the inclusion of additional crew members and east palestine enhanced safety. >> i have reviewed the transcript from the inward facing camera and it's clear at they did a phenomenal job. there were three people in the locomotive. one, the locomotive engineer was focused on operating the train. the conduct there at one point got out after it derailed to say, what is going on here? a something on fire? there was uncoupling of the locomotive so they could move forward and be safe as they do in standard practice and another was talking with dispatch. there was incredibly good resource management there. >> has the ntsb investigated other rail accidents with multiple crew where it was beneficial to the incident report? >> there was one in iowa.

>> we will leave this re and take you to the supreme court in a case challenging the criminal statute us to charge january 6 defendants with obstructing a federal pr. this is life coverage on c-span three. >> the statute, therefore, prohibits impairment of the integrity of availability of information and evidence to be used in a proceeding. in 2002, congress added section c to cover other forms of impairment known unknowns so to speak. it was after all the dawn of the information age. until the january 6 prosecutions, section 1512 c to had never been used to prosecute anything other than evidence tampering. that was for good reason. this court has said that otherwise when used in a

criminal statute needs to do similar conduct in a different 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 them to do some independent work. the january 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. this is enron driven evidence tampering statute is not one of them. i welcome the court's questions. >> mr. green, how do we determine what these provisions have in common. do we look after the otherwise

or before? >> 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. we look back and we look forward. >> wouldn't it be just as easy to look at the c 2 and ask what it has in common with c 1 as the basis for that similarity? >> no, because it is fixed to the effect of the actions that it 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 proceedings. so why isn't that the basis for the similarity? >> the presence of the otherwise provision. otherwise the court needs to do similar conduct in a different way. what we've got here is the impairment of evidence being done in a different way. >> i'm sorry. my thought was this, 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. isn't that the structure of this provision? >> it is. it it is an important 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.

>> what is fascinating about 1 that is not about 2 is that one doesn't require you to have actually impeded the preceding. one requires you to have that intent but you don't actually have to accomplish the intense. 2 requires you to accomplish the intent so that is a very different articulation of what the object of 2 is. that is the actual disruption of the proceedings. >> i would respectfully disagree. >> look at the language. 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. i'm not sure i would disagree. i do not think that there has to be an actual impairment. >> i do think under 1 you don't need an impairment but under 2 you do. the verb requires you to actually obstruct proceeding in 2. nowhere and 1 do you have to obstruct. >> in 2 you only have to attempt. >> yes. >> >> do you agree that the government could take a shot in proving that your client

actually did try to interfere with -- i'm sorry under c 2 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 of impairment. >> i'm 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 my hypothetical. he's not actually altering the vote certificates which is why i corrected myself. with 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. i imagine him acting on the certificates, not the act of counting them. >> i think you could try it but i don't think talking about trying to impair anything other than the evidence itself are trying to obstruct a proceeding. there's questions about what proceeding means here. 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. >> maybe i'm misunderstanding your argument but i thought it was thatpicks up other things. so 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 the integrity. if it is just impeding or delaying we would submit that that is not part of 1512 see -- c. delay is mentioned in five other parts of 1512. >> mr. green, if justice barrett is wrong what work is c2 doing? it seems like you have articulated 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? >> let's look at the verbs of c1 which are alter, destroy, delete, and conceal. let's think about the antonyms. instead of destroying would be to create. one could use some sophisticated computer program. we have heard an awful lot about ai and we've heard about the possibility of deep fake photographs. i think you would violate c2 if you created a photograph that establish your alibi in some extremely sophisticated way that would get it admitted into evidence. >> see you are saying there are things other than particularly altering, destroying, collating, concealing but it has to be limited to a record. >> not necessarily. another example would be not to

conceal but to disclose. if i disclose to witness listed on large multi-defendant trial my purpose in doing that though i have not altered the document would be to intimidate the witnesses or prevent their intended. that on our submission would also violate. >> and i ask you one of the question so i fully understand the theory. you keep using the term evidence. that does not appear in 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 and your theory and why is it there? >> the statute for the tampering of witnesses, victims, and families. along with witnesses, victims, and informants comes evidence they provide whether in the form of testimony or documents.

