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.

Comments

[Randal]

I loved Barrett’s dissent here… and also Ohio! Both were equal parts compelling and biting. By far my favorite outcome of Thursday and Friday was her dissents… on behalf of the libs!

Barrett may be a better liberal advocate than Sotomayor at this point!

[Sam Bankman-Fried]

ACB is a Bush Republican like Kavanaugh…which is why Collins supported them. So Collins was about to vote no on Kavanaugh until she got a call from W Bush.

[mike petrik]

The assumption that the Justices are all just rationalizing their preferred outcomes is embarrassingly naive and tiresome.

[Rev. Arthur L. Kirkland]

Agreed. It rarely occurs but in the event of a disagreement Justice Thomas rationalizes Harlan Crow's (or Leonard Leo's) preferred outcome rather than his own.

[Kazinski]

Looking at the otherwise issue, while the zoo and the football analogies were somewhat illustrative what clinched the argument for me was Begay which was very closely on point:

“Take Begay v. United States, 553 U. S. 137
(2008) (abrogated on other grounds by Johnson v. United
States, 576 U. S. 591 (2015)). The question there was
whether driving under the influence qualified as a “violent
felony” under the Armed Career Criminal Act (ACCA). A
“violent felony” was defined in relevant part by ACCA as a
crime, punishable by more than a year’s imprisonment, that
“‘is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of physical injury to another.’”Act.”

Wikipedia sums up Begay thus: “Begay v. United States, 553 U.S. 137 (2008), is a United States Supreme Court case which held that felony driving while intoxicated is not a “violent felony” for purposes of the Armed Career Criminal

I don’t think that is controversial at all that felony DWI Is not a violent felony under the armed career criminal act even when there is a rifle in the car, because it is not similar to “burglary, arson, or extortion, involves use of explosives” even though it “or otherwise” “involves conduct that presents a serious potential risk of physical injury to another.”

I’m quite convinced in Begay that DWI is not what the ACCA is Intended to target so it should be limited similar crimes that proceed the “otherwise”. The analysis is identical, so Fischer must follow, at least if precedent is still a thing.

But it would have been nice to reach corruptly too.

[Randal]

Barrett answered this argument pretty convincingly.

[Kazinski]

She did? It wasn't even convincing enough for Jackson, let alone the other 5 justices in the majority.

Actually she pointed out that after the court let Begay go because DWI even though it “presents a serious potential risk of physical injury to another” it wasn’t closely related to the preceding list of crimes, that then about 7 years later the court threw out the residual clause “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”, because of vaqueness and the rule of lenity applied.

In this case neither side or any of the justices proposed thowing out the residual clause, but it seems to me there is very little difference in precision between:
“otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so”

and

“or otherwise involves conduct that presents a serious potential risk of physical injury to another.’”

If Barrett had been on the court for Begay, you would hardly praise her for being on the “liberal” side for voting to uphold Begay’s sentence as an Armed Career Criminal for a DWI.

The court upheld its precedent in Begay, if Begay isn't good law anymore perhaps it should move on and uphold its precedent in Johnson, and throw the clause out entirely.

[Randal]

The point Barrett made is that Begay isn't a good comparison for (c)(2) because the "otherwise" clause in (c)(2) doesn't come at the end of a list, so noscitur a sociis doesn't even apply. Hard to argue with that because it's true.

[Kazinski]

Jackson in her concurrence also dings the majority for its use of the canon in a footnote:

"The majority invokes the canons of noscitur a sociis and ejusdem generis to support this inference. See ante, at 5. Those canons are useful interpretive tools, but in my view, they are ultimately only devices used in furtherance of achieving our goal of determining “the intent of Congress.”

And I agree with Jackson somewhat about the use of canons that Congress might not be following.

But still I see a very close resemblance to the Obstruction and ACCA, that was first narrowed, then struck for vagueness.

