An argument mounted by many of the January 6 defendants gets a boost in district court — but the government is likely to prevail on appeal.
An argument mounted by many of the January 6 defendants gets a boost in district court — but the government is likely to prevail on appeal.
E arlier this week, a federal jury in Washington, D.C., took under four hours to convict the first Capitol-riot defendant to go to trial.
Guy Wesley Reffitt was found guilty of obstructing a congressional proceeding, in addition to several other charges, including possession of a dangerous weapon — a semi-automatic handgun — in the course of breaching the Capitol grounds (which is a restricted area under federal law). The evidence against Reffitt, a 41-year-old Texan, was overwhelming. The only real drama in the trial, which lasted just a week, stemmed from the testimony of Reffitt’s 19-year-old son, who sent a tip to the FBI in December 2020 upon becoming alarmed by his ardently pro-Trump father’s belligerence and plans travel to Washington to oppose “tyranny” on January 6, 2021. The FBI, however, took no action against the elder Reffitt until after that day’s Capitol riot, when it began aggressively tracking down those who had participated.
There would not be much more to say about Reffitt’s case except that, nearly simultaneously with the jury’s verdict, a judge in a different Capitol-riot case threw out the main obstruction charge on which the Justice Department is relying in these prosecutions — indeed, the main charge on which Reffitt was found guilty.
In the prosecution of alleged rioter Garrett Miller, Judge Carl Nichols, a Trump appointee, issued a 29-page opinion holding that the obstruction charge, brought under Section 1512(c)(2) of the federal penal code, is unconstitutionally vague. The ruling parts company with the weight of decisions on this point, which has been raised by numerous January 6 defendants and rejected by several of Judge Nichols’s colleagues on the D.C. district-court bench — most comprehensively by Judge Amit Mehta, an Obama appointee, in United States v. Caldwell. I briefly discussed Judge Mehta’s opinion in a recent column, which posited that the obstruction charge is sound, in contrast to the dubious seditious-conspiracy charge prosecutors have lodged in some other Capitol-riot cases.
In my view, Judge Nichols’s ruling is meritless. The supposed vagueness is essentially ambiguity that he has created, not detected, in the obstruction statute.
That statute originally targeted witness tampering. The Justice Department has invoked it in Capitol-riot cases to charge obstruction of a congressional proceeding — namely, the January 6 joint session of Congress, at which state-certified Electoral Votes were ultimately counted and Joe Biden’s victory in the presidential election was officially acknowledged. But despite the claims of several Capitol-riot defendants that Section 1512 applies only to judicial proceedings, there is no doubt that congressional proceedings are within its ambit. That’s because the statute has been amended over the years to broaden its application. Several judges have ruled that it now covers congressional proceedings, and Judge Nichols agrees with them on that point.
The matter in dispute is: What precise kinds of obstructive behavior does it now cover?
At issue is the statute’s subsection (c), which was added by the 2002 Sarbanes–Oxley Act. The amendment was prompted by a gap in obstruction law that became apparent in the Enron scandal: Enron’s outside auditor, Arthur Anderson LLP, had carried out massive document shredding, but as it was written at the time, the law applied only to a defendant who corruptly induced another person to shred documents, not to a defendant who shredded documents himself.
Consequently, Congress added Section 1512(c), subsections (1) and (2) of which subject to a potential 20-year prison term anyone who:
(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[.] [Emphasis added.]
I have italicized subsection (2) because it is the provision the Justice Department has invoked to charge the Capitol rioters with obstructing a congressional proceeding.
The lodestar of statutory construction is the text itself. Far from being vague or ambiguous, this law seems to me to be about as straightforward as it gets. Subsection (1) enumerates varieties of obstructive conduct that undermine an official proceeding through the spoliation of documents or other physical objects. Expanding upon that purpose to protect the integrity of official proceedings, subsection (2) is a catch-all provision, applicable to anyone who corruptly obstructs, influences, or impedes an official proceeding in other ways. Obviously, a person who engages in corrupt actions that physically prevent an official proceeding from taking place “obstructs, influences, or impedes” that proceeding in a way that is “otherwise” from spoliation of evidence.