>> i understand that the provision we are talking about does not use the term evidence. in addition it uses the term official proceeding which is also 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 evidencing an investigation of the trial? >> it is. we are not limiting. our position does not limit to documents or records. i would submit that c1 carries into c2. the other optic is pretty broad. it need not be as 1512 f provides it may not be admissible. it could cover things like electronic records. it could cover communications. it could color -- emails and

all things we use by factfinders in a formally convened hearing. >> just a quick question. what about the second circuit decision. what was involved was not evidence. it was a forged court record. did 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 c1 -- c2. >> just to take you back to the question that justice thomas started he was. 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 c-span.org has. there are multiple ways in which the drafters could have made it clear that they intended c2 to also operate only in the sphere of evidence spoilation. it does not do that. it says otherwise obstructs, influences, or impedes. >> certainly the statute could be written more precisely. any statute could be written more precisely. >> it's not a question of precisely. it's a question of otherwise.

this is what justice thomas said in the beginning. what is this otherwise taken from c1. of course there is commonality involved in an otherwise but what is the commonality that it is dry and from there. it tells you what it is. that is the things that fall into c2 also have to instruct -- obstruct, influence, or impede but what c2 does not say is that it also has to spoil evidence. >> otherwise in a criminal statute means 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 that 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 easily omit something like that and would omit something like that for the sake of economy. 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 -- >> 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 not a very good advertisement. what legate does is exactly that

. you had a good case there and it was complete failure. they so we looked back at this thing that congress did not. we put it in. it was violent and aggressive. so they said where does that come from. we made it up but it is not a great advertisement for rewriting a statute to take and otherwise provision and turn it into an otherwise position. >> we could submit that that was on other grounds. the court did 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 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 court is holding about the statute and the significant holding about otherwise was aggregated in itself as a result of those cases. >> i am not a fan of that. some of us press perceived at the time that there were different problems. there is a point that you've 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. if you have a statute that says anybody that kills or injures or solves someone that otherwise causes serious injury

you would not think that applies to defamation. so that i think you have to go on to some other arguments that 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 reason. i'm not going to contest or bite off more than i can chew and say that it is impossible. we think it is unsound for the additional reach since that if you look out at what the conduct is we are talking about interference or operation on forms of evidence and testimony that posed a -- obstruct a proceeding. that is what it is about. i would submit that as the briefing indicates those two venerated light cannons 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 see -- c zero in on that. >> you have other arguments. you have arguments about the breadth of the government's reading. >> >> so i would refer to judge katz like he did particularly in page 88 listing all of the different provisions in section 1512. that 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. not limited by federal. >> there is a good case that everybody knew this was going to be superfluous because it was a provision that was meant to function as a backstop. it was a later enacted provision. congress have the statutes all over the place. it had just gone through enron. what enron convince them of us that there were gaps in the statutes. they tried to fill the gaps that they found out about and then they said this is a lesson to us. there were probably other gaps in the statute but they did not know exactly what they were. they said let's 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 defines it a backstop provision to fill gaps that might exist. they don't know exactly how they exist but they think that they probably do exist in a pre- existing statutory scheme. that's what this provision is intended to do. >> respectfully, your honor. in a close reading of yates both the majority and dissenting opinion demonstrate that the court that 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 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 of evidence. how are they different? they are really not. you can point to any provision and point to super fluidity in this section. so we go back to justice kagan's position which is, what you don't 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 in its language. >> 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 -- the

whole 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 don't thank you can reconcile. that is what the court said about 1519. i don't 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. this may cover something it has never covered before. >> 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. >> i'm not sure that is true.

i would point to hatfield and problems in portland, oregon. let's also look at what the court has said in so many different cases. in dubin, in yates, and kelly. >> there was a different and the use of words. here otherwise obstructs, influences, impedes might have a problem that the government can address but it is not unclear what those words mean. >> the government has no way to address that. >> we can let them answer. >> justice kagan, >> justice kavanaugh. >> if it were just the language in c2 which said that if that were the whole provision, do you acknowledge that the language of that would be

applied properly to a situation like this? >> unfortunately no. the reason for that is that again applying all of the other cannons 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 cannons all of those would still obtain if it is there by itself. otherwise is the icing on the cake. finally, justice kavanaugh i would mention as i did to just a spirit -- >> if you did not have c1 and just had c2 -- >> 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, plausible but broad readings of criminal statutes 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 says. >> i have a question about the phrase in c1 to agree to specific intent? what is your view of how that parenthetical applies if at all? do you think that requirement carries over? >> not correctly. 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. it seems like it would read awfully 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 her position of how it would read? >> it is awkward. there's no doubt it is awkward. 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 then it 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 from the accepted reading on the dc circuit right now. it's not different