What it.comes down to is if Congress meant to ban any kind of obstruction of official proceedings in a white collar crime bill, then they should have been clearer about it.

[Randal]

That's a very different argument than Begay. Much more along the elephants / mouseholes dimension. And I agree it's a better argument, especially in combination with lenity.

But I still prefer just looking at the plain text. Courts engage in way too much creative reading, especially SCOTUS.

[mike petrik]

Relying on the plain text is also more consonant with due process. The cousin to a secret law is a law that doesn’t mean what it says.

[not guilty]

In the District of Columbia case, Donald Trump acted corruptly under any definition of the term. His conduct was intended to secure a benefit to which he was not lawfully entitled -- an additional term of office as president.

The salary alone for a four year term is $1.6 million.

[Kazinski]

Are you acting corruptly if you have given no thought whatsoever to the 1.6m?

I'm not sure it matters right now but it may in the future, since the DOJ is going to have to restructure its case, either to bring in the elements of Trump altering, destroying or forging a document, or drop the two obstruction charges.

Oh yeah, and wait another few days to see what's going to happen with the immunity decision, and see if that's going to affect the case too.

[not guilty]

My point is that Donald Trump acted corruptly for purposes of 18 U.S.C. § 1512(c) by trying to secure a benefit to which he was not lawfully entitled. That is corrupt conduct no matter how defendant-friendly the culpable mental state may be construed.

"I’m not sure it matters right now but it may in the future, since the DOJ is going to have to restructure its case, either to bring in the elements of Trump altering, destroying or forging a document, or drop the two obstruction charges."

Uh, no. Donald Trump should not benefit from the Fischer decision. The Court there opined:

When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct [listed in subsection (c)(1),] subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.

https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf (slip op. pp. 8-9) [Emphasis added.]

Per the existing indictment, Trump corruptly attempted and conspired with others to create false slates of electors, to transmit those bogus documents to Congress and to persuade Vice-president Pence to recognize the false documents in place of the legitimate slates of electors from various states. For purposes of a motion to dismiss, the allegations of the indictment must be taken as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952).

Trump personally attempted to persuade Pence to accept the bogus elector slates and to unilaterally reject the legitimate slates. That constitutes a corrupt attempt for purposes of 18 U.S.C. § 1512(c)(2). Also, ¶ 7 of the indictment charges that the purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. The creation and transmission of bogus electoral slates was creating false evidence for use in an official proceeding -- conduct which Chief Justice Roberts gave as an example of violating § 1512(c)(2). That conspiracy to violate § 1512(c)(2) is actionable under § 1512(k), and Trump is culpable for the actions of his coconspirators.

[Mr. Bumble]

You've been crying "wolf" for so long that it's getting hard to listen.
As your favorite bogeyman likes to say, "we'll have to see what happens".

[not guilty]

Mr. Bumble, do you surmise that Chief Justice Roberts included the language, "it is possible to violate (c)(2) by creating false evidence", merely by happenstance?

[Mr. Bumble]

When it comes to CJ Roberts language I find it difficult to surmise anything.
We'll see what happens.

[Brett Bellmore]

"My point is that Donald Trump acted corruptly for purposes of 18 U.S.C. § 1512(c) by trying to secure a benefit to which he was not lawfully entitled."

Ah, but suppose he genuinely believed, (Assume he's delusional about it...) that the election was stolen, because there was no way Joe Biden could have beaten him in an honest election.

In that case he'd have thought that he was lawfully entitled to it, and was just attempting to "unsteal" the election.

[not guilty]

Brett, Donald Trump's lawyers are free to argue that theory to the jury -- at the risk that jurors will check the soles of their shoes to see whether they had stepped in something foul.

But it doesn't get Trump a dismissal prior to trial or prior to submission to the jury.

[Brett Bellmore]

Well, no, defenses don't (Necessarily...) get you out of being prosecuted, just out of being convicted.