Not so fast, says Judge Nichols. He reasons that the statute was meant to deal with a particular kind of corrupt obstruction — the destruction or distortion of documents and physical objects that a fact-finder would rely on in the proceeding. To highlight this, Nichols takes pains to recount, “Then-Senator Joseph Biden referred to new subsection (c) as “making it a crime for document shredding[.]” Therefore, Nichols deduces, the catch-all provision applies only to one who otherwise “take[s] some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”
Nichols is thus inserting into the text things it simply does not say. It is ironic that, in doing so, he purports to rely on the late, great Justice Antonin Scalia’s concurrence in Begay v. United States (2008). To begin with, it was anathema to Justice Scalia for a court to mine legislative history for a stray lawmaker’s remark or committee-report sentence from which the judge could claim to divine a legislative purpose — and then rewrite the statute so that it reflected this judicially discovered purpose that Congress somehow forgot to write into the statutory text. In Begay, moreover, Justice Scalia — and even more so, Justice Samuel Alito, in a dissent joined by his fellow textualist, Justice Clarence Thomas (along with then-justice David Souter) — took to task precisely the kind of result-oriented gamesmanship in which Judge Nichols is now engaging.
Begay involved a sentencing law, the Armed Career Criminal Act (ACCA), which prescribed a mandatory 15-year prison term for a felon convicted of possessing a firearm after incurring three or more prior drug or “violent felony” convictions. The ACCA defined a “violent felony” as a crime, punishable by more than one 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” (emphasis added).
Begay pled guilty to being a felon in possession of a gun. Before sentencing, it was determined that he had twelve prior New Mexico convictions for drunk driving, which the state had made a felony. It was thus plain that drunk-driving was both (a) punishable by a prison term of more than a year and (b) conduct that presented a serious risk of physical injury to another person. Nevertheless, the majority — comprising progressive justices Stephen Breyer, John Paul Stephens, and Ruth Bader Ginsburg, along with two mavericks, Chief Justice John Roberts and Justice Anthony Kennedy — did not think it fair to apply the 15-year sentence. So it rationalized, in an opinion written by Breyer, that the crimes the ACCA enumerates before the word otherwise indicated that Congress was trying to reach “purposeful, violent, and aggressive conduct,” and that drunk-driving did not make the cut.
Justice Scalia’s concurrence described this as not only “a piecemeal, suspenseful, Scrabble-like approach to the interpretation of this statute,” but one that was “not remotely faithful to the statute that Congress wrote.” Although Scalia reluctantly concurred in the judgment because he believed the Court’s precedent — which he similarly criticized — had to be followed on stare decisis grounds, Justice Alito had no such qualms. The majority’s interpretation, Alito bluntly observed, “cannot be squared with the text of the statute, which simply does not provide that an offense must be ‘purposeful,’ ‘violent,’ or ‘aggressive’ in order to fall within the residual clause” (“residual clause” being synonymous with what I’ve referred to above as a “catch-all provision”).
As Judge Mehta explains in his aforementioned Capitol-riot decision, the Begay majority opinion does not control in the January 6 obstruction cases. Not only does it involve a different statute; even the Begay majority conceded that its promiscuous interpretation of the word “otherwise” as used in the ACCA would not necessarily apply to the use of “otherwise” in other contexts.
Although Judge Nichols claims to be prioritizing the text of the obstruction statute, he does exactly what the Supreme Court’s textualists admonish against: He manufactures ambiguity to rationalize a “limiting” construction, based on a legislative purpose that he has intuited but that Congress did not express, in order to dodge application of the text that Congress did actually write.
If Congress intended its catch-all provision, subsection (2), to apply only to conduct that “otherwise manipulates a document, record, or other object in a manner that obstructs, influences, or impedes any official proceeding,” lawmakers would have written it that way. But the language Congress used described actions (“obstructs, influences, or impedes”) applied directly to the official proceeding itself, not to documents or other physical objects that were a part of the proceeding. Patently, to prevent or delay an official proceeding from taking place is to obstruct, impede, and influence it.
In his thorough opinion, Judge Mehta makes all these points, and more, as he dismantles the claims on which Judge Nichols relies — including legislative history, for those who believe that is germane. (For my part, I don’t believe it is germane even when Congress’s text is ambiguous, which is not the case with Section 1512). Given the political context of the Capitol riot, perhaps we shouldn’t blanch at the irony of the Trump appointee’s adopting the more progressive approach of taking liberties with a statute, while the Obama appointee makes the textualist case for enforcing the law as Congress has written it. In any event, though, Mehta convincingly explains that, as used in subsection (2), “otherwise” means “in a different way or manner,” and “thus expands the obstructive acts that are unlawful beyond the acts of evidence spoliation made unlawful by” subsection (1).
The Justice Department will surely appeal Judge Nichols’s ruling to the D.C. Circuit in order to get the obstruction charge reinstated, and to clear up what is now a divide in the district court on an issue that may affect hundreds of cases. I expect the appeals court to reverse the district judge. I also have little doubt that the textualist-dominated Supreme Court would also reject Judge Nichols’s interpretation of the obstruction statute, but that is unlikely to be necessary once the Circuit rules.