>> so corruptly is redundant? >> it seems like it is getting to be. our submission is that corruptly could mean something different. >> justice jackson. >> i am still wondering if your theory about the provision might be too narrow in a sense because you have evelyn -- evidence going. but 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 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. it's not just evidence. it's an official proceeding. it is an example of the corrupt

tampering with certain things. c2 broadens it out a little bit. it's not just documents and records. what you think ? >> i think that is a correct reading, your honor. as 1512 f demonstrates, that actually supports our position because it says the evidence need not be admissible. what would that mean about the statute if it is not evidence? it has been applied and occasionally c1 has been applied. >> and a non-evidentiary way. >> to things that could become evidence. an effort to shape somebody's grand jury testimony. >> let me ask you about the question that just a spirit asked 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 availability of the object integrity or availability. just a spirit says you have somebody that is appearing the availability by doing something to prevent the object from getting to the proceeding. why wouldn't that count under c2? this is preventing congress from counting the votes. it's in an envelope going to the vice president's desk and somebody does something to impair or prevent that from happening. why isn't 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. >> they are not delaying. let's say the person steals the envelope. >> and it gets harder. you still the envelope. all of those things which are certainly not what happened here and not in the indictment. the vote count is not even in the indictment. >> we would not have to decide that. we could send it back and clarify that that is what the statute means. am trying to understand if you agree that that's what it could mean. >> i do not agree. >> why not? >> the reason is, if you look at 1512 it's about a direct fact or in some senses an indirect fact but in a limited way on evidence that is to be used in a proceeding. a proceeding as i mentioned earlier -- >> so as to limit its availability. what i am suggesting is if you are doing something to limit it's availability why doesn't it count?

>> we are limiting the availability of its use by a factfinder in a proceeding. that is the way to mary 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. some kind of hearing >> thank you. >> thank you, counsel. >> 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. many crimes occurred but in plain english the fundamental law committed by many of the writers including petitioner was a deliberate attempt to stop the joint session of congress from certifying the joint results of the election. that was the congress work in that proceeding.

he was charged with violating section 1512 c2 . the case of that comes to this court presents 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 apply and a textual limit. in his view because it covers tampering with documents and other physical evidence. the second prohibition should be limited to acts of evidence impairment. that limit has no basis in the text or tools of construction. the reading hinges on the word otherwise but that means in a different manner not in the same manner.

the prohibitions in section 1512 c2 are not unified items on the list we could apply associate words. they are separate provisions that have their own sets of verbs and nouns. they prohibit attempts which should be duplication that makes no sense on the reading. congress included a distinct mental state that it chose not to repeat. section 1512 c2 is not limited to evidence impairment. instead, it is a classic catchall. c1 cover specified acts in an official proceeding. it covers all other acts in an official proceeding in a different manner. the court has allowed the case to proceed to trial. i welcome the court 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

government position throughout the lifespan of the statute? >> it has certainly been the government position since the enactment that it covers the myriad forms of obstructing an official proceeding and is not limited to some kind of evidence impairment. >> have even forced it in that manner? >> we have enforced it in a variety of prosecutions. i cannot give you an example of 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 correct mens rea but that's because i'm 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. there's no specific evidence or concrete testimony or physical evidence. instead it is more general obstruction of the proceeding. justice alito mentioned a case as well that was a forged court order. 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. it covers everything and enumerates. it's the acts of altering, concealing records, documents or other objects. c2 would only pick up conduct that obstructs a proceeding in a different way. there's no super fluidity in our meeting. congress was to fighting this up into two did separate offenses. that is actually a virtue of our reading as compared to

petitioners because of not hurt him articulate anything that would fall within c1 that would not also be in c2. >> in the way you are reading it, c1 and c2 almost exist in isolation certainly not affected. >> we do not deny that there is a relationship. the relationship is what congress specified in the text. it follows the word otherwise. that is the similarity. what both have in common is that they name conduct that obstructs an official proceeding. c1 does a one-way tampering with records and documents. c2 does so with respect to other conduct. this is the route the court has to go down to look at what congress actually prescribed in contrast if you take the petitioner invitation to come up with some a textual loss

from c1 to pour over into c2 i don't understand that the court can look at to guide this determination of what the relevance would be. >> so that was unanimous and very short. it explained how to apply the document generously. 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 proceeded. the otherwise phrase is more general and the terms that proceeding 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 carryforward into two and the terms record document and other object carryforward as well. it seems to me that they sort

of control and divine the more general term. >> mr. chief justice -- >> sorry for the interruption. the otherwise means in other ways. alters, destroys, relates 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 in the parallel list of nouns or 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 the best evidence that is hard to figure out how would you define the similarity between them is that there are multiple interpretations in this case. justice alito reflected on them and there were repeated in the

