Is Section 1512(c)(2) just obstruction by spoliation of evidence, or is it any kind of corrupt act by which a prosecutor decides a proceeding was impeded?
In this morning’s Fischer case oral argument over the obstruction statute (see my earlier post), Justice Clarence Thomas cut right to the chase regarding the ambiguity in the provisions text. Justice Thomas asked, do we look before or after the key word otherwise?
Here is what Section 1512(c)(2) says (my italics):
(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.
If the court construes what otherwise means to be controlled by what precedes it, the statute’s reach would be limited to spoliation of evidence – i.e., obstruction of a proceeding by the performance of acts similar to the evidence-tampering methods set forth in subsection (c)(1) (tampering, destroying, mutilating, and concealing). That would be consistent with Congress’s purpose, in Sarbanes-Oxley, to repair a flaw in federal criminal law due to which people who shredded evidentiary documents could not be prosecuted (though those who caused others to shred could be).
On that other hand, if one interprets otherwise by what goes after it, it would permit prosecution of any kind of act, even if it had nothing to do with spoliation of evidence, which has the effect of obstructing or impeding a proceeding — including preventing the proceeding from taking place.
The latter interpretation would make the statute fit for prosecution of the Capitol riot. The former probably would not. (I say “probably” because, in some of her questions, Justice Amy Coney Barrett floated the possibility that the Justice Department could at least try to prosecute on a subsection (c)(1) spoliation theory that the certificates showing the states’ electoral votes could be deemed documents that the rioters “concealed.”)
The Justice Department’s biggest challenge is the breadth of the statute under its interpretation, which admits of little if anything in the way of a limiting principle: Any corrupt act that a prosecutor can say somehow impeded a proceeding could be prosecuted.
This offends three important principles.
The first is notice: Criminal laws are supposed to be sufficiently clear that a person of ordinary intelligence knows what is prohibited. Congress is supposed to define what is proscribed and then, with everyone sufficiently aware, prosecutors apply what Congress has defined; we’re not supposed to have a situation in which conduct that Congress has not gotten around to criminalizing occurs and, because the conduct is condemnable in the abstract, prosecutors presume they are at liberty to criminalize it by stretching nonapplicable statutes to the breaking point.
The second, following from the first, is separation of powers: Congress writes the laws, and prosecutors enforce them; prosecutors are not permitted to create crimes: They are stuck with what Congress has prescribed.
The third is arbitrary enforcement: When prosecutors are given not only prosecutorial discretion (which they undoubtedly have) but carte blanche to create crimes, what invariably happens is that unpopular people are punished while popular and/or politically connected people are immune. On that score, a number of the justices wondered aloud today why, if DOJ says any corrupt act that impedes a proceeding may be prosecuted under Section 1512(c)(2), it has only been applied on that theory to the Capitol rioters. How about Democratic congressman Jamaal Bowman, who pulled a fire alarm to prevent a vote in the House? How about the radical leftist rioters who firebombed the federal courthouse in Portland? How about the leftist demonstrators who forcibly disrupted Justice Kavanaugh’s confirmation hearings?
There is certainly a discernible pattern when it comes to who gets prosecuted and who doesn’t. But that pattern — partisan politics — has never been thought to be an acceptable limiting principle in the enforcement of federal law . . . at least not by people willing to state honestly what guides their exercises of prosecutorial discretion.