Transcripts For CSPAN Supreme 20240703

Kimberly robinson, she covers the Supreme Court am here to fisher versus united states. Mr. Green . Mr. Chief justice, may it please the court. Congress enacted 1512 c in 2002 in the wake of the largescale destruction of enrons documents. It prohibits the impairment of the integrity or availability of information and evidence to be used in a proceeding. In 2002 congress hedged and added section c2 to cover other forms of impairment, the known unknowns. It was the dawn of the information age. Until the january 6 prosecutions, 1512 c to the otherwise provision, had never been used to prosecute anything other than evidence tampering. This cortez said when otherwise used in the criminal statute, means to do similar conduct in a similar way. The government would have you ignore all that or disregard all of that and instead convert c 2 from a catchall provision to a dragnet. One of the things that would cover his section c 1 that leaves c1 and c2 to do independent work. The january 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. The enron driven evidence tampering statute is not one of them. I welcome the courts questions. Mr. Green, how do we determine what these provisions have in common. Do we look after the otherwise or before . And why . Look at before, Justice Thomas. You look at the kinds of manner in which documents and records are to be impaired and then you look after to see what the effect is. I would submit that the effect is the same. In order to cause the impairment of the integrity of the evidence that is to be used in the preceding or to prevent its availability. Oh so we look back and we look forward. Wouldnt it be just as easy to look at the c 2 and ask what it has in common with c 1 as the and use c2 provisions as the basis for that similarity . No, because c2 speaks to the effect of the actions that the otherwise clause covers. In other words, we look at c 1 and see that congress is concerned about documents and records and other objects and things that are done to impair the integrity of those. The effect of that is to obstruct. C 2 omits that object and verb section. You could just as easily say congress is really concerned about things that obstruct, influence, and impede the official proceedings. And that is c2. So why isnt that the basis for the similarity . Because of the presence of the otherwise provision. So otherwise, as i mentioned, otherwise, the court said, needs to dos means to do similar conduct in a different way. What weve got here is the impairment of evidence being done in a different way. Im sorry. I thought, yes, doing it in a different way. Let me give you an example. There is a sign on the theater you will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance. If you start yelling, i think nobody 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 is not the manner in which you obstruct. It is the fact that you have obstructed. Isnt that the structure of this provision . It is. It is in part the structure of the provision. But what your hypothetical omits is that there is a specific matriculation, i guess it is called, of all the different sorts of things that might be done to evidence to begin with. Except what is fascinating about 1 that is not about 2 is that one doesnt require you to have actually impeded the preceding. One requires you to have that intent but you dont actually have to accomplish the intent. 2 requires you to accomplish the intent so that is a very different articulation of what the object of 2 is. The object of two is the actual disruption of the proceeding. I would respectfully disagree. Why . Look at the language. New lights or mutilates or conceals a record. I do that in my home. I do that anticipating that it might be needed. All i have to do is have the intent to impair. By that very language i do not have to have an actual proceeding i have impaired. On two you need an actual proceeding to impair. I guess i am a little bit confused. As i read this, i would think that the government would say that any attempt at one is also covered by the statute. Im not sure i would disagree. I do not think that there has to be an actual impairment. No. I do think under 1 you dont need an impairment but under 2 you do. If you read it, the verb requires you to actually obstruct proceeding in 2. Nowhere in 1 do you have to obstruct. In 2 you only have to attempt. To do the things that are in two. No, otherwise obstructs or attempts to. Lets imagine we agree with you. On remand do you agree the government could take a shot at proving your client actually did try to interfere with or under c1, actually under c2, 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 evidence impairment theory . Im quite sure that my friend would take a shot but i would say no. The reason why is that this statute prohibits operation on specific evidence in some way shape or form. Attempting to stop the count or Something Like that is a very different act than actually changing a document or creating a fake document. He is obstructing evidence of in my hypothetical. Hes not actually altering the vote certificates which is why i corrected myself. And said under c2. Would that be different than somebody, saying a trial or criminal proceeding trying to prevent evidence that was going to be introduced for making it there. From making it fair . I imagine him acting on the certificates, not the act of counting them. I think you could try it but i dont think talking about we are talking about trying to impair anything other than the evidence itself. We are trying to obstruct a proceeding. Theres questions about what proceeding means here. As your honor knows. But what the government would essentially be doing as you noted is converting what they have charged in c 2 to a c 1 type of crime. No. Maybe im misunderstanding your argument but i thought it was that c2 picks up other things but they have to be evidence related. In the hypothetical im giving, it is evidence related because it is focused on the certificates but it is obstruct or impede the certificates arriving to the Vice President s desk insofar as the goal is to shut down the preceding and therefore interfere with the evidence reaching the Vice President. That is closer. It is definitely closer. If you zoom out and look at all of 1512 in order to understand what kinds of impairment we are talking about, we are talking about or congress is prohibiting the kinds of impairments that actually change documents that affect their integrity. If it is just impeding or delaying we would submit that actually, that is not part of 1512 see. Delays are mentioned in five other parts of 1512. Mr. Green, if Justice Barrett is wrong what work is c2 doing . It seems like you have just now rearticulated only the theory of c1 and you are saying you have to make it into c1 in order to have the statute apply. Can you help me at least understand under your theory what additional thing does c2 offer . Lets look at the verbs of c1 which are alter, destroy, mutilates, and conceal. Lets think about the antonyms. Instead of destroying would be actually to create. One could use some sophisticated computer program. We have heard an awful lot about ai and weve heard about the possibility of deep fake photographs. I think you would violate c2 if you created a photograph that established your alibi in some extremely sophisticated way that would get it admitted into evidence. Or make it submitted for evidence i think. So you are saying there are things other than particularly altering, destroying, mutilating or concealing but it has to be limited to a record. Not necessarily. Another example would be not to conceal but to disclose. If i disclosed a witness list in a large multi defendant drug trial, my purpose in doing that, though i havent altered the document, would be to intimidate the witnesses or prevent their attendance. That on our submission would also violate. Can i ask you one other question so i can understand the theory . You keep using the term evidence. That does not appear in the statute. The statute c1 says record, document, or other object. I appreciate that evidence can be such a thing but you imagine a world in which those two are different. So where does evidence come in in your theory and why is it there . The statute for the tampering refers to the tampering of witnesses, victims, and informants. Along with witnesses, victims, and informants comes evidence they provide whether in the form of testimony or documents. X i understand but the provision we are talking about doesnt use the term evidence. Instead, or in addition it uses the term official proceeding which is elsewhere defined not in terms of Court Proceedings or investigations, it is just a proceeding before congress. So is it your argument that the only thing this provision covers is something tantamount to evidence in an investigation or trial . It is. We are not limiting, our position does not limit to documents or records. I would submit that c1 carries into c2. Through the otherwise clause. When it says other object. It is pretty broad and it need not be as 1512 f