dc circuit and district court. >> that relates to the question you have asked me which is that judge nichols thought that c1 should limit c2. the relevant thing is it deals with documents or other objects. it should be limited to only ask that impair physical evidence. meanwhile, judge katz had looked at the availability or use of the evidence and defined a broader loss. >> that is simply saying -- >> that is impairment of evidence. >> they are just applying the same document to different aspects. i think you knew that as well. what are the common elements. alters, destroys, and mutilates the record or document. you will find both of those in controlling and defining the term that follows so it should involve something that is

capable of alteration, destruction and mutilation. with respect to the record or document. >> 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 can't just tack it on and say look at it as if it is standing alone. >> let me respond to that in two ways. i wanted chance to address any concerns. i don't even understand petitioner to be suggesting you can mix and match the verbs and nouns we have seen in this way. judge nichols had a more limited view that it exclusively focuses on physical logic so 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. so the basic point is that there is nothing in the text of c2 to disclose what the relevant similarity 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 does it authorize or do on your theory? i think that whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so stands alone. the otherwise not hearing what work it does. >> the work that otherwise does is to set up the relationship and make clear that c2 does not cover the conduct encompassed by c1. i acknowledge -- >> beyond that. beyond saying that okay, 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. if i might, what does that mean for the breadth of this statute? what is sitting that disrupts a trial or access to a federal courthouse qualify? when a heckler today and the audience qualify or at the state of the union address? would pulling a firearm before a vote qualify? >> there are multiple elements of the statute that may not be satisfied by those hypotheticals. i relate to the point i was going to make to the chief justice about the statute. these limitations are things that i think would potentially suggest that many of those things would be something the government can charge. it would include the fact that it does require obstruction which we understand to be meaningful interference. that means if you have some minor disruption or delay or some minimal out -- outburst --

>> so that requires the court to reconvene after the proceeding has been brought back 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? >> was some of them it would be necessary to show -- >> they were trying to stop the proceeding. >> then we would also have to prove they acted corruptly. 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 about yesterday. what i would say is the extent

that they are pressing on the idea of a peaceful protest, it is not clear to me that the government would be able to show . >> a mostly peaceful protest that actually obstructs and impedes an official proceeding would not be covered? >> not necessarily. we would just have to have evidence of intent. >> they intend to do it all right. >> if we are able to show that they knew that it was wrongful conduct then yes. >> what is corruptly in your view? >> that at the requirement of the conduct to be wrongful and committed in the wrongdoing. this relates to where the court said this is a term with the deepest roots and meaning. this is not just the intent to obstruct. just to give you a more concrete example of how this has played out, i would

point to the jury instruction in the robertson case which we refer to on the brief, there the jury was instructed 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 examples that justice gorsuch provided. we had a number of protests in the courtroom. let's 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. let's say it delays the proceeding for five minutes. i do know that experienced advocates like you and mr. green won't be flustered like that but in another case and advocate may 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 to prove that. we don't think it picks up minimal the minimalist minor things but it denotes a meaningful interference with the proceeding. >> c2 doesn't 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. >> you are preaching the plain meaning interpretation of this

provision and the plain meaning of impede in webster's 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 to progress or action by putting obstacles in the way. it doesn't require obstruction and it requires the causing of delay. again, why wouldn't that fall and you could say well we won't prosecute that. indeed from all the protests that have occurred in this court, the justice department has not charged any serious offenses i don't think anyone of those has been sentenced to even one day in prison, but why isn't that a violation of 1512 c2? >> we read this morning early and maybe you can look at the broader definitions and adopt a broader understanding but there would still be the back step of

needing to improve -- prove corrupt intent. >> it's wrongful and do you think it isn't wrongful? >> i could imagine defendants in that scenario suggesting they had some protected free speech right to protest or not conscious of the fact the one about 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 safety and did so with only evidential 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 like the bridges and all around there were blocked and members who

needed to appear at a hearing couldn't get there or were delayed? would that be a violation of this provision? >> it sounds to me like it wouldn't satisfy the proceeding element or nexus requirement. >> why not? what 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 -- specific proceeding but the court has required a nexus and that has been requirement and other cases as well with 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 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 formulation that the court has characterized and never suggested could be subject to an prevalence -- evidence gloss so there are concerns about hypotheticals but your question about what would happen in this courtroom would be covered by 1503. >> 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 least five workdays for me personally, all of this unnecessary paper. it delayed the progress of this