Take that famous call between Trump and Raffensperger; He asked for access to records so that he could prove fraud, Democrats routinely construe this as a demand that Raffensperger invent fraudulent ballots.

Just assuming that anything Trump is up to must be corrupt, and interpreting all evidence to that end, even if you have to ignore details (Such as what he actually said during that call!) is endemic on the left. That doesn't mean that in an actual trial he couldn't produce evidence of innocent intent, and it might even matter if the jury were chosen someplace other than DC or Manhattan.

[not guilty]

Brett, do you suppose that Trump could adduce evidence of an innocent mental state other than by testifying and subjecting himself to wide open cross-examination? If so, how would Team Trump do that? For Trump to testify would be fraught with peril.

[Brett Bellmore]

Real world trials are peril end to end, doesn't mean people don't get acquitted from time to time.

[bernard11]

If I think I'm entitled to a bonus at work, possibly because I misunderstood something my boss said, and don't get one, I'm entitled to embezzle the money from the company?

You want to think about that?

[Mr. Bumble]

So you're like Michael Cohen?

[Brett Bellmore]

I think that's a terrible analogy, because it builds guilt into the starting premises, embezzlement by definition always being wrongful.

1. Trump thinks the election stolen.
2. He thinks that an adequate investigation can prove this.
3. People in a position to refuse to conduct/order such an investigation.
4. He's heading into a vote in Congress whose outcome is predetermined, because all the elector certifications are products of 1-3.
5. In the Kennedy/Nixon election, duplicate elector slates were entered to preserve the contest long enough for the dispute to be settled in Kennedy's favor. Nobody got prosecuted for saying they were the electors, though somebody else had actually been certified.
6. So, produce alternate elector slates, who by that precedent are a legitimate way of preserving the controversy, and get a vote in Congress to do an investigation to look at his claims. Rather than proceeding to a pre-determined coronation for Biden.
7. Then, of course, that mob breaks into Congress, and the whole plan comes crashing down as a result. Very convenient for Biden, I think.

Now, do *I* think Trump was being reasonable? Hell, no. I think it's barely possible that the election was in some sense stolen, sure; It was quite close in several states where there had been ad hoc changes to election procedures.

But the odds of being able to prove the election stolen were essentially zero, precisely because of the chain of custody issues those changes resulted in. It was a lost cause. I think Trump was too close to it and too emotionally invested to admit that the absolute most you'd be able to prove was that the election being stolen was within the margin of possibility.

That gets town council and mayor elections rerun occasionally, but we have no mechanism for rerunning a compromised Presidential election, which is a large part of why the courts were so hostile to begin with; They won't entertain cases where no remedy is available!

In some ways it's similar to the way Gore couldn't admit he lost in Florida, and engaged in some really dubious legal maneuvers in an attempt to undo his defeat. Except that the Florida SCOTUS had his back that time, and none of the courts had Trump's back. So Gore gets a misplaced gloss of legal legitimacy for what he was doing.

[mike petrik]

Exactly right. Trump could have helped himself a ton had he listened more to his able AG, who tried unsuccessfully not only to explain to him real post-election facts but also to act promptly when various dubious state voting machinations were first being launched the Dems.

[Roger S]

Congress apparently thought that Trump had a legitimate legal argument, as it amended the Electoral Count Act in 2022 to close the loophole.

[not guilty]

"Now, do *I* think Trump was being reasonable? Hell, no. I think it’s barely possible that the election was in some sense stolen[.]"

I see. Even a sycophant like Brett doesn't have reasonable doubt. A possible or theoretical doubt is not a reasonable doubt, as juries are routinely instructed.

[bernard11]

I think that’s a terrible analogy, because it builds guilt into the starting premises, embezzlement by definition always being wrongful.

As is stealing an election.

You make a big deal about having alterante electors standing by. But that wasn't the plan in most cases. It was to submit fraudulent slates.

Besides, Trump used all the normal, legal, means to challenge the results. For him, or anyone, to still believe it was stolen from him is psychopathic.