provides it may need not be admissible. It could cover things like electronic records. It could cover communications. It could cover emails and all kinds of things we think get used by factfinders in a normally convened hearing. We will take you back just a quick question. What about the Second Circuit decision . What was involved was not evidence. It was a forged court order. With that fall within c2 . Yes. We think that does fall within c2. Anything that is falsified in this operative way that is used to obstruct a proceeding would be covered by c2. Just to take you backo the question that Justice Thomas started you with. It seems there are two choices here. You can read this as otherwise obstructs a proceeding or otherwise spoils evidence. You are using it to say otherwise spoils evidence with spoils being all those verbs. It does not say that. It says otherwise obstructs a proceeding. There are plenty of ways to write the statutes that you want to write. You could just say otherwise affects the integrity or availability of evidence in an official proceeding. You could combine official proceeding with evidence and otherwise. You could replicate the mens rea that c1 has. There are multiple ways in which c2, in which the drafters of c2 could have made it clear that they intended c2 to also operate only in the sphere of evidence spoilation. It does not do that. All it says is otherwise obstructs, influences, or impedes. Certainly the statute could be written more precisely. Any statute could be written more precisely. Its not a question of precisely. Its a question of otherwise. This is what Justice Thomas said in the beginning. What is this otherwise taken taking from c1 . Of course there is commonality involved in an otherwise but what is the commonality that it that c2 is drawing from c1 . It tells you what the commonality is. The commonality is that the things that fall into c2 also have to obstruct, influence or impede. But what c2 does not say is that everything in c2 also has to spoil evidence. This court has said that otherwise in a criminal statute means similar conduct. Similar conduct. Obstruction of a proceeding. Different ways of carrying out that similar conduct which is obstruction of a proceeding. The statute tells you what the similar conduct is, right on its face. Respectfully, Justice Kagan, the statute tells you what the effect is. The conduct that is specified in c1 is altering, destroying, mutilating, concealing a document or other object. So a draft of the statute could a drafter of the 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. We are not going to repeat what we said there, but we will use a connector like otherwise to demonstrate that we are talking about similar conduct. I would submit, your honor, if you look at c2 alone please. What is your best case for this going backward and trying to find language that does not appear in the otherwise provision and trying to incorporate it into the otherwise provision . That is our best case for sure. That is not a very good advertisement. What this does is exactly that. You have a good case there and it was a complete failure. They said we look back at this thing congress did, did not use in the otherwise provision and we derive various things from it and we put it in. It was purposeful, violent and aggressive. A few years later we said where did that come from . We made it up and we get rid of the whole thing. That is not a great advertisement for rewriting a statute to take an otherwise provision and turn it into an otherwise provision that says something else. We could submit that that was aggregated on other grounds. And that was the members of the court could not decide between an assessment of the types of things that came before otherwise versus the level of risk. When that began to play out and in complicated cases like chambers and many others involving escape from a halfway house. It became, the court said, an untenable proposition to figure out what a potential harm to another person might be looking at what came before. I am sorry. Finish your sentence. That does not mean that the Courts Holding about how to construe a statute with and to fill holding was otherwise was aggregated in itself as a result of those cases. Im not a fan of the case. Some of us perceived at the time that there were different problems with with the courts did. But i think there is a point that youve been having, the specific types of conduct that are enumerated, alter, destroy, mutilate, conceal, destroy documents have two things in common. One, they all involve documents or objects. They also all involve impairment of the object integrity or availability for use in an official proceeding. The similarity could be either of those things. I think that you may be biting off more than you can chew by suggesting, if you are indeed suggesting that the otherwise clause can only be read the way you read it. One might say it certainly can be read the way the government reads it. That might even be the more straightforward reading but it is also possible to read a clause like this more narrowly and judge katz has provided an example of that. In his opinion. If you have a statute that says anybody that kills or injures or assaults someone that otherwise causes serious injury you would not think that applies to defamation. So it could be read your way. So then i think you have to go on to some other arguments and explain why your reading is better than the government reading. Certainly. I would submit that there are plenty of other reasons why our reading is the better reading. Im not going to contest or bite off more than i can chew and say that the governments reading of c2 is implausible. We think it is unsound, but for the additional reason that looks like at what the prohibited conduct is. In 1512 we are generally talking about the interference or operation on forms of evidence and testimony that obstruct a proceeding. That is what 12 is all about generally. I would submit that as the briefing indicates, those two venerated latin canons also operate in our favor here as well as the broader context of chapter 73 and section 15. All of these things are about doing things that obstruct a proceeding. 1512 and 1512 c zero in on that. Witnesses and evidence. You have other arguments. You have surplus arguments. You have arguments about the breadth of the governments reading of the provisions. Do you want to say anything about those . With respect to surplus, i would refer to judge catss opinion like you did. Particularly in page 88 of the joint appendix the list different provisions in 1512. 15 of the 21 b would would be subsumed by the government reading of c2. That reading is so broad it would cover anyone that does something understanding that what they are doing is wrong in some way that in any way impedes, influences, or obstructs an official proceeding of any type. Mr. Grain. Not limited by federal. There is a good case that everyone knew the provision would be superfluous because it was meant to function as a backstop. It was a later enacted provision. Congress had all the statutes all over the place. It had just gone through enron. Enron convinced them that there were gaps in the statutes. They tried to fill the gaps that and they found out about one gap in enron and they said, this is a lesson to us. There are probably other gaps in the statutes but they didnt know exactly what the gaps were. So they said, let us have a backstop provision. And this is the backstop provision. Of course in that circumstance, superfluity is very often a good argument when it comes to statutory interpretation but it is not a good argument when congress specifically devises a backstop provision to fill gaps that might exist. They dont know exactly how they exist but they think that they probably do exist in a pre existing statutory scheme. Thats what this provision is intended to do. Respectfully, your honor. A close reading of yates both the majority and dissenting opinion demonstrate that the court thought that 1519 was the backstop. That was supposed to be the omnibus provision. The court was fighting over what the meaning of tangible object was in 1519 but that was meant to plug the hole. I have such a hard time with the super fluidity arguments because this entire obstruction section is super fluidity. There is not one provision you can point to. You just said it. You can point to 1512 and you have 1519 that says obstruction destruction of evidence. How are they different . They are really not. You can point to any series of any provision and point to super fluidity in this section. 