litigation, so i am improving -- imposing rule 11 sanctions and why doesn't that fall into your interpretation of that? >> congress had a safe harbor and it's reprinted in the appendix of our brief that specifies advocacy legal representation conduct did as part of obstruction shouldn't be understood is that so congress is trying to draw some minds around participation in a proceeding around the one hand versus external forces that obstruct it. >> but it does fall within the language. >> what kind of evidence do you typically present in these january 6 cases to prove the corruptly element? >> the prosecutions from january 6 require us to show that first they had knowledge that they were meeting that they and they did defendant wanted to disrupt the 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 it and

we allege that they assaulted a police officer are focused on things like reparation for violence, bringing tactical gear or military equipment to the u.s. capital. i want to emphasize that this is a stringent mens rea requirement that strained in the u.s. attorney's office. we charged 1350 defendants in january 6 but only had the evidence of intent to bring charges against 354 this violation. >> 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 proceeding. we look for evidence that they intended to prevent congress from certifying the boat and used his actions to obstruct that and also as i mentioned, the knowledge of wrongfulness or unlawful contact for

particular preparations they made. there are number of cases were even though we had the evidence beyond a reasonable doubt, there have been acquittals because there was testimony credited that the defendant not the proceedings were over and didn't intend to obstruct or one person thought and said he thought law enforcement was inviting him in and even in situations where we have evidence, we don't have the 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 a proceeding. i guess what i am 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

being an official proceeding like killing or threatening or intimidating witnesses is covered. so if we read this to be obstructing an official proceeding, i don't understand what happens to the rest of those provisions. >> so you are pressing on an idea that there is a surplus, i don't think it's true. there is overlap or duplication and that's true on both readings in this case. in part it may even be more true on petitioners reading because he says it's like lice focused on this that leads to obstruct or interfere with testimony and documents and so forth so that same duplication will be present in his reading but with respect to that our interpretation doesn't protect any superfluity because each of those provisions you cited covers situations that 1512 c2 wouldn't cover and there are three distinctions. the first is there is a

corruptly mens rea and it could be violated in a way that wouldn't require the government to do it correctly and we could charge applications of those provisions under them and not under 1512(c)(2) and some sleep more broadly in a wider range of circumstances so that lets us charge in those situations where we can't 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 one you referenced about killing a witness and there the government would charge under that provision because it subject to higher penalties then 1512(c)(2). >> with the government necessarily lose in the sense they wouldn't be able to bring charges against some of the people that you have described with justice kagan if we looked at 1512(c)(2) 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 it's directed to preventing access to information or documents or records or things the official proceeding would use? i explored with mr. green as did justice barrett the idea to the extent that there were people who knew the boats were being counted that day, and that is done in a documentary way in our system but they are interfering by storming the capital might qualify under even and evidence are document interpretation of 1512(c)(2) but what is the government inc. about that? >> i think if they articulated the standard they would likely be viable charges and we know in our brief we preserved an argument that we could satisfy even and evidence related understanding of 1512(c)(2) because the very part of the conduct we have the intent evidence was to prevent congress from being able to

count the votes and able to certify the results of the election and we need to evaluate whether they can go forward based on whatever the court says and i would very much caution the court away from any holding that would require specific evidence by the government of precise electoral certificates or anything like that but the point would be that those who came to the capital and engaged in this criminal conduct to displace congress violently from where it had to be to count those votes acted with an intent to impair their ability to consider that evidence. >> general, the district court and the dissent below had a different theory or variation on this statute and how to read it and you are starting to explain that to the chief. could you do it if we accepted the district courts view? i presume you can do it if we accepted the dissent below, correct? that is your whole response to

justice jackson is that it assumes the dissents view >> i thought that justice jackson was potentially proposing a broader view including focusing on the availability part in making clear the whole point is to prevent the proceeding including the consideration of evidence and the proceeding from happening which could qualify. it comes to be harder on the view of judge katz and judge nichols because judge nichols seemed to think that to prove obstruction it had to be limited to taking action with respect to the documents themselves and would be a difficult standard to satisfy. >> you read our discretion on corrupting yesterday and it's clear and you endorsed the robertson view. could you tell me what you feel about the walker view and judge walker being part of the majority below. i assume you do know that. >> judge walker articulated an

