Who, Whom? January 6 and the undifferentiated breadth of Sarbanes-Oxley.
Posted by Ed Folsom, April 14, 2023.
In 2002, the U.S. Congress passed the Sarbanes-Oxley bill. The bill was intended to improve auditing practices and the public disclosure of financial information in the wake of the Enron scam and other then-recent accounting scandals. Parts of Sarbanes-Oxley beefed up penalties for people who destroy or conceal documents to keep them from federal investigators, the way Enron and its auditing firm, Arthur Andersen, did when Enron was under investigation. One part of Sarbanes-Oxley, 18 U.S.C. section 1512, is titled “Tampering with a witness, victim or an informant.” Subsection (c) of section 1512 reads as follows:
(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. Id.
The latter part, subsection (c)(2), is currently being used to prosecute people involved in the January 6, 2021 riot at the U.S. Capitol. Three of those people, Joseph Fischer, Edward Lang, and Garret Miller, filed pretrial motions to dismiss their charges under 18 U.S.C. section 1512(c)(2), arguing that the charges fail to state an offense against them. All three defendants are also charged with felonies of assaulting, resisting or impeding police officers, and with misdemeanor charges of disorderly conduct in a Capitol building and disorderly or disruptive conduct in a restricted building or grounds. The section 1512(c)(2) charge against each is as follows:
On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer, Lang, and Miller] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18.
The defendants argued that Section 1512(c)(2) only criminalizes certain actions taken with respect to records, documents, objects or other information. Because they are not charged with doing anything with respect to records, documents, objects or other information, they claimed that they are not charged with a prosecutable offense under section 1512(c)(2). The trial judge agreed and granted their motions to dismiss their section 1512(c)(2) counts. The government appealed that ruling. On Friday, April 7, a three-judge panel of the D.C. Circuit Court of Appeals issued an opinion, in United States v. Fischer, __ F.4th __ (D.C. Cir. April 7, 2023), overruling the trial judge and reinstating the section 1512(c)(2) prosecutions. Of the three judges involved in the ruling, one wrote the court’s opinion, another wrote a concurrence agreeing with the result but disagreeing with the breadth of the court’s opinion, and the third dissented arguing that the trial judge’s dismissals of the section 1512(c)(2) charges should stand.
One thing is for sure – section 1512(c)(2) is a prosecutorial honey pot to be dipped into, or not, with unbridled whim, caprice and selectivity. Commenting on another, and similarly broadly worded, Sarbanes-Oxley section, section 519, Justice Kagan wrote in her dissent in Yates v. United States, 574 U.S. 528 (2015):
“I tend to think…that §1519 is a bad law–too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.”
Section 1519, the one at issue in Yates, is titled, “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” Like section 1512(c)(2), it carries a maximum penalty of 20 years in prison. In Yates, it was used to prosecute a fisherman who tossed dead undersized Grouper overboard from his boat to prevent them from being used as evidence. The smallest of those fish was 18.75 inches, under the 20-inch minimum size limit. Yates’s boat was boarded at sea by John Jones, an agent of the Florida Wildlife Conservation Commission who was deputized by the National Marine Fisheries Service to enforce federal law. After Jones measured the short Grouper that Yates had on board, he told Yates to keep the short fish on board and bring them to shore when he was done with his fishing expedition. But when Yates got to shore and Jones measured the dead Grouper once again, he noticed that the smallest ones were gone.
The penalty for keeping short Grouper was a civil penalty. But Jones was unhappy with Yates, so he took the matter to the local U.S. Attorney’s Office. There was a federal statute in place, 18 U.S.C. section 2232(a), that made it a felony, carrying a maximum of 5 years in prison, to destroy or remove property to prevent it from being seized. But that wasn’t enough for the U.S. Attorney’s Office. Thirty-four months after Yates’s ill-fated fishing expedition, the U.S. Attorney’s Office not only indicted him on a section 2232(a) offense but added a count of violating section 1519. In the meantime, the minimum length for legal Grouper had been reduced to 18 inches. But under section 1519, Yates faced a maximum 20-year penalty under a statute that prohibits:
Alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case.
Yates argued to the U.S. Supreme Court that the section 1519 prohibition against destroying, concealing or covering up any tangible object does not apply to fish. By a 5 to 4 margin, the Supreme Court agreed with him, construing the statute in the context of the Sarbanes-Oxley legislation and its history, and holding that it does not apply to the concealment or covering up of fish. The four dissenters would have held that section 1519 does apply. Given that fish are tangible objects and that the language of the statute is unambiguous, the dissenters found no reason to analyze the matter any further, regardless how outrageous the result might be. In other words, Congress has the power to pass foolish laws. Congress must be taken to mean what they plainly say, regardless how foolish the result might appear. But as a matter of policy, in writing her dissent, Justice Kagan let Congress know how pathologically foolish she thought it was for them to have said what they said as broadly as they said it, not only in section 1519 but in many other places in the federal criminal code.
And now, in Fischer, here we are again – this time with Sarbanes-Oxley section 1512(c). Of course, the January 6 rioters, Fischer, Lang and Miller, are less sympathetic figures than Yates, the keeper/discarder of short Grouper evidence. But once again, we see a statute with sweeping language, enacted to address a problem far removed from the one to which it is applied, used to secure a penalty well beyond the maximum penalties under statutes that more specifically address the conduct at issue.