1512 and otherwise. So we go back to Justice Kagans position which is, what you dont have is a freestanding otherwise obstruct, influence, or impede any official proceeding. I do not see why that is not the backstop congress would have intended and it is the language it used. It is an awfully odd place to put it. In a subsection of a subsection in the middle back of a statute to include that provision. There is nothing about, the one thing Justice Kagan pointed to which is clear they wanted to cover every base. They did not do that in a logical way but they managed to cover every base. I think you can reconcile, that is what the court said about 1519 in yates. I dont understand how the government can come before you and say we need another catchall, another omnibus that would sweep in all kinds of others. We did not get what we wanted so now we go to 1512 and see if we can expand that. A cover something it has never covered before. Justice thomas . Justice alito . Justice sotomayor . We have never had a situation before where there has been a situation like this with people attempting to stop a proceeding violently. I am not sure what a lack of history proves. Im not sure that is true. I would point to hatfield and courthouse problems in portland, oregon. Lets also look at what the court has said in so many different cases. In dubin, in yates, and kelly. Bond. All of these there was a difference there in the use of words. Here, otherwise obstructs, influences, impedes might have a problem with breadth and the government can address that, but it is on not unclear what the words mean. But the government has no way to address that. We can let them answer. Jusce kagan, Justice Kavanaugh. If it were just the language in c2, and so said whoever obstructs, influences and impedes c2 without the word otherwise, the whole provision, do you acknowledge the language would then be applied properly to a situation like this . Unfortunately no. The reason for that is that again, applying all the other canons and applying the whole text canon and zooming out and looking at 1512 we would submit that c2 should still be read in the way we have suggested that it be read as something that is an evidence impairment statute. I think also as i mentioned the latin canons all of those would still obtain if it is there by itself. Without the otherwise. The otherwise is the icing on the cake. Finally, Justice Kavanaugh i would mention as i did to just a Justice Barrett. If you did not have c1 and just head c2 without the otherwise. Not sure if i was clear on that. In that case i think it gets even harder. I would still say if we look at what 1512 is about and we look at the court cases on broad, implausible, or plausible but broad readings of criminal statutes not being with the court adopts when there is available narrow reading because congress can fix that, we would still say that c2 does not perform the massive dragnet function that the government submits. Thank you. Justice barrett . I have a question about the phrase in c1 to agree to do you agree that it is specific intent . What is your view of how that parenthetical applies if at all . Do you think that requirement the intent requirement carries over . The intent requirement . Corruptly . Not corruptly. With the intent to impair the integrity or availability for use in an official proceeding. Yes we do. It carries over. We would say that is the object of the overarching mens rea. How can that be. Seems like c2 would read oddly, it would be otherwise obstructs, influences or impedes any official proceeding with the intent to impair the integrity or availability for use in an official proceeding. That would be your position of how it would read . I think that is right. It is awkward, there is no doubt it is an awkward statue but if you do the operation i talked about earlier, which is we are just going to use otherwise to replace the verbs and nouns in c1, bennett it makes, the statute makes perfect sense. With respect to intent, your honor makes an excellent point which is that this intent is a specific form of intent that corruptly, which has been construed to be the mens rea up there, is not different at least on this reading is not different or on the accepted reading from the d. C. Circuit judge, is not different from specific intent. So corruptly is redundant . It seems like it is getting to be. That is true. Our submission is that corruptly could mean something different. So should proceeding. That is how you marry 1512 with 1519. Justice jackson. X i am still wondering if your theory about the provision might be too narrow in a sense because you have evidence going. What i am trying to work out in my mind is whether you would still have a decent argument if this 1512 language is read to prohibit the correct tampering corrupt tampering with things that are used to conduct an official proceeding with the intent of undermining the integrity of the thing or access to the thing and thereby obstructing the proceeding. Its not just evidence. Its an official proceeding. C1 is an example of the corrupt tampering with certain things. C2 broadens it out a bit. It is not just documents and records. What do you think about that . I think that is a correct reading, your honor. As 1512 f demonstrates, that 1512 f supports our position. The evidence need not be admissible or free of a privilege claim. What would that mean about the statute if it is not evidence . C2 has been applied and occasionally c1 has been applied in a nonevidentiary way. Yes. To things that could become evidence. An effort to shape somebodys grand jury testimony. Let me ask you about the question that the justice asked you before. You suggested that it has to be to the document. In other words, the activity has to be actually to the document. I do not know why that is the case under c2. Justice alito says that one of the commonalities could be the impairment of the objects into raggedy integrity or availability. Justice barrett posits that you have someone impairing the availability by doing something to prevent the object from getting to the proceeding. Why wouldnt that count under c2 . This is preventing congress from counting electoral votes. Lets say it is in an envelope going to the Vice President s desk and someone does something to impair or prevent that from happening. Why isnt that what c2 could cover . First, it is not affecting the integrity of the document. Availability is also in the statute. As i mentioned earlier, simply delaying the arrival of evidence to the court not delaying. Lets say the person steals the envelope. Then it gets harder. If you steal the envelope and rip it up, bed is not what happened here and not in the indictment but the balance in the vote count isnt in the indictment. We wouldnt have to decide that. We could send it back and clarify that that is what the statute means. I am trying to understand if you agree that thats what it could mean. I do not agree. Why not . The reason is, if you look at 1512 its about a direct fact or fact or in some sense, an indirect effect but in a limited way, on evidence that is to be used in a proceeding. So as to limit its availability. What im suggesting is in situ, if you are doing something to if you are doing something to limit the availability, why doesnt it count . We are limiting the availability of its use by a factfinder in a proceeding. That is what the way to marry 1519 which covers all kinds of investigations and all kinds of other events with 1512. 1512 is talking about evidence that is going to a formal convocation. Im kind of hearing before the congress or before any other body. Thank you. Thank you, counsel. General. Mr. Chief justice and may it please the court. On january 6, 2021, a violent mob stormed the u. S. Capital and disrupted the peaceful transmission of power. Transition of power. Many crimes occurred 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 the obstructed congresss work in that proceeding. The government charged petitioner with violating 1512 c2. The cases that come to this court present a straightforward question of statutory interpretation. Did petitioner obstruct, influence, or impede a joint session of congress . The answer is equally straightforward. Yes. He obstructed that proceeding. The terms of the statute unambiguously encompasses conduct. Petitioner does not really argue that his actions fall outside the plain meaning of what it is to obstruct. Instead he asks the court to impose an a textual limit on the actus reus, because in his view c1 covers tampering with documents and other physical evidence. The separate prohibition in 1512 c2 should be limited to acts of evidence impairment. That limit has no basis in the text or tools of construction. His reading hinges on the word otherwise, but that word means in a different manner, not in the same manner. The prohibitions in section 1512 c2 are not unified items on the list where you could apply associated words cannon. They are separate provisions. They have their own sets of verbs and nouns. They prohibit attempts which would be duplication that makes no sense on petitioners reading. Congress included a distinct mental state requirement in c1 that it chose not to repeat in situ. Section 1512 c2 is not limited to evidence impairment. Instead it is a classic catchall. C1 cover specified acts in an that obstruct an official proceeding and c2 covers all other acts that obstruct an official proceeding in a different manner. The court should say so and allow the case to proceed to trial. I welcome the courts questions. There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past and has this been the