And just how many fucking investigations is he entitled to? What exactly gives him the right to demand something that's never been done, based on non-existent evidence?

You're so deep in the Trump rabbit hole I'm surprised it's not getting really hot for you.

[David Nieporent]

1. No, he didn't.
2. No, he didn't.
3. No, they didn't.
4. Yes, it was predetermined, because the counting of electoral votes is a ministerial act.
5-6. That is a complete distortion of what happened. In fact, there was an ongoing recount in Hawaii at the time the electors voted, and nobody knew who won. But by the time it came for Congress to count the votes, there was one slate, certified by the governor. Congress did not pick and choose who to count as electors. (Also, this wasn't an attempt to steal the presidential election; by the time any of these events happened, everyone knew that Kennedy had won and that Hawaii didn't matter.)
7. Again, the mob was part of the plan. It was designed to buy time for Trump to pressure state legislatures to change their states' electoral votes.

[David Nieporent]

Ah, but suppose he genuinely believed, (Assume he’s delusional about it…) that the election was stolen, because there was no way Joe Biden could have beaten him in an honest election.

Well, as I've said, if Trump wants to pursue an insanity defense, let him.

[Kleppe]

"Per the existing indictment, Trump corruptly attempted and conspired with others to create false slates of electors, to transmit those bogus documents to Congress"

Is that not the proper, legal way to contest the election results? Has it not been done before? It isn't a crime to have a losing legal argument.

I do enjoy that the liberals have drawn a new line in the sand for what constitutes proper post-electiom behavior. It will almost certainly come back to bite them, and sooner than they may think.

[Josh R]

As not guilty pointed out, whether Trump acted honestly to contest the results or corruptly to steal the election is a determination for the jury to make. It does not result in a dismissal because of Fischer.

[ReaderY]

The SJ had specifically argued this point with Trump in mind. I think everybody understood what this meant. Trump can still be tried for this crime even under Fisher’s narrowing definition.

I think there would be no problem finding that “corruptly” applies to Trump as well.

[not guilty]

Keep in mind that when Chief Justice Roberts included the language about creating false evidence, he knew how the immunity case is going to turn out. In all likelihood, he will be the author of the opinion in that case as well.

[JesusHadBlondeHairBlueEyes]

Every analysis of his re: Trump is him acting corruptly.

He's a goal seeking ideologue and hyper-partisan putting on airs for the ignorant Democrat toadies on this board who still believe he's a serious thinker.

[Roger S]

No, he acted to get a fair count of the votes.

[Mr. Bumble]

So Trump acted corruptly for a salary of $1.6 million (which he gave away during his term as president)?

[ReaderY]

No, seeking to obtain an office and power one knows one isn’t legitimately entitled to is, by itself, acting corruptly, even if it didn’t come with perks like free housing in addition to the salary.

[Stephen Lathrop]

It is a salary in Trump’s corrupt case dwarfed by prospects for unaccounted emoluments beyond measure. If in fact any or all of the immunity Kazinski posits comes to pass, it will create the first known example of a strong-force equivalent in political corruption—a chance to sell out the nation so-lucratively that it overcomes every other attractant or repulsion known to man.

[Brett Bellmore]

"It is a salary in Trump’s corrupt case dwarfed by prospects for unaccounted emoluments beyond measure."

In reality, being President actually COST Trump at least hundreds of millions, possibly a couple billion. His net worth declined dramatically once he ceased actively managing his business empire, and, realistically, as a consequence of the lawfare against him due to his having been elected.

[bernard11]

You've seen his books?

His net worth declined dramatically once he ceased actively managing his business empire,

Evidence that it declined? Evidence that it was due to mismanagement that he would have avoided? Evidence that he knows how to manage a business. There's plenty that says he doesn't.

[Brett Bellmore]

Your being ignorant of widely reported news doesn't mean I'm inventing things. Yes, his net worth lost about a billion dollars while he was President.

