verbs in the actus reus would be similar. There are different direct objects there. For example, in 1503, it's the due administration of justice. In 1505, it's the administration of the power of Congress's inquiry and investigation.
[:[01:21:11] GENERAL PRELOGAR: Thank you.
[:[01:21:13] CHIEF JUSTICE ROBERTS: Justice Kavanaugh?
[:[01:21:47] GENERAL PRELOGAR: No, we don't think it can sensibly apply here. So the Court has said many times that "otherwise" is a natural way for Congress to create a broad catchall category. And I certainly don't dispute that there can be situations [01:22:00] where you have a parallel list of nouns or a parallel list of verbs where the Court might further think that ejusdem generis principles apply.
[:[01:22:26] GENERAL PRELOGAR: So I think that this just isn't the kind of situation where the Court could sensibly apply ejusdem generis.
[:[01:22:44] GENERAL PRELOGAR: Well, that --that --that's -
[:[01:22:47] JUSTICE KAVANAUGH: As you know, that's true in almost every ejusdem generis case, and the --and the treatise explains that as well, which is it's hard sometimes to figure out what the common link among the words in the --in the phrase is. So that's --I [01:23:00] don't think that distinguish --that point I don't think distinguishes this case from other ejusdem generis cases. But you can respond to that.
[:[01:23:24] GENERAL PRELOGAR: And, you know, I --I recognize that Petitioner has invoked Begay. Your question touched on it. But the statute in Begay, which we think is not the model of --of statutory interpretation to follow here, the statute itself was --was relevantly different. It had a list of nouns, and so it was the kind of statute where potentially ejusdem generis could apply.
[:[01:23:58] GENERAL PRELOGAR: I don't think that the placement in the [01:24:00] statute is odd at all for a couple of different reasons. One is the point I was trying to make to Justice Kagan about this Court's own recognition that 1512 is one of the big obstruction statutes. This is the statute that is aimed generally at official proceedings. It's not more discrete. And there are other provisions like 1519 and some of the ones that come right before it that are more narrowly confined and are in --intended to reflect discrete circumstances. That doesn't describe 1512 at all. So, when Congress was trying to broadly prohibit obstruction of official proceedings, 1512 was exactly the right place to go.
[:[01:24:58] JUSTICE KAVANAUGH: Last question. There are [01:25:00] six other counts in the indictment here, which include civil disorder, physical contact with the --the victim, assault, entering and remaining in a restricted building, disorderly and disruptive conduct, disorderly conduct in the Capitol building. And why aren't those six counts good enough just from the Justice Department's perspective given that they don't have any of the hurdles?
[:[01:25:48] GENERAL PRELOGAR: But one of the distinct strands of harm, one of the --the --the root problems with Petitioner's conduct is that he knew about that proceeding, he had said in advance of January 6th that he was prepared to storm the [01:26:00] Capitol, prepared to use violence, he wanted to intimidate Congress. He said they can't vote if they can't breathe. And then he went to the Capitol on January 6th with that intent in mind and took action, including assaulting a law enforcement officer.
[:[01:26:25] JUSTICE KAVANAUGH: And are the sentences --the sentence available is longer for this count than for any of the other counts or all of them together?
[:[01:26:48] JUSTICE KAVANAUGH: And just to give you a sense for a typical January 6th defendant, someone who doesn't have a prior criminal history and who committed violent conduct at the Capitol, accepting responsibility, I think the average guidelines range or --or [01:27:00] the range that would yield is 10 to 16 months of imprisonment. For someone who didn't commit violence, it would be six to 12 months of imprisonment.
[:[01:27:26] JUSTICE KAVANAUGH: So there's --there's no reasonable argument to be made that the statutory maximum here is driving anything with respect to sentencing.
[:[01:27:35] CHIEF JUSTICE ROBERTS: Justice Barrett?