governments position throughout the lifespan of the statute . It has certainly been the governments position since the enactment of 1512 c2 that it covers myriad form of obstructing an official proceeding and is not limited to some kind of evidence impairment. Have you enforced it in that manner . We have enforced it in a variety of prosecutions. That do not focus on evidence tampering. I cannot give you an example of enforcing it an example where people have violently stormed to building specified other than the current with all of the elements like intent to obstruct, knowledge of the proceeding, having the corruptly mens real but thats because im not aware of that circumstance ever happening prior to january 6. Just to give you a flavor where we have prosecuted under this provision, for example there are situations where we brought c2 charges because somebody tipped off the subject of an investigation to the hearings. There was another case where somebody tipped off about the identity of an undercover Law Enforcement officer. In those situations there is no specific evidence, no concrete testimony or physical evidence that the conduct is interfering with. Instead it is more general obstruction of the proceeding. Justice alito mentioned a case as well that was a forged court order. It prompted the litigant to dismiss the petition but that did not have anything to do with the evidence that was going to be considered. So what role does c1 play in the analysis . We understand it to split up the world of obstructed conduct of an official proceeding. Into the c1 events and into c2. C1 covers everything and enumerates. Its the acts of altering, concealing, destroying records, documents or other objects. C2 would only pick up conduct that obstructs an official proceeding in a different way. There is no duplication or super fluidity in our meeting. Congress was to fighting this up dividing this into two separate offenses. That is actually a virtue of our reading as compared to petitioners because of not hurt i have not heard him articulate anything that would fall within c1 that would on wouldnt also come within c2. In the way you are reading it, c1 and c2 almost exist in isolation. Certainly not affected by c1. We dont deny it all that there is a relationship. The relationship is the one congress specified in the text. It follows the word otherwise. That is the relevant degree of similarity. C1 and c2 have in common that they are aimed at conduct that obstructs an official proceeding. C1 does a oneway tampering with records and documents. C2 does so with respect to other conduct. But in a different manner. This has to be the road the court goes down to look at what Congress Actually prescribed in because in contrast if you take the petitioner invitation to come up with some a textual loss from c1 to pour over into c2 i dont understand that the what the court could look out to guarded the determination on what the relevant similarity would be. Im sure you have had a chance to read our opinion friday. It was unanimous and very short. It explained how to apply the doctrine of used and generous. What it said is that specific terms a more general catchall term at the end. It said that the general phrase is controlled and defined by reference to the terms they have that precede it. The otherwise phrase is more general and the terms that precede it are alters, destroys, mutilates, or conceals a record and document. Applying the doctrine as we set forth in that opinion the specific terms alters, destroy, mutilate, Carry Forward into two and the terms record document and other object carryforward as well. It seems to me that they sort of control and defined the more general term. Mr. Chief justice, sorry to interrupt. The otherwise means in other ways. Alters, destroys and mutilates a record, document or other job object to impede the investigation or in other ways accomplishes the same result. I think the problem with that approach with respect to 1512 is that it does not look like the typical statutory phrase that consists of a parallel list of nouns or parallel list of verbs where the court has applied and used in generous for the canon. These are separate prohibitions that have their own complex nonparallel internal structure. I think actually, the best evidence that is hard to figure out how would you define the similarity between them is that based on the word otherwise is that there are multiple interpretations in this case. Justice alito reflected on them in the competing interpretations between judge katzs and judge nichols. Competing interpretations of what . That relates to the question you have asked me which is that judge nichols thought that c1 should limit c2. He said the relevant thing about c1 is a deals with records, documents and other objects that means c2 should be limited only to other acts that impair physical evidence. Judge katzmann had looked at the requirement that takes actions that impairs the ability or use of evidence and he defined a broader gloss. They are applying the same doctrine of different aspects of it. I think you do that as well. Alters, destroys and mutilates are the common elements. What if you are doing and what you are doing it too. You apply both of those as it is said, controlling and defining. It should involve something that is capable of alteration, destruction and mutilation. With respect to the record or document. I dont even understand when you apply that doctrine as we did on friday, it responds to some of the concerns that have been raised about how broad c2 is. You cant just tack it on and say look at it as if it is standing alone. Because it does not. Let me respond to that in two ways. I wanted chance to address any concerns. The more fundamental point is that i dont even understand petitioner to be suggesting you can mix and match the verbs and nouns from c1 and c2 in this way. Judge nichols had a more limited view that c2 exclusively focuses on physical objects and would not apply to things like testimony because of the limitation. Judge katz may be in line with your question but interpret that more broadly. The basic point of the textual matter is that there is nothing in the text of c2 to disclose what the relevant similarity c1 ought to be. I think the relevant similarity is obstruction of an official proceeding because that is the language congress chose. If that is the case, what work does otherwise due on your theory . Because i think, as im hearing you, i might think that whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so stands alone. The otherwise, i am not hearing what work it does. And you explain . The work that otherwise does is to set up the relationship between c1 and c2 and make clear that c2 does not cover the conduct encompassed by c1. I acknowledge that beyond that. Beyond saying that ok, c1 does some things and the whole rest of the universe obstructing and impeding or influencing is conducted by c2. Is that a fair summary . Yes. But there was a good reason for congress to do it this way. I understand that. Statutory history. If i might, what does that mean for the breadth of this statute . Would a sitin that disrupts a trial or access to a federal courthouse qualify . Would a heckler in todays audience qualify, or at the state of the Union Address . Would pulling a firearm before a vote qualify . For 20 years in federal prison . There are multiple elements of the statute that may not be satisfied by those hypotheticals. It relates to the point i was trying to make to the chief justice about the breadth of the statute. The builtin limitations are the things i think would potentially suggest many of those things wouldnt be something the government could charge are approved as 1512 c2 beyond a reasonable doubt would include the fact that the actus reus does not include require obstruction which we understand to be meaningful interference. That means if you have some minor disruption or delay or minimal outburst so outburst requires the court to reconvene after the proceeding has been brought back into line, or the pulling of the fire alarm, the vote has to be rescheduled or the protest outside of the courthouse makes it inaccessible for a period of time. Are those all federal felonies subject to 20 years in prison . With some of them it would be necessary to show nexus with respect to the protest outside. You would have to show they were trying to stop the proceeding. We would also have to be able to prove they acted corruptly. That sets a stringent mens rea. This is not even just the mere attempt to disrupt. We have to show they had corrupt intent acting in that way. We went around that tree yesterday. I know. I heard the argument yesterday. What i would say is the extent that the hypotheticals are pressing on the idea of a peaceful protest, even one that is disruptive, it is not clear the government would be able to show that each of the a mostly peaceful protest that actually obstructs and impedes an official proceeding for an indefinite period would not be covered . Not necessarily. We would just have to have evidence of intent. They intend to do it all right. If they intend