[bernard11]

OK. So his net worth dropped. My mistake. But that overlooks a few things:

1. Much of his current wealth is from Truth Social, or whatever it is. He wouldn't have that had he not been President.

2. Much of the decline in his real estate holdings was part of a general drop in RE values. There is nothing at all to suggest that the loss of his managerial brilliance was the problem.

[Mr. Bumble]

Truth Social was the result of being banned from other platforms on a whim and if he had remained a president for a second term we likely would not be in the shape we're in.

[David Nieporent]

Except that Donald Trump's finances (other than Trump Media & Technology Group) are private, and nobody outside the Trump organization knows what his net worth was, before he became president or after. You've been told before that all Forbes was doing was guesstimating. And given that Trump has already been found liable for massive fraud for lying about his net worth to banks, it's particularly ridiculous for you to keep saying these things.

[ReaderY]

I would tend to look at this much more narrowly, without having to answer side questions like whether Trump gained or lost financially on bet. He might have lost. I think attempting to obtain an office and power he isn’t entitled to is acting corruptly, whether he ends up richer by it or not.

[Krayt]

By the bizazarre definition conjured into existence so they could misapply the term for its rhetorical effect, perhaps.

Corruption are officials getting in the way, until their waggle fingles stop wagging.

Paying someone to shut up about sex is smarmy, but not corrupt. Prosecutors misusing a law designed to force reporting of donors, so The People can judge possible tit for tat does not apply to donating to oneself. Calling it a value to a campaign does not make it a donation. I have a rough enough time with donations from others, but ok, you need to know possible tit for tat. No such is here.

It’s ironic they had to stretch corruption out of all recognion, to git ‘im, when all this effort is one hypergigantic actual effort to influence an election.

Lying abusers of government power, take the plank out of your own eye first.

[Stephen Lathrop]

For what it may be worth in the remarks which follow, my resume includes professional typographic experience enough to qualify me as an expert witness at any enquiry where typographically-related questions might have relevance.

Speaking stylistically, the statutory text noted in the OP contains an egregious typographic error, if the text was intended to have the meaning Roberts attributes to it. Alternatively, and far more likely, Roberts has ignored relevant typographic distinctions to mis-read the the text, presented thus:

(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,

A principal objective pursued by choices among typographic usages is to select formatting which accurately delivers graphical analogy to intended meaning. To follow that rule requires, among other things: terms with equivalent status get identical formatting; terms with differing meanings will not share formatting characteristics with those they differ from; and superfluous differences in formatting which do not signal differences in content meaning get corrected as typographic errors.

In the example Roberts misinterpreted above, the initial em-dash acceptably does the customary work of a colon, signaling the start of a list of equivalencies. A colon could have been selected instead without changing the meaning, but only if all other equivalent instances in the same document made the same choice. It would have been typographical error to use a colon in some meaning-equivalent usages, and an em-dash in others.

By the choice to use commas in sequence, the items in the list presented under the first enumeration are separated differently than the enumerated items. Typographically, a list separated by commas signals examples associated with each other, but implies the possibility of minor differences among them. It is a typical way to distinguish typographically a range of choices used to illustrate an acceptable range of variation among equivalents or near-equivalents.

At the end of that list of terms related by equivalency there occurs a thunderous graphical marker to emphasize separation of what came before, from what comes after—the choice to divide graphically with, "; or" and follow it with a second formatted numeral. That undoubtedly deliberate choice wipes out any possibility that the intent was to associate what follows with what came before. To ignore that, when presented in the larger graphical context, is where Roberts made an egregious error of interpretation.

Note also, that the choice to format explicitly with a numeral in parentheses each of the two items on the list announced by the em-dash had its own significance. It went beyond minimal requirements to express the same equivalent status, which could have been achieved with no more than a paragraph break and extra line spacing, which was also used. Thus, in typographic terms, the separate status of equivalency associated with each of the two enumerated items has been graphically emphasized by use of no fewer than 3 redundant formatting choices:

(1) paragraph breaks marked by extra line spacing;

(2) enumeration;

(3) parentheses to reenforce the visual impact of the enumeration.