idea that corruptly has to turn exclusively on the government being able to show the defendant sought to secure an unlawful advantage for himself or someone else and we agree that is a way for the government to prove corrupt intent and a way that has traditionally been deployed in that tax context because the theory is the defendant is violating tax laws are taking efforts to secure an unlawful advantage. it would be incorrect for the court to suggest that is the exclusive mechanism for the government to prove corruptly and there are various other ways where we may have evidence as we think we do here of unlawful means created with consciousness of wrongdoing. there is no basis in the common law where the term has longley been understood to limit the government's ability to prove it only with that one specific way that judge walker pointed out. >> the juror in this case is the fear that reading the government's view of either yesterday's case or today on its plain terms would make it so broad that somehow that

poses a problem. i think the judges below struggled with that by saying that gets addressed in the word corruptly and in the nexus requirement which is the point you make today. neither of those were resolved below because that wasn't the question below, correct? >> that is right. the only issue they resolved was the meaning of the actus reus. >> the only meaning for us is how we read these words? >> that is right. we don't want to lose sight of the fact is your question said there are inherent restraints based in the statute and the nexus restraint is critical and it's one that they pointed to to ensure the obstruction statutes don't sweet broadly and scoop up conduct that could be happening out in the world. it has to have a tight

connection and the relationship in time causation our logic with the official proceeding and we think it sets a high bar as evidenced by the fact as i said to justice kagan. we can't prove it with respect to everybody in the riot at the u.s. capital in january 6. >> thank you. >> general, are you putting a violence requirement on an overlay on this because i am thinking to some answers to these hypotheticals but it seemed you kept emphasize the aspect of violence so am i understanding you to say there has to be some sort of violence or no? >> we don't think it is a requirement under the statute but clearly easier for us to satisfy things like the corruptly mens rea when we see an action like assaulting a police officer that is obviously wrongful unlawful conduct in every but he knows that is a crime and you can't do that. i was trying to say that for situations in hypotheticals to have people are thinking about constitutionally protected action and they think there is an a right they don't have but it may demonstrate they don't have the requisite

consciousness of wrongdoing to proven obstruction charge. >> thank you. i'm not quite sure i understood the answer you gave earlier about whether or not you have previously used (c)(2) in this type of case. have you done that before? >> we have charged it in situations that don't involve evidence impairment and as the plain language suggests it covers a lot of ways of obstructing and i am not aware of factual circumstance or event out in the world where we could have proved the elements of 1512(c)(2) beyond the cases where we brought these prosecutions. >> just so i understand the prosecutions are limited in what way? >> a requirement that the specific people had in mind an official proceeding so that takes out the category of hypotheticals where you're protesting a brand of government and you don't have the specific argument in mind and we also need to show an intent to obstruct the proceeding and the nexus to it

which could take care of situations where maybe somebody is pulling a fire alarm in a different building. >> in prior cases you have applied (c)(2) in a situation not involving specific documents? >> correct . things like tipping off someone to a grand jury investigation or an undercover officer or a fake court order with nothing to do with the evidence but prompting the litigant to dismiss. >> your friend points to an office of legal counsel opinion from 2019 that i haven't looked at yet but i will that says it is consistent with the judges opinion below. >> that advice offered to the attorney general and never adopted as a formal position of the department of justice related to distinct issues that arose out of special counsel

investigation and issues that involve the office of presidency. i don't think it would be right to suggest it took a firm stand although it suggested that maybe it should be understood more narrowly but it certainly didn't represent any formal adoption of that position and that would've been inconsistent with how the government has litigated under this. >> what constitutes a formal acceptance of these? >> i should know the answer to that as a matter of doj policy, but what i can tell you is the reason i say it wasn't an official position is because it specifically said there is no need to go down the road of deciding what 1512(c)(2) covers because even assuming it covers the full range of obstructive conduct, the allegations in the memo didn't satisfy the standard there so it ultimately depended on the issue and not necessary to engage further. >> thank you. justice thomas. >> general, you said, as i understand it, you have applied (c)(2) in previous cases? >> yes in cases that don't fit the evidence impairment model

that petitioner is urging on the court here and it's not just (c)(2) but the ominous -- omnibus clause. >> those are fine. but (c)(2), i am not clear as to whether or not the specific instances in which you have used (c)(2). you seem to think or argue that this is a standalone provision almost. >> we think it covers the full range of obstructive conduct not covered by fentanyl but limited by an official proceeding. >> if you have applied that, have there been previous other than the dc circuit, previous courts of appeals that are looked at this? >> yes and the uniform consensus has been that (c)(2) is not limited by this evidence impairment that they are