to obstruct and knew it was wrongful conduct then yes. What is corruptly in your view . It adds the requirement of the defendants conduct being wrongful and committed with consciousness of wrongdoing. This relates to where the court said this is a term with the deep historical roots and a subtle meeting, connoting not just knowledge of your actions which is the attendant intent to obstruct but requires it be done corruptly. Just to give you a more concrete example of how this has played out in the january 6 prosecutions, i would point to the jury obstruction in the robertson case which we refer to in the brief, the jury was instructed that in order to show that the defendant acted corruptly they had to conclude that he had an unlawful purpose or used unlawful means or both and had consciousness of wrongdoing. I think that is an encapsulation of what the jury is asked to decide on top of obstruct. Let me give you a specific example which picks up a little bit more detail with respect to one of the examples thatthe that Justice Gorsuch provided. We had a number of protests in the courtroom. Lets say that today, while you are arguing or mr. Green is arguing that five people get up one after another and they shout either keep the january 6 insurrectionists in jail or free the patriots. And as a result Police Officers have to remove them forcibly from the courtroom. Lets say it delays the proceeding for five minutes. I do know that experienced advocates like you and mr. Green wont be flustered like by that but in another case, an advocate might lose his or her train of thought and not provide the best argument. Would that be a violation of 1512 c2 . I think it would be difficult for the government to prove that. At the outset we dont think 1512 c2 picks up minimal de minimis minor appearances but it denotes a meaningful interference with the proceeding. It doesnt say, i am sorry. C2 doesnt refer just to obstruct and it says obstructs , influences or impedes, and impedes is something less than obstruct. I think this is a verb phrase where iteration was afoot. Ok. The plain meaning, you are preaching the plain meaning interpretation of this provision and the plain meaning of impede in websters is to interfere with or get in the way with of the progress of or to hold up and in the oed it is to retire retard in progress or action by putting obstacles in the way. It doesnt require obstruction. It requires requires the causing of delay. Again, why wouldnt that fall and you could say well we wont prosecute that. Indeed from all the protests that have occurred in this court, the Justice Department has not charged any serious offenses. I dont think any one of those protesters has been sentenced to even one day in prison. But why isnt that a violation of 1512 c2 . We read the actos nereus actus reus more narrowly. Maybe you can look at the broader definitions and adopt a broader understanding but there would still be the back step of needing to prove corrupt intent. It is not corrupt intent. Its wrongful and do you think it isnt wrongful . I could imagine defendants in that scenario suggesting they thought they had some protected free speech right to protest or they were not conscious of the fact the one about to make that they werent allowed to make that brief protest and i think it is a fundamentally different posture than if they have stormed into the courtroom and overrun the Supreme Court police and required the justices and other participants to flee for their safety and did so with clear intent. Absolutely. What happened is very serious and i am not equating that with that. We need to find out what the outer reaches of the statute under your interpretation are and let me give you another example. Yesterday protesters blocked the Golden Gate Bridge and disrupted traffic in san francisco. What if something similar like that happened around the capital so members come all the bridges from virginia were blocked and members from virginia who needed to appear at a hearing couldnt get there, or were delayed in getting there. Would that be a violation of this provision . It sounds to me like it wouldnt satisfy the proceeding element or nexus requirement. Why not . Lets say they want to get to the capital to vote. If we had clear evidence that the purpose of the protesters who set up the blockage somewhere for some distance away from the court because they had a specific proceeding in mind, but maybe you have the proceeding but the Court Required an excess and that is a requirement in other cases like Arthur Anderson where the court said it does real narrowing work because you have to show the natural and probable effect of the action has to be obstructed has to be obstruct. There has to be a relationship and time causation and logic but the other thing i would say is that there are other obstruction provisions including in 1503 and 1505 the tax statute that uses exact same formulation of the court characterized as an omnibus clause and never suggested to be subject to an evidence gloss. So there are concerns about hypotheticals but your question about what would happen in this courtroom would be covered by 1503. M turpin this narrowly isnt going to cure that. Let me give you one more example. An attorney is sanctioned under rule 11 of the federal rules of civil procedure by filing pleadings, written motions, or other papers for the purpose of causing unnecessary delay or needlessly increasing the cost of litigation. And in a particular case the judge imposes rule 11 sanctions and says this caused a lot of trouble and i can tell you it caused at least workdays for me five personally, all of this unnecessary paper. It delayed the progress of this litigation so i imposing rule 11 am sanctions and why doesnt that fall into your interpretation of the provision . Congress created a safe harbor and its reprinted in the appendix of our brief that specifies advocacy legal representation conducted as part of the proceeding shouldnt be understood as obstruction so congress trying to draw lines around participation in a proceeding versus external forces that obstruct a precision it falls within the language, does not it . What kind of evidence do you typically present in these january 6 cases to prove the corruptly element . The january 6 prosecutions require us to show first that the defendants had knowledge that congress was meeting in the joint session on that day. We have to show the defendant specifically intended to disrupt the joint proceeding and with respect to using unlawful means with consciousness of wrongdoing, we focused on things like the defendants threat of violence and willingness to use violence here. And we allege that they assaulted a Police Officer are and we focused on preparation for violence, bringing Tactical Gear or paramilitary equipment to the capital. I want to emphasize that this is a stringent mens rea requirement that has constrained the u. S. Attorneys office. We charged 1350 defendants in with crimes committed on january 6 but only had the evidence of intent to bring charges against 350. How do you decide which defendants get charged under this statute as opposed to not . The dividing line has hinged on the evidence we have of intent so we are looking for clear evidence that the defendant knew about the proceedings happening in the joint session in congress that day and clear knowledge of the official proceeding. We look for evidence that they specifically intended to prevent congress from certifying the vote and used his actions to obstruct that and also as i mentioned, the knowledge of wrongfulness or unlawful contact conduct could come about with respect to preparations the defendants made. There are cases where even though we thought we had the evidence beyond a reasonable doubt, there have been acquittals because there was testimony credited that the defendant not the proceedings thought the proceedings were over and didnt intend to obstruct or one person thought and said he thought Law Enforcement was inviting him in and even in situations where we think we have enough evidence, we havent been able to sustain conviction because of the stringent mens rea. Can i ask you about your obstruction theory . You said you see 1512 c as dividing the world of obstruction and the nexus between 1 and 2 is the official proceeding and the obstruction of an official proceeding. I guess what im concerned about is how you account for the rest of 1512 where official proceeding comes up over and over again and particular acts that one could view as obstruct obstructing an official proceeding, like killing or threatening or intimidating witnesses is covered. If we read c2 to be obstructing an official proceeding, i dont understand what happens to the rest of those provisions. To the extent you were pressing on the idea that there is a surplus, i dont think its true. There is overlap or duplication and thats true on both readings in this case. In part it may even be more true on petitioners reading because he says c2 is likewise focused on ways to obstruct, interfering with testimony and documents. So that same duplication will be present in his reading