That extra-intensive explicit formatting stands in contrast to—not in association with—the different formatting choice used to suggest a range of near-equivalencies by use of commas between items. Typographically, "(2)" and the text which follows cannot remotely be indicated as being in association with the list of comma-separated items, as Roberts' interpretation requires.

For the cherry on top of the typographical analysis, simply look up the dictionary definition of, "or," with particular emphasis on that word's customary use in logic.

I thank in advance any would-be textualists who happen to read this analysis, for their conscientious dedication to do everything which the term, "textualism," literally implies. And of course I acknowledge that the kind of typographic rigor urged above cannot be expected to apply to antique usages from former eras when typographic rigor remained a less-disciplined aspect of expressive arts.

[Mr. Bumble]

Well aren't you special.

[Don Nico]

Compliments on a clear and persuasive analysis.

[Mr. Bumble]

Apparently not persuasive to Roberts.
Try as we might it is so hard to put into words what we actually mean.

[mike petrik]

Not in this case.

[mike petrik]

Hear hear.

[Commenter_XY]

The economy of speech and lucidity of this analysis is astounding, Don Nico, is it not? 😉

[Don Nico]

The comment is very lengthy, but Lathrop has not left holes. It is one of the most rational post he had made in months

[gVOR08]

Your clear exposition of your case is to be commended, as is your typographical expertise. But the Supremes just found in Loper Bright that we don't need no steenking expertise. Stealing somebody's line, from now on Judge Cannon will determine whether your Boeing 787 is safe.

[NvEric]

So, 18 U.S. Code § 1512 - Tampering with a witness, victim, or an informant , a heading stating attendant to persons BTW, (c)(2) should be read like this :

"Whoever corruptly or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so," ?

which would then include any and every thing possible, such as writing letters to the editor, speaking to one's family, and maybe even praying silently.

[Brett Bellmore]

It strikes me that, while you can argue that the "corruptly" does not have a huge amount of bearing on the first tine of the fork, given the intent requirement and that those acts are generally wrongful anyway.

But the second tine, "(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,"?

Absolutely requires that "corruptly", because it doesn't explicitly require intent, and the acts are not inherently wrongful.

Attempting to influence official proceedings is routine and basically unavoidably part of a democracy. Double parking could obstruct or impede a proceeding. You absolutely need some proof of corrupt motivation here, or else the statute becomes wildly over-inclusive.

****

Anyway, I'm really looking forward to next year, when the Trump DOJ hauls out this statute and goes after the J-6 committee's destruction and concealment of records. It will be a real popcorn moment.

[JesusHadBlondeHairBlueEyes]

Watch all the squealing and hyperventilating from these doofuses on this board if any Democrat faces any justice for the myriad of crimes they've been getting away with so far.

[MikeNY]

"All of the acts listed in 1512 (altering, destroying, obstructing, and so on) are wrongful."
Has anyone here ever visited the office or home of Prof. Blackman?
I ask because if he believes these things are per se wrongful I can’t see how he takes out the trash. And certainly has never dropped something smashing it to pieces. Some of those verbs can happen accidentally or even intentionally but not wrongfully- I’m sure the good professor edits. Whatever "corruptly" may mean, it surely requires the act have not been accidental or for an ordinary purpose.

[Brett Bellmore]

Well, they're all wrongful if done "with the intent to impair the object’s integrity or availability for use in an official proceeding", anyway.

[Noscitur a sociis]

I destroy documents (charts, summaries, etc. that I prepared) all the time to prevent their availability in official proceedings (because I make a different version that I want to use instead).

[mike petrik]

ACB’s construction is clearly correct. The majority needs a remedial lesson in reading and simple grammar.

[Mr. Bumble]

Thank you for your opinion. Looking forward to seeing you on the Supreme Court.