[:[01:27:47] JUSTICE BARRETT: So, as you pointed out to Justice Kavanaugh just now, you know, [c][1] has this additional mens rea requirement. But, you know, there is overlap. If you read "otherwise obstructs, influences," et cetera, broadly, it would [01:28:00] encompass --you know, frankly, even on the other reading, it would encompass things like "alters, destroys, mutilates," et cetera.
[:[01:28:23] GENERAL PRELOGAR: That's correct. We usually charge the specific paragraph and so, if the conduct fits within [c][1], we would charge it under [c][1], and that would be the proper place to locate the charge.
[:[01:28:42] GENERAL PRELOGAR: Well, let me say that there is a specific intent requirement under [c][2]. So there's no distinction between them in that regard.
[:[01:28:48] GENERAL PRELOGAR: It's the intent to obstruct the official proceeding. So you're right that we wouldn't have to prove intent to, you know, mutilate a document or something, but we --we would still have to show the intent to obstruct the proceeding.
[:[01:29:17] GENERAL PRELOGAR: And if we charged under the wrong paragraph accidentally, I think we could usually say that that was harmless error or else recharge under the correct paragraph.
[:[01:29:30] GENERAL PRELOGAR: So what if on January 6th the Capitol itself had not been breached, the protest is going on outside the Capitol, "Stop the Steal, Stop the Steal," police are, you know, in megaphones saying, "Disperse, disperse," they're too close to the Capitol, their goal is to impair, impede, stop the proceeding, stop the counting of votes.
[:[01:29:58] GENERAL PRELOGAR: So I think [01:30:00] --I think that one relevant question would be whether we could satisfy the nexus requirement and show that actually the natural and probable effect of that conduct would be to have some effect on what's going on in the Capitol, and in the mine run -
[:[01:30:12] GENERAL PRELOGAR: Yes. So if you're assuming that the same thing happened where Congress had to go into recess and couldn't hold the joint session after all -
[:[01:30:17] GENERAL PRELOGAR: --because there was such a security risk? I think that that probably would be chargeable if we had the intent evidence.
[:[01:30:30] GENERAL PRELOGAR: But, if we had, for example, organizers where it was absolutely clear that they were the ring leaders who had intended to obstruct and undertook the action with that specific intent and did so knowing it was wrongful, and especially if they went --you know, I'm assuming you're saying they're in the unauthorized area right outside the Capitol.
[:[01:30:46] GENERAL PRELOGAR: That is unlawful conduct committed with consciousness of wrongdoing if we have the proof of it.
[:[01:31:01] JUSTICE BARRETT: Tell me why I shouldn't be concerned about the breadth of the government's reading just relying on "corruptly" and the nexus requirement. Should I be concerned or --or could you just embrace it and say, yeah, there might be some as-applied First Amendment challenges or that sort of thing?
[:[01:31:19] GENERAL PRELOGAR: Yes, you can be. You certainly don't have to agree with us that a de minimis hindrance wouldn't qualify. If you thought that this was unqualified and swept broadly to any kind of hindrance whatsoever, there would still be really important limits in the statute. Obviously, you'd have to have the official proceeding.
[:[01:31:43] GENERAL PRELOGAR: You'd have to show that the defendant knew that the natural and probable effect would do that. You'd still have to show the corruptly mens rea. And as you mentioned, even if you could show all of that, if it were a circumstance that really did infringe on First Amendment rights, there would always be the backstop of an as-applied constitutional challenge.
[:[01:32:07] GENERAL PRELOGAR: Yeah.
[:[01:32:14] JUSTICE BARRETT: Let's say I think that that's covered by the word "impedes" and let's --there's the nexus, then it's corruptly. Is it plausible to think Congress wrote a statute that would sweep that in?
[:[01:32:45] GENERAL PRELOGAR: And, again, the 20-year statutory max, of course, is just a max. There's no mandatory minimum. So Congress would have recognized that sentencing courts would use their discretion to tailor the actual sentence to the facts of the that specific offense.
[:[01:32:58] CHIEF JUSTICE ROBERTS: Justice Jackson?
