What Does "Corruptly" Mean? The Justices Really Do Not Want To Tell Us

Fischer and Snyder both ducked this issue.

Some federal criminal statutes require the mens rea of "corruptly." What does "corruptly" mean? In two cases this term, the Supreme Court has shied away from clearly defining this state of mind.

28 U.S.C. § 1512(c)(2), the statute at issue in Fischer v. United States, provides:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

Much of Fischer turned on whether the word "otherwise" limited the offenses in (c)(2) to the types of offenses in (c)(1). The majority opinion, by Chief Justice Roberts, found that (c)(1) did limit (c)(2), and the latter was not a "catchall" provision of all other obstruction offenses. Justice Barrett's dissent rejected that reading. Justice Jackson was, perhaps, the surprise vote, as she joined the majority. However, Jackson wrote a separate concurrence that distanced herself from what might be called statutory original meaning, and instead tried to determine legislative intent.

Who got it right? To use Loper Bright as a model, what is the "best" reading of the statute? And we know that there certainly can only be one "best" reading of a statute. This case is tough. In the court below, I was persuaded by Judge Katsas's dissent, which Chief Justice Roberts repeatedly relied on. Still, I found parts of Justice Barrett's analysis compelling. For all of my criticism of Barrett's background as a law professor–and others are making similar points–she shines with a question of statutory interpretation. This is the sort of case that will appear in all statutory interpretation casebooks. Barrett's discussion of hypothetical statutes, and responses to the Chief's zoo and football analogies, were very sharp. On balance, I think this is a close call. I can hear Justice Gorsuch screaming "rule of lenity" in the back of my head, so I would probably rule for the defendant here. But my interest here focuses on the mens rea of the statute, which did not directly inform the Court's holding.

Section 1512(c) only applies to one who takes the prescribed acts "corruptly." What does corruptly mean? The Justices really do not want to tell us.

Chief Justice Roberts explains that the government does not provide a specific definition of corruptly in this statute:

But the Government concedes that "Congress did not define 'corruptly' for purposes of Section 1512." Id., at 44. And while the Government suggests that "corruptly" is "'normally associated with wrongful, immoral, depraved, or evil' conduct," ibid. (quoting Arthur Andersen LLP v. United States, 544 U. S. 696, 705 (2005)), it never persuasively explains how "knowingly us[ing] intimidation" or "threat[s]" against someone is not "wrongful."§1512(b). 

It is difficult to define "corruptly" simply as "wrongful." If so, the word "corruptly" adds nothing to the equation. All of the acts listed in 1512 (altering, destroying, obstructing, and so on) are wrongful. The mens rea element must describe the state of mind when the defendant takes those acts. And the word "immoral" depends on some conception of morality. Can the government even prohibit immoral behavior after United States v. Windsor and Obergefell v. Hodges? That Court squarely held that "moral disapproval" was not a rational basis for state action. I do not think the government can criminalize an act simply because the government deems it "immoral." 

We are left with "depraved" or "evil." I'm not sure either word captures what "corruptly" means in common parlance. One can be evil without engaging in corruption. Even super-villians can act with honesty and candor. And one can be corrupt without being evil. Charities can perform important public service through bribing government officials for grants. "Corruption" and "evil" seem like distinct concepts.

In the court below, Chief Justice Robert's cited Judge Walker's definition of "corruptly":

Judge Walker concurred in part and concurred in the judgment because he read the mens rea element of the statute—"corruptly"—as requiring a defendant to act with "an intent to procure an unlawful benefit." Id., at 361 (internal quotation marks omitted).

This sense of "corruptly" embraces some sort of self-enrichment. Imagine a government official accepts a briefcase full of cash in exchange for taking an official act. A person who accepts that bribe–a clear quid pro quo–would likely have a "corrupt" state of mind.