[mike petrik]

Doesn’t pay enough.

[Mr. Bumble]

Oh, I don’t know. Lifetime tenure, summers off and lucrative book deals don’t sound so bad.
Has anyone left the court poor?

[bernard11]

Depends if you count being dead as being poor.

[Mr. Bumble]

I count being dead as being dead but if you accept Pascal's wager on the existence of God: "Better to bet on the existence of God, for if you gain, you gain all", which I suppose is as rich as you can be.

[Sorcer23]

You seem to be overly concerned with morality in all this. Would it not be much simpler to focus on ethics instead. That should give one an easier road to deciding if what was done was done corruptly, I would think. How about you?

[zvwmzvwmzvwm]

Take a cruise, Josh

[John F. Carr]

"Knowingly" is another flexible word, one with too many definitions instead of too few. I remember a case decades past when the dissent wondered if committing a traffic violation on the way to the transaction would be enough to prove the defendant knew he was breaking the law.

[Area Man]

Sometimes I think Blackman has some good insights, others I just can’t believe he’s a constitutional law professor.

Re facial vs. as-applied challenges, in a criminal case, of course you can’t (generally) have a pretrial as-applied challenge because the facts of your case have to be established to make such a challenge. That’s done during trial. After the close of evidence, then you make your as-applied challenge.

There’s one exception to this: When the only relevant fact that needs to be established is undisputed and indisputable. A few years ago, Rick Perry was prosecuted for exercising his veto power. No other fact was really relevant besides whether he was the governor at the time. Since that fact was both undisputed and indisputable, the state courts allowed a pretrial as-applied challenge to the statutes he was charged under.

[not guilty]

Blackman posits that Rahimi forecloses as applied challenges under the Second Amendment. It does not.

Zackey Rahimi could not himself make such a challenge because he pleaded guilty, reserving only the facial challenge for appeal.

[Rigelsen]

For a legal blog, there are an inordinate number of commenters who only care about about the law only insofar as they can use it to get their political opponents. Generally even without regard to what might happen if the shoe was on the other foot. “Hey, how about we read this law written to target specific white collar corruption so that pretty much any behavior intended to influence the political process can be read as illegal? What could go wrong?”

Anyway, thanks for your analysis, Josh, and summarization and contextualization of the different arguments.

[Krayt]

I pointed this out with Clinton's impeachment. What started as the Whitewater investigation ended years later with...legal troubles for hiding sex outside marriage.

The Republicans had no problem with a special prosecutor churning endlessly, or using process crimes for leverage to get people to crack. Until they finally got something.

I wonder who'll get it next time, in 20 years. One thing's for sure, everyone in favor of that guy will be full throated it's about rule of law and not getting an opponent. And those against will try to shiny up their bubbled, rusty chrome halos, and say LOOKIT ME!

[Brett Bellmore]

As I pointed out at the time, and every time this comes up: Just because you're trying to conceal an affair doesn't mean that perjury and subornation of perjury, and destruction of evidence under subpoena, suddenly become legal.

Though I thought that the real issue there was the way Clinton's staff sprang into obstruction of justice like a well oiled machine; Really puts a different light on all those prior scandals that just petered out in a morass of missing evidence and people refusing to testify, doesn't it?

[NvEric]

Barret errors on page 12 of her dissent

"In contrast to (c)(2), this provision—which carries a significantly lower maximum penalty—does not require a defendant to act “corruptly.”"

Wrong ! (c)(2) is not a standalone part, but is in fact prefaced by "Whoever corruptly" (c)(1) "or" (c)(2)

[David Nieporent]

Wrong ! (c)(2) is not a standalone part, but is in fact prefaced by “Whoever corruptly” (c)(1) “or” (c)(2)

Wrong. You should read more carefully. Barrett says In contrast to (c)(2), , this provision — that is, §1512(d)(1) — does not require someone to act corruptly.