but with respect to superfluity our interpretation doesnt create technical superfluity because each of those provisions you cited covers situations that 1512 c2 wouldnt cover and there are three distinctions. Some of them have less than a corruptly mens rea and it could be violated in a way that wouldnt require the government to prove corruptly and it may mean we can charge particular applications of those provisions under them and not c2. The second is that some sweep more broadly in a wider range of circumstances so that lets us charge in those situations where we cant prove the official proceeding element and then third and finally some of them have a higher penalty specifically because they target more culpable conduct like the 1512a, the one you referenced about killing a witness and there the government would charge under that provision because it subject to higher penalties than c2. With the government necessarily lose in the sense they wouldnt be able to bring charges against some of the people that you have described with Justice Kagan if we looked at c2 as being more limited and perhaps not all the way to evidence, but related to conduct that prevents and obstructs an official proceeding insofar as its directed to preventing preventing access to information or documents or records or things the official proceeding with use. I explored with mr. Green the idea that to the extent that there were people who knew the votes were being counted that they and that is done in a documentary way in our system, they are interfering by storm in the capital might qualify as a document interpretation. Quickly he would likely be viable charges. In the last of our brief, we preserved an argument that we could satisfy even an evidence related understanding in part because of the conduct being able to be able to survive the results of the election. We obviously need to evaluate whether these charges can move forward based on whatever these court said. Those that came to the capital and engaged in this criminal conduct from where it had to be counted acted as intent the District Court had a different variation from the statute and how to read it. He started to explain that to the chief. Could you do it if you accepted the District Court view . I presume you could do it if we accepted below. What is your whole response to Justice Jackson . Justice jackson assumes that the. I thought Justice Jackson would propose an even broader view including focusing on the availability part. That could qualify. I think it becomes potentially harder on the judges view and especially hard on the judge nichols view. That is because judge nichols seems to think it had to be limited to taking action with respect to the documents themselves and that would be a difficult standard for us. It is clear you and Dorothy Robinson view. Could you tell me what you feel about the walker view and doug walker being part of the majority board . Yes. Judge walker declared an idea has to turn exclusively on the government being able to show the ability to secure an unlawful advantage for himself. We agree that is one way for the government to prove corrupt intent. It is the way it has traditionally been deployed in the tax conduct context. I think it would be incorrect to suggest that was done incorrectly. There are various other ways we might have evidence as we think we do here, unlawful means committed within the consciousness of wrongdoing and there is no weakness within the commonwealth. Also limit the government availability to prove it with that one specific way does walker redo it. It appears to be the fear that reading the governments view of yesterdays case today would make it so broad that somehow that presents a problem. That gets addressed in the word correctly. But neither of those two issues were resolved because that wasnt the question. That is right. The only issue that gets resolved with the meaning of the act. Quick the only issue between us is whether we read the words how we read these words. That is right but i dont want to lose sight of the fact that there are inherent constraints built into the other elements of the statute. The nexus constraint is a really critical one. It is that constraint that the court has what to do to make sure that they dont speak too broadly about every deck conduct that might be coming out of the world. It is all with the official proceedings and we think that some very high bars are set by the fact that it is sent to Justice Kagan. Thank you. Are you putting a balance requirement . It seems like you kept emphasizing the aspect of violence that was present on january 6. Am i understanding you . We think that is a requirement. I think it will clearly be easier for us to satisfy when we went action youre like assaulting a Police Officer or unlawful conduct. What i was trying to say is in situations where hypotheticals impress upon the idea that people are engaging in conduct, they might be wrong about that. There might not be a First Amendment right they think they have. That would mean we could improve and proven obstruction charge. Quick thank you. I am not quiet sure i understood the answer you gave earlier about whether or not youve previously used c2 in this type of case. Have you done that before were not . Course we have charged the situation that is not involved this evidence. It covers a myriad of ways of instructing. I am not aware of any other factual circumstance around the world where we could have proof on the elements beyond the case of where we brought this prosecution. Quick to so i understand, the prosecutions are eliminated in what way . They are for things that people had in mind for official proceedings. If it is for protesting a branch of government outside this court. And also to show an intent to obstruct the proceedings and the nexus to the proceeding and that can take care of situations where maybe someone could do this in a different building. In prior cases you have applied c2 should the situation. Not involving specific documents question mark . Things like the identity of an undercover officer or creating if the court order that had nothing to do with the evidence in the case but is just prompting the litigant to discuss this. Your friend points to an office of legal counsel. 2019. I havent looked at it yet. It is consistent with the judges opinion judges opinion below. Request that was never adopted as a formal position of the department of justice that arose out of the special counsel investigation and those that involved the office of the presidency. It is suggested that maybe it could be understood more narrowly it did not represent any formal adoption of deposition. What constitutes a formal acceptance of policy opinions as you probably know the answer to that one. What i can tell you is the reason i am saying that is it it covers the full range of obstructive conduct. It ultimately just post on the issue. Thank you. Grace you said as i understand it that you have applied c2 in previous cases. That is right. We applied in new cases that do not affect the model here. It is the on the bus causes of 15 at three, 1505, 70 12. These are statues that use the exact same. That is fine. C2. The specific instances that you have used c2, you seem to think argue that c2 is a standalone provision. We think it covers the full range of obstructive conduct limited by the requirement. If you have applied c2, had there been other Previous Court of appeal . Yes. And the uniform consensus among the court of appeals has been that c2 is not limited by this kind of evidence impairment. There has been no court of appeals that has gone the other way despite what has been recognized looking at the plain language of this provision. Much of your argument seems to hinge on this being fairly clear. Your interpretation of c2. Yes. We think we have the best of the plaintext. If i happen to think it is more ambiguous, what would your argument be . What i would say is i think if you look at the terms and the statute themselves, the plain language of the statute supports our view but it doesnt end there and i have mentioned several times the other provisions of 1503, 1505. But we think that has been really relevant. Congress has been writing on a blank slate. It is not like it just that was taken out of the ether. That was a wellestablished term for instruction law. When Congress Takes a phrase like that, it brings soil with it. Congress has clearly not this court and the records have interpreted those other statutes to encompass the full range of obstructive conduct. That is consistent with our president i mentioned to you earlier. I think when you put it altogether, there is no real ended with here. We clearly have the best meeting. The icing on the cake is that if congress wanted to write a statute that focused only on evidence, there was a clear and obvious way to do it. Congress could have just tacked on a residual that said it otherwise impaired evidence. It would not have used the term that had a wellsettled meeting more broadly to try to convey that type of limited scope. It would be nonsensical for congress to draft that way because