[:[01:33:15] JUSTICE JACKSON: It was in the wake of Enron, there was document destruction, and, you know, there was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally. They had this particular problem and it was destruction of information that would have --could have otherwise been used in an official proceeding.
[:[01:33:53] GENERAL PRELOGAR: Sure. And, you know, I'd start by saying that we, of course, acknowledge that the immediate impetus for adding 1512 to the statute [01:34:00] was to close the Enron loophole. It was a --a glaring loophole in the coverage of the obstruction laws that it wasn't a crime for you personally to destroy the document and the government had to charge people for instead persuading other people to destroy documents.
[:[01:34:20] GENERAL PRELOGAR: But I think the best way to look at what Congress was doing in light of that context is to consider the fact that Congress went further and enacted [c][2]. The broader lesson Congress took away from Enron is that when you set out in advance to try to enumerate all the various ways that official proceedings can be obstructed, things will slip through the cracks. You can't always foresee it.
[:[01:34:41] GENERAL PRELOGAR: Yes, it was.
[:[01:34:51] JUSTICE JACKSON: So one is documents, records, and other objects. But the known/unknown, we don't know, you know, could it be intangible, for [01:35:00] example, that [c][2] is sort of getting at when one gets at physical objects?
[:[01:35:15] GENERAL PRELOGAR: So I --I think the reason why we wouldn't suggest that the context could bear that narrower reading is because of the actual language that Congress used. If it was really just worried about other kinds of record-based, proceeding-based, evidence-based ways of obstructing, then there were easy templates to add that in as a residual clause to [c][1]. There was no need to have this entirely separately numbered prohibition. And especially there was no need to use the well-recognized verb phrase "obstructs, influences, or impedes," which was clearly drawn from these other - omnibus clauses that sweep more broadly.
[:[01:36:11] GENERAL PRELOGAR: of the statute say.
[:[01:36:13] CHIEF JUSTICE ROBERTS: CHIEF JUSTICE ROBERTS: Thank you, counsel.
[:[01:36:16] MR. GREEN: Justice Sotomayor, a defendant who tips off a grand jury witness or tips off the targets of a search warrant is someone who is certainly attempting to impair the integrity or the availability of evidence and would be covered by [c][2] just as somebody who creates a document and then that document is shown to counsel and counsel withdraws a mandamus petition has, in fact, created something that has caused an interference with an official proceeding.
[:[01:37:13] MR. GREEN: As the nexus, let's look at what 1512[f] says. "For the purposes of this section, an official proceeding need not be pending or about to be instituted at the time of the offense." There is no nexus. Congress has written it out of the statute right there.
[:[01:37:51] MR. GREEN: With respect to the corruptly mens rea, Justice Kavanaugh, you asked a question yesterday about --about the fact that mens [01:38:00] rea as a break only works at trial because the government's allegations are taken as true at the motion to dismiss stage. And I --I think that's exactly right.
[:[01:38:29] MR. GREEN: The same is true of First --First Amendment defenses if peace --peaceful protestors are charged with [c][2]. My friend referred to 1503 and 1505, other statutes within, and a number of the Justices have pointed out that there are much lower penalties for significant crimes.
[:[01:39:13] MR. GREEN: That in and of itself is a bad idea because it's going to chill protected activities. People are going to worry about the kinds of protests they engage in, even if they're peaceful, because the government has this weapon.
[:[01:39:51] MR. GREEN: Then, finally, I would say to the Court let's not forget that civil proceedings are [01:40:00] covered here --we --we would submit civil evidentiary proceedings --but civil proceedings. So the government is suggesting that the Court should unleash a 20-year obstruction --maximum obstruction statute on civil litigation in federal courts.
[:[01:40:27] MR. GREEN: We urge that the Court reverse the
[:[01:40:32] CHIEF JUSTICE ROBERTS: Thank you,
[:[01:40:33] CHIEF JUSTICE ROBERTS: The case is submitted.