asking the court to read into the statute and no court of appeals that went the other way and we have seen some that recognize the plain language of this provision that it sweeps in the myriad forms of obstructive conduct. >> so much of the argument hinges on this being fairly clear. that your interpretation of (c)(2)? >> yes we certainly 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 if you look at the terms and the statute itself is the plain language's supports our view but it doesn't end there. i have mentioned a few times the other provisions in 1503 and 1505 but we think that is relevant because congress wasn't writing on the blank slate when it enacted 1512(c)(2) and it's not like they thought of the first time in this verb phrase but it wasn't taken out of the ether but that was a well-established

term, verb phrase and obstruction lot drawn from other statutes and as this court has said when they take a phrase like that it brings the old soil with it so congress would have clearly known that this court have interpreted this in other statutes to encompass the full range of conduct consistent with all precedent as i mentioned earlier so when you put it all together, there is no real ambiguity here and we have the best reading. the only other thing, the icing on the cake, is that if actually what congress wanted to do was write a statute that focused only on evidence impairment, there was a clear and obvious way to do that and he could have tacked on a residual clause or see one that says otherwise impairs evidence and not used this oblique reference of otherwise and use a term that had a well-settled meaning to sleep more broadly to convey that type of limited scope but it would be nonsensical because it would be so readily misunderstood and in fact every lower court has understood congress to have

legislated more broadly here. >> it's beginning to sound like a contextual argument, which you seem to issue in this case. >> i think the context bears weht and we think the roots of this language and other provisions help fortify or reinforce how the court is understood the plain language. >> you argue there is an exception for congress that has only a minimal effect on these proceedings and where does that come from? >> that comes from the verb phrase obstruct influence or impede but if you look at the dictionary it conveys the type of action that blocks, hinders or makes difficult, persistently interferes with and this is the kind of verbs themselves that inherently contain this limitation. >> there can't be a minor impediment? i >> we think if you look at what

congress does is a whole the lead term here is obstruct and these are various ways of capturing the world of obstructive conduct. i think that adequately conveys the idea that some kind of minimal the minimus interference doesn't qualify. >> it didn't stop with obstruct but added impede and what is the meaning of that and how would you define a minimal interference? i suppose a jury would have to be charged on that and had to prove the person violated this provision and you must find the person committed more than cause or intended to cause more than a minimal interference and how would you define that? >> i think to the extent it would come up in prosecutions and i am not aware of any and i think it would be the defense theory and it could be that the court decided it was so minimal it doesn't fit within the terms and i minimize -- recognize there could be gray areas about the obstruction whether it satisfies the active radius.

>> what 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 hasn't forced any help to the proceedings it wouldn't pick up but the same issue would arise which likewise refers to impede. >> you haven't said anything about the arguments and i will ask you a question. suppose somebody commits conduct that falls squarely within 1512 d somebody who harasses a person and therefore dissuades that person from attending or testifying in an official proceeding. so you have a clear violation of 1512(d) punishable by no more than three years in prison but when congress added 1512(c)(2) , which seems to cover exactly that conduct they

said the punishment, you could punish them from to 20 years? >> there is a clear difference between 1512(d) and 1512(c) in which 1512(d) doesn't require obstruction. so the intent is to prevent testimony or production of document but they haven't read that statute to require an action to obstruct which i think there were scenarios where the government may be able to prove a d offense without satisfying 1512(c)(2) but i want to talk about the broader concern about the 20 are penalty and i will say that the matter which statute the government charges under with respect to all of the relevant obstruction statutes, they would be funneled through the same sentencing guideline so it wouldn't 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 that's 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 don't 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 don't 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 somebody that wouldn't 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 an adverse employment action had to be significant and you said it doesn't 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 don't read and a textual requirement of significance, but here you seem to be arguing, yes, you have to read in and a textual requirement of something that is more than minimal. >> that isn't our argument here. we are grounding this in the text and we aren't suggesting there is a de minimis principle that applies throughout the various statutes out there and 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 don't think we cited but it includes disclosing the identity of an undercover officer. >> 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 didn't 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 any other i have is you have referred a number of times to other omnibus 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 wouldn't have to worry about that? >> let me take the questions in order. with respect to petitioner's reliance on 1519 as the catchall, i understood it to be the opposite. it drew a direct comparison between 1519 on the one hand which said it was more narrow based on some of the contextual clues and 1512 -- 1512(c) said that was the brought obstruction provision, the one intended to be codified in this broader prohibition aimed at proceedings and the language of (c)(1) is broader and would scoop up the world of physical objects in contrast to the narrowing interpretation they accepted and the other so i don't think 1519 was the broad