it would be so readily misunderstood. Every lower court has understood congress to legislate more broadly here. There is a contextual argument that you seem to issue in this case. I think the statutory context context it does bear weight here. We think the roots of this language in this other of social provision fortifies how the court has always understood the plain language. You are do that there is an exception that only has a minimal effect on official proceedings. Where does that come from the text . That comes from the verb phrase obstruct, influence or impede. That talks about blocking, hindering, persistently interfering with. The verbs themselves we think inherently contain this limitation. There cant be a minor impediment . As a globally matter, maybe but we think if you look at what congress has been trying to do as a whole, the lead term here is obstruct. I think that adequately conveys an idea that this does not qualify. How would you define a minimal interference . I suppose the jury would have to be charged on that in order to prove the person violated this provision. You must find a person intended to cause more than a minimal interference. How would you define it . If this came up, i think it is possible the court to decide as a matter of law. Maybe there could be great areas gray areas about the nature of the obstruction. What about the example i gave dee about the example of the five protesters in the courtroom . Is that minimal . It sounds minimal to me and it sounds like it if it hasnt forced any help to the proceedings it wouldnt pick up but the same issue would arise which likewise refers to impede. Show less text quest let me just ask you a question about that. Suppose someone commits conduct that falls squarely within 1512. You have a square, a clear violation of 15 12 d punishable by mode no more than three years in prison. When congress added 1512 c2 which does that you can find is person for up to 20 years. There is a key difference between 50 and 12 b and 15 12 c. This is to prevent the testimony but i think there are certain factual scenarios. I do want to be first responsive to the broader term. No matter which statutes the government charges under with respect to all of the relevant obstruction statutes, they would be funneled through the same sentencing guideline so it wouldnt make a difference with respect to sentencing and the concern you have with the hypothetical arises on petitioners reading because everything covered in 1512 d falls within impairment limitations so the existence of a maximum there is no minimum should drive intuitions about how to interpret this provision. I am not sure thats the correct interpretation of 1512 d and how about be and it is consumed by the other. I think there is an overlap between the two and i dont deny that and it would be true in either reading because one is witness tampering and even on petitioners understanding of the statute there would be equal duplication. There is no actual superfluity because there are ways of violating 1512 b which falls within our understanding of 1512 c 2 including acting in a misleading manner which would satisfy a corrupt intent definition. Really . You think you could corruptly lead someone . I dont understand. My recollection is there are multiple means of carrying out that offense and threat being more corruptly that was what i referred to earlier but another way could be through intentionally misleading sobody that wouldnt necessarily require corrupt intent. Thank you. One more question. I was struck by the contrast that the court should read in a minimal exception with the argument that you made earlier this term and muldrow versus the city of st. Louis where the question was whether an adverse employment action had to be significant or not and you said it doesnt have to be significant because the text like white admits no distinct which that results in a significant or insignificant disadvantage so you told us that applies throughout all the various legal statutes that are out there, not anything like that. We ground this in a particular understanding of what it means to obstruct and what the work conveys. I know that case because i decided it but the tip cases, are they in your briefs . We cite the case where a grand jury was tipped off about the existence of an investigation but there was no Material Impact are clear evidence of impairment of the evidence or availability of testimony or physical documents. There are a number of cases including and i dont think we cited but it includes disclosing the identity of an undercover officer. Show less text where do i find those . We would have to supply additional citations and i believe they cited a range of cases and made clear they didnt cover evidence impairment. Thank you. Mr. Graham referred to 1519 and said that is supposed to be the catchall provision and why are you asking about 1512 did you the same thing that 1519 will do. That is a question i have for you and the other question is you refer a number of times to other provisions. 1503, 1505 and 7212. If we go down mr. Greens road in terms of other limits from other places in this statute, or any of those likely to be challenged in the same kind of way, or are they written sufficiently differently so we wouldnt have to worry about that. I dont think the idea is that 1519 was the blood catchall. They could not in any way be squared with what they said. Instead, i think that the example to draw from or the example to learn is that congress is plugging the specific goal in the enron scandal. This is where the court was sensibly locate this broader provision. With respect to the question about the other statutes i would be concerned about that. The language, the verb phrase is on a different order sometimes. The relevant verbs would be similar. There are direct objects there. In 1505, it is the administration of the congress. It is not clear to me whether defendants missy to try to artificially limit those causes beyond two terms even though these kinds of provisions had been in the instructional and they had never been understood. Quest the keyword and that is otherwise. And trying to figure out what that means under our established printables statutory interpretation. They accepted and the other so i and let used the broad phrase of catchall. That can be squared with what that says or how this court interpreted it but instead i do think that the example or lesson to learn is that this court the court has said many times it is a natural way for congress to create a broad catchall category. I dont dispute their could be situations where you have a parallel list of nouns or a parallel list of words but that is not how 1512 is structured. It has a complex internal structure. And it has the mens rea requirement unique to 1512 c 1 and congress didnt transplant that into 1512 c 2 s that means with they use disparate language into provisions it usually means something. It isnt the kind of situation where the court can sensibly apply this and the other thing i would say is if the court goes down the road of trying to glean a requirement from c 1 the other reason the canon is inapplicable its not evident on its face with the common attribute would be. As you know, that is true in almost every use and the treatise explains that as well. It is hard to know what the common phrase is. That point i dont think distinguishes that case. You can respond to that. Quest i think a plain speaker of english would recognize the connective tissue is the language otherwise. That is the congressionally improved salon improved similarity. The statute itself was relatively different. It was the kind of statute that might apply. What about the contextual points that have come up . I just want to make sure you have a chance to respond. It would be in our provision tucked in connected by the word otherwise. And within the placement and the statute is odd at all. One is the point of trying to make to Justice Kagan about this. This is the statute and generally at visual proceedings. And that was like 1519 or the ones that come right before that a more narrowly confined and intended to reflect these circumstances. That does not describe 1512 at all. They are trying to broadly private obstruction. Then they say congress. In the middle of the statute. 