WASHINGTON (CN) — A D.C. Circuit panel ruled in favor of the Justice Department’s interpretation of the word “corruptly” in a law that has become a staple in the government’s prosecution of the Jan. 6, 2021, Capitol riot and one of the four charges levied against Donald Trump by special counsel Jack Smith for his efforts to overturn the 2020 election.
The three-judge panel, made up of U.S. Circuit judges Florence Pan, Cornelia Pillard and Karen Henderson, ruled 2-1 in favor of the Justice Department. Henderson, a George H. W. Bush appointee, was the lone dissenter.
Pan, a Joe Biden appointee, wrote in the court’s opinion that the word "corruptly" in the statute should be understood as whether a defendant’s actions were unlawful, rejecting any additional requirement that the defendant was acting for a personal gain.
The challenge, brought by Jan. 6 defendant Travis Robertson, centered on a subsection of Title 18 U.S. Code, Section 1512, a statute that targets witness tampering, with the subsection specifically focused on anyone who “corruptly … obstructs, influences or impedes any official proceeding, or attempts to do so.”
That charge, referred to as obstruction of an official proceeding, has been levied against countless Capitol rioters. According to the Justice Department’s monthly updates on the Jan. 6 investigation, more than 317 defendants have been charged with obstruction.
Robertson, a former Virginia police officer who was sentenced to seven years in prison for clashing with Capitol police officers, destroying evidence and stockpiling weapons after the riot, appealed his 87-month sentence in May. He argued before the panel that the jury was not given the right definition of “corruptly” when they found him guilty on the obstruction charge.
In her dissent, Henderson opened with a quote from Aristotle.
“The best laws should be constructed as to leave as little as possible to the decision of the judge,” Henderson quoted from Aristotle’s “Rhetoric.”
She argued that Robertson had provided the court with a “multiple choice” of grounds on which she and her colleagues could have overturned his conviction, with the simplest being a precedent set in another Jan. 6 defendant’s appeal, United States v. Fischer, where Joseph Fischer made a similar argument regarding the “corruptly” definition.
Henderson cited an opinion by U.S. Circuit Judge Justin Walker, a Trump appointee, that she said clearly requires a defendant to be acting for personal gain for their actions to be deemed corrupt. In her view the issue is a settled manner and the panel was wrong in reading it any differently.
During oral arguments in May, Robertson’s attorney, Timothy Cone, argued that prosecutors had to prove his client was “dishonestly corrupt” — acting with a hope of some personal gain — to break the law. Cone argued that when his client stormed the Capitol, he did so out of an honest belief the 2020 election had been stolen from Trump, not for some personal benefit.
Pan rejected that argument and the cases cited by Cone and Henderson in her dissent — United States v. Fischer and a dissenting opinion from Supreme Court Justice Antonin Scalia in United States v. Aguilar — which raised the idea that “expectation-of-benefit” was a longstanding requirement in obstruction statutes.
She explained that interpretation has almost exclusively been used in bribery and tax cases, and thus should not be taken as a requirement in a case such as this.
The obstruction charge was created in the wake of the Enron scandal, where the Houston-based energy company hid billions of dollars in debt through accounting loopholes, and took aim at conduct like the shredding of documents by Enron accounting firm Arthur Andersen during the Securities and Exchange Commission’s investigation into the company.
A separate D.C. Circuit panel heard arguments in another Jan. 6 defendant's appeal last month. Larry Brock also argued that "corruptly" should be taken to mean "consciousness of wrongdoing," meaning the defendant was aware their acts were illegal and they had no higher moral reasoning for committing such acts. Brock's attorney drew comparisons to Civil Rights-era protests where people broke local laws to draw attention to a higher injustice, arguing that Brock and other members of the mob genuinely believed their civil rights were violated because of their belief that the 2020 election had been stolen.
Robertson could request that his case be heard en banc before the full circuit, or the case could potentially make its way before the Supreme Court, where the conservative majority could be more sympathetic to the defendants' arguments.
As it stands, the panel’s decision maintains the status quo and affirms the Justice Department’s use of the statue in their prosecution of the Jan. 6 insurrection, as well as the special counsel’s use of it against Trump. It also likely prevents any argument from Trump's defense that the charge — and the related charge for conspiracy to obstruct an official proceeding — should be dismissed.
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