The majority relies on the uncertainty of "corruptly" to suggest that the government's reading of the statute is too sweeping. Specifically, Chief Justice Roberts writes, Section 1512(c)(2) could be used to expose "activists and lobbyists alike to decades in prison." The Solicitor General acknowledged that "under the Government's interpretation, a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence," so long as she acts "corruptly." And if "corruptly" just means "wrongful," such a prosecution would not be hard to bring.

In dissent, Justice Barrett contends that "the 'corruptly' element should screen out innocent activists and lobbyists who engage in lawful activity." Perhaps that argument works under Judge Walker's definition, but D.C. Circuit precedents contend that "corruptly" means "using unlawful means" or "acting with an unlawful purpose." In other words, wrongful. Why would the protestor be screened out with this capacious definition? Barrett does not explain.

Justice Barrett also writes that "defendants can bring as-applied First Amendment challenges." Oh really? Only one week earlier, Justice Barrett joined Chief Justice Roberts's majority opinion in Rahimi, which rejected any as-applied in the Second Amendment context. I wrote about the issue here. I've since learned that this area of law is remarkably unclear. In short, it seems that on a motion to dismiss a criminal indictment, a defendant who argues that a statute is unconstitutional based on the First or Second Amendment can only raise a facial challenge. (The standard seems to be different for a challenge based on the doctrine of enumerated powers, like in Lopez.) As a result, the Salerno standard applies, and the defendant has to show the statute is unconstitutional in all regards. The overbreadth doctrine may be at play–if such a doctrine still exists–but an as-applied challenge is not permissible on a motion to dismiss an indictment. If Justice Barrett now thinks that an as-applied challenge can work for a First Amendment challenge, then she can revisit Rahimi. 

This term, the Court also had occasion to address bribery and "corruptly" in Snyder v. United States. This case turned on the line between a bribery and gratuity. In dissent, Justice Jackson wrote that it did not matter what "corruptly" means in this case.

Again, the precise meaning of the term "corruptly" is not the question before us today. Nor does it really matter here because, whatever "corruptly" means, Snyder's behavior clearly fits the bill, making this case a poor one to explore the contours of that term.

Jackson also cited the Arthur Anderson case to conclude that corruptly is related to "consciousness of wrongdoing." That would seem akin to a "knowing" mens rea or something to that effect. In other words, "Prosecutors must prove not only that a state, local, or tribal official did, in fact, act wrongfully when accepting the gift or payment, but also that she knew that accepting the gift or payment was wrongful." Is "corruptly" no different than a "knowing" that what you are doing is wrong, or unlawful? Can that be right? Or would corruption still turn on some sense of morality or evil? There is much left unexplained by Justice Jackson's dissent. (Jackson's Fischer concurrence did not even attempt to define "corruptly.")

In Snyder, Justice Kavanaugh's majority opinion tried to shed some light on the term:

Federal and state law distinguish between two kinds of payments to public officials—bribes and gratuities. As a general matter, bribes are payments made or agreed to before an official act in order to influence the official with respect to that future official act. American law generally treats bribes as inherently corrupt and unlawful. . . .

As those examples suggest, gratuities after the official act are not the same as bribes before the official act. After all, unlike gratuities, bribes can corrupt the official act— meaning that the official takes the act for private gain, not for the public good.

What makes a bribe "corrupt" is not the sequencing: that is, payment before official act; the quid before the quo. What makes a bribe corrupt is performing some official act in exchange for some personal benefit. Again, I would point to Judge Walker's definition of "corruptly" in the proceedings below: when one "act[s] 'with an intent to procure an unlawful benefit either for himself or for some other person." 

During the first Trump impeachment, Seth Barrett Tillman and I explained that it is important to separate a government official's "personal" benefit from any public benefit to society. The two are often difficult to disentangle. However, when one government official performs a public act in exchange for another government official performing a public act, there is no bribery, and they are not acting "corruptly." There is instead political compromise. Any attempt to criminalize those acts is criminalizing politics.