1512 the has a much more minimal penalty. This is the most serious of instructionally killing a witness punishable by three years or up to life. Quest the last question, there are six other counts of the camera here. This includes civil disorder. Contact with the victim entering and remaining in a restrictive building and disorderly and destructive conduct in the capitol building. Why are those discounts good enough from a Justice Department perspective . Why dont they have any other hurdles . Those cows dont fully reflect this on january 6. Those cows do not require that petitioner acted and obviously the petitioner committed other crimes that we are seeking to hold them accountable for. One of the root problems with petitioners conduct is he knew about that proceeding. He said he was prepared to storm the capital, prepared to use violence. He wanted to intimidate congress. He said they cant dont if they cant breathe. He went to the capital on january 6 with that intent in mind and took action including assaulting a Law Enforcement officer. That did impede the ability of the officers to regain control of the capital. It is entirely appropriate for the government. Quest the statutory maximum is higher but after a recent decision on the d. C. Circuit judge which helped with a particular sentencing enhancement, that is the broad case i believe the sentencing range, the guidelines range would actually be higher guidelines range. Someone who does not have a prior criminal history. This is the range that would yield. We have looked at the average sentences here. I think that is the best way to gauge it. This is when the sentencing enhancement didnt apply. All of this is 26 months of imprisonment. There is no reasonable argument to be made of the statutory maximum here. Thank you. I want to ask a clarifying question about the government charging decision between c1 and c2. What could you charge . C1 has this additional requirement. It obstructs influences, etc. It would accomplish things like being late, is henry. I thought i heard you say. I just want to clarify earlier in the argument that government could not charge the alteration mutilation concealing a document or physical object under c2. Quest that is correct. We usually charge the specific paragraph. We would charge it under c1 and that would be need to look the charge. Quest is that charging . Do you think the statute would permit you to charge it under c2 by escaping the specific intent requirement . It is the intent to obstruct the official proceedings. This is pressing with a difficult question about means versus development. These are different elements because they have these different requirements. The each independent private attempts. It is a hard question bentley. I think we could usually say that was harmless for recharge under the corrected paragraph. What if on january 6 the capital itself had not been breached and the protest is going on outside the capital, stop the steel, stop the steel and police are in megaphones dispersed disperse and they are too close to the capital and their goal is to impair and impede and stop the proceeding and stop the counting of votes. Does that violate the statute in your view under this impede language . I think one relevant question would be whether we satisfy the nexus requirement and show the natural and probable effect of that conduct would have some of that of what is going on. Show you can. Yes so if you assume Congress Went into recess and couldnt hold the joint session after all because there was a risk, i think that probably could be chargeable if we had the intent evidence. With respect to the riot that happened, which was more serious, we dont have that intent for everyone. But if we had organizers were it was clear that they were the ring leaders who had intended to obstruct and undertook the action with that intent and did so knowing it was wrongful, and if they went and i assume they are in the unauthorized area outside of the capital, thats unlawful conduct committed with consciousness of wrongdoing if we have proof of it. Lets say i am having a hard time accepting this to have the extra verb element. Tell me why i shouldnt be concerned about the breath of government. If you dont have to agree with that. If you thought this was unqualified, there would still be really important limits in the statute. Obviously we would have to have the official proceeding. But i think the next requirement could be somewhat hard to establish in a circumstance. You have to show that the defendants knew the natural and probable effect would do that. As you mentioned, even as you show all of that, it really did that would only be the backstop. Do you think it is lawful that congress would have written a statute that broadly . I think Justice Alitos example of a Protestant Department lets say it is corrupt and it impede the proceeding because we have to go off the bench. Lets say i think that is in coverage. Is it possible to think congress wrote a statute that would sweep that in question mark at think there are a lot of legitimate ways but one of the ways you cannot do it is to come into the courtroom, forced the justices to lead the bench. That is a severe intrusion on the enforcing of our government. There is no mandatory minimum. Sentencing cores would use their discretion to tailor the actual method. Chris you emphasized several times that congress wasnt writing on a blank slate. But do you dispute that it was ready against the backdrop of a real world context . It was in the wake of enron, it was documented destruction and there was nothing as far as i can tell that is adjusted congress was thinking about obstruction more generally. They had this particular problem and it was destruction of information that could now have otherwise been used in a official proceeding. So you just give us a little bit more as to why we shouldnt think of this as being a narrower set of circumstances to which this text relates sure. We have course acknowledge immediate test for adding 1512 the statute was to close the loophole of enron and it was a glaring one in the obstruction laws but not a crime for you personally to destroy the document and the government had a charge people persuading other people to do that. And that was front of mind for congress and they wanted to and did address it with c 1 in 1519 separately and the best way to look at what they were doing in light of that was to consider the fact that Congress Went further and enacted c 2 and the broader lesson they took was when you set out in advance to enumerate the ways the official proceedings could be obstructed things would slip through the crack. Was c 2 enacted at the same time as c 1 . Yes. Why couldnt the broadening relate to other ways and which one may prevent a proceeding from accessing information . One is documents, records, and other objects and the known unknown, we dont and no no. Could it be tangible that when one gets at physical objects . I guess i am struggling with leaping from what is happening in c 1 in the context in which it was enacted to all of obstruction in any form. I think the reason why we would suggest it needed that narrower reading was because of the actual language that congress used and if it was worried about other kinds of record based proceeding based evidencebased ways of obstructing, they were easy templates to add that in as a residual clause to see there was no need to have this number to prohibition separate or use the verb phrase obstructs, influences or impedes which was drawn from these other omnibus clauses. We think it is consistent that after enron what congress thought we dont want this to not be a crime and we want to cover this with the backstop of this in the limitation to an official proceeding. Click thank you, counsel. Mr. Green justice sotomayor, the defendant who tips off a grand jury witness or the target of a search warrant is someone who is certainly attempting to impair the integrity or in availability of evidence. Just as somebody who creates a document in the net document is shown to counsel and counsel withdraws the petition and has in fact created something that has interfered with an official proceeding. I heard my friend say twice in response to your questions that seek to cover peaceful protest. So long as his government could demonstrate there was adequate mens rea and annexes. Lets look at what 1512 as their 1512 f test. An official proceeding need not be pending or be instituted at the time of the offense. There is no nexus. Congress has written it out of the statute right there. Mens rea is a break only works at trial. This is the motion to dismiss the stage. I think that is exactly right. It is a break on a go kart. What it means is people like mr. Fisher have to say and go to trial and seek to win on a rule 29 motion because the government has improved their mens rea. The same is true for First Amendment. Other statutes within and a number of the justices pointed out there are much lower penalties for significant crimes. I would point to 1752 which is civil disobedience and restricted space. That is what mr. Fisher is charged with. That is a misdemeanor. If you caused substantial bodily injury, that is a 10 year maximum penalty. The government wants to release a 20 year excellent penalty. Even if they are peaceful. Finally, we have not touched very much on the breath of influence. That would not only be peaceful protest, it would be advocacy, it could be all kinds of lobbying. Those things would be covered as well. I would say to the court, let us not forget that civil proceedings are covered here. The government is suggesting the court should unleash a 20 year obstruction statute on civil litigation in federal courts. I submit that is if we would submit that that is a very serious tool to put in the hands of prosecutors. We urge that the court reverse the d. C. Circuit judge. Thank, counsel. The case is submitted. More than 3200 students from