In Fischer, Judge Pan, writing the opinion of the court, takes a position much like that of the dissenters in Yates: The statute says what it says unambiguously, and what it says is that anyone who corruptly obstructs, influences or impedes an official proceeding, or attempts to do so, commits the offense. There is no need to inquire any further. Given that the indictment alleges that the defendants committed those acts, and given that the defendants allegedly assaulted police as part of their actions, that is sufficient to allege that they did what they did “corruptly,” without any need to further address the contours of the term “corruptly.” Sure section 1512(c)(1) requires actions that have to do with records, documents and other objects. But subsection (c)(2) contains no such express requirement. And, sure, read this way, subsection (c)(2) is broad enough to swallow (c)(1) whole and then some (so what’s the point in subsection (c)(1), you might ask), but so what? Legislatures do this kind of thing. It isn’t the role of the courts to substitute their judgment for the judgment of the legislative branch. The section 1512(c)(2) charges state an offense against the defendants.
In concurrence, Judge Walker agrees that the trial judge’s ruling should be reversed. But he expresses serious concerns over the abusive breadth of section 1512(c), absent a ruling setting forth the definition of what it means to act “corruptly.” Walker insists that “corruptly,” in this context, means acting with the intent to procure an unlawful benefit, either for oneself or for another person, which benefit might be unlawful either because it is unlawful in itself or because the means used to acquire it are unlawful. Here, that benefit would have been an electoral certification that benefited President Trump. Without such a limited definition, “corruptly” might be taken to mean only that the person acted somehow wrongfully or immorally. And if acting wrongfully is the test, people who protest in violation of any law in an attempt to obstruct, influence or impede an official proceeding are subject to a maximum 20-year penalty under section 1512(c).
For instance, how about people who join an organized protest outside a courthouse or outside a judge’s residence, intending to influence the judge in the discharge of the judge’s duties? Anyone who does that commits a crime punishable by up to a year of imprisonment under 18 U.S.C. section 1507 (“Whoever, with the intent of…influencing any judge…in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, or…resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.”). How about the people who participated in protests outside the homes of Supreme Court Justices for weeks on end during 2022, clearly intending to influence the Justices’ rulings on the upcoming Dobbs opinion on abortion? No doubt, they were attempting to influence an official proceeding — the Dobbs appeal then pending before the U.S. Supreme Court. If “corruptly” means only attempting to do so by wrongful or unlawful means, their conduct falls within the plain broad language of section 1512(c)(2).
For some reason, those people weren’t prosecuted at all. But a different ideological alignment in the prosecutorial arm of the administrative state could land them in hot water under section 1512(c)(2), right along with so many January 6 protestors facing a maximum term of 20 years in prison (and maybe held in jail pretrial, without bail, for a couple of years as part of the squeeze put on them to strike a deal). How would the people who now cheer the upholding of section 1512(c) charges against the January 6 protestors, purely because they love the result and despise the targets, feel about that? Beyond any doubt in this world, they’d be squealing like stuck little piggies about the unraveling of the Rule of Law™ and damage to Our Democracy™. But I digress.
In his dissent in Fischer, Judge Katsas would have upheld the trial judge’s ruling dismissing the section 1512(c)(2) charges. Katsas thinks that the structure of subsections 512(c)(1) and (2) creates ambiguity, and that a dive into legislative history and statutory context shows that (c)(2) prohibits only actions that impair the integrity or availability of evidence in relation to an official proceeding. As Katsas points out, “Section 1512(c)(2) has been on the books for two decades and charged in thousands of cases—yet until the prosecutions arising from the January 6 riot, it was uniformly treated as an evidence-impairment crime.” In other words, in Katsas’s view the crime is only committed by a particular type of obstructing, influencing or impeding of official proceedings — one that impairs the integrity or availability of evidence. Because the defendants are not alleged to have impaired or attempted to impair the integrity or availability of evidence, their section 1512(c)(2) charges do not state an offense.
So what now? Now the feds will keep rolling forward, jamming-up a bunch of January 6 protestors with 20-year-maximum offenses under section 1512(c)(2) – with the meaning of “corruptly” remaining a very open question — even though, for many, all potential offenses that more specifically address their conduct are misdemeanors or less-serious felonies. Take Jacob Chansley, a.k.a. the Q-Anon Shaman, for instance. Chansley got a 41-month prison sentence on his section 1512(c)(2) conviction, essentially for being there while dressed like a mental patient. Chansley assaulted no one and damaged nothing. But just look at him — wrongthink wrecker of Our Democracy™ that he is! He’s definitely the wrong kind of person. What more reason do federal prosecutors need to club him like a baby seal? And with statutes as broad and undifferentiated as section 1512(c), with plain language that sweeps-in the political actions of so many, how else is a prosecutor to decide whom to crush with those laws and whom to let pass?
Who shall deploy such laws against whom? Why, the righteous shall deploy them against the wicked, of course. And so, the prevailing Rule of Law™ in Our Democracy™ becomes the answer to a question long ago posed with elegant simplicity by the Bolsheviks: “Who, whom?”
But in the throes of politi-cultural inversions, who are the righteous and who are the wicked, and for how long?