catchall 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 recognized that congress was plugging the specific goal --: that and it did that with provisions but it was 1512 the court pointed to as the place we would sensibly locate this broader provision that aims at the full range of obstructive at to catch the unknowns but with respect to the question and i forget about the other statutes and whether they would be endangered, i would be concerned about that and defendants would make arguments and the verb phrases exactly the same or in a different order sometimes but it obstructs, influences or impedes so the relevant verbs would be similar and there are different direct objects there

for example in 1503 with the due administration of justice and in 1505 it is the administration of the power of congresses inquiry and investigation but not clear to me whether they may seek to artificially limit those beyond the plain terms even though these kinds of provisions have been in the obstruction law it traces back to 1830 and they have never been understood to have that narrow limitation to evidence impairment or anything else. >> i think the key word in this is otherwise and trying to figure out what that means under the established principles of statutory interpretation and seem to trigger the use of generous president and you have used the phrase a few times, catchall as your brief and this describes this as how you interpret catchall provisions. so does that apply here?

>> we don't think it can sensibly apply here. the court has said many times that otherwise is a natural way for congress to create a broad category. i don't dispute there can be situations where you have a parallel list of nouns or parallel list of the verbs where the court may further think that generous principles apply, but it's not how 1512 -- 1512(c) is structured it has its own complex internal structure and it has the mens rea requirement unique to 1512(c)(1) and congress didn't transplant that into 1512(c)(2)'s that means with they use disparate language into provisions it usually means something. it isn't 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 it's not evident on its base what the common attribute would be. >> as you know, that is true in almost every use of generous

case in the treatise explains that as well which means it is hard sometimes to figure out what the common link among the words in the phrases. i don't think that point distinguishes that case from other generous cases but you can respond. >> i do think a plane speaker of english would recognize that usually the common link or connective tissue is the language that follows the word otherwise. that is the congressionally approved similarity and that's what they have in common and they relate to obstructing an official proceeding and i do recognize the petitioner has invoked this and your question touched on it but the statute which we think is a model of statutory interpretation to follow here, it was different and it had a list of nouns and it was the kind of statute were potentially it could apply. >> what about the contextual points and a few of them i think have come up and i wanted to make sure that you responded that it would be odd to have a broad provision tucked in and

connected by the word otherwise. >> i don't think the placement is odd at all for a few reasons. the first is the point i was trying to make to justice kagan about this court's own recognition that 1512 is one of the big obstruction statutes, the one aimed generally at official proceedings and not more discreet and the provisions like 1519 and some of the ones that come before it that are more narrowly confined and are intended to reflect discreet circumstances and it doesn't describe 1512 at all. when congress was trying to prohibit obstruction of a official -- official proceeding, 1512 was the right place to go but then they say congress buried it in the middle of the statute. i think it is inexplicable when you think about how the others are structured and 1512(d) has a minimal penalty and doesn't require the intent to obstruct so it made sense to put 1512(c) before but after a which is the most serious like

killing a witness punished by 30 years are up to life. >> last question. there are six under -- other counts which include civil disorder and physical contact with the victim and assault, and entering and remaining in a restricted building and disorderly conduct and disorderly conduct in the u.s. capital building. why aren't those six counts good enough from the justice department's perspective given they don't have any of the hurdles? >> they don't fully reflect the culpability of the petitioner's conduct on january 6 and they don't require the petitioner have acted corruptly to obstruct an official proceeding and obviously commissioner committed other crimes and seeking to hold them accountable for but one of the distinct strands of harm, one

of the root problems with the conduct is he did know about the proceeding and said in advance of january 6 he was prepared to storm the capital and prepared to use violence and wanted to intimidate congress and he said they can't vote if they can't read and they went to the capital in january 6 with that intent and took action including assaulting a law enforcement officer and that impeded the ability of them to let congress finish the work in that session and i think it's appropriate for the government to seek to hold petitioner accountable for that with that intent. >> and is it longer for this count than any of the other counts are all of them together? >> the statutory maximum is higher but after a recent decision in the circuit which held a particular sentencing enhancement doesn't apply, i believe the sentencing range for the assault count would be

a higher guidelines range and to give you a sense for typical january 6 defendant, somebody who doesn't have a prior criminal history and committed violent conduct at the capital accepting responsibility i think the average range or one that would yield is 10 months to 16 months of imprisonment or for someone else it would be six months to 12 months of imprisonment and we look at the average sentences which there are about 50 that have gone to sentencing on this and it's the only one so i think it is the best way to gauge it and this is when the enhancement applied so the ranges were higher in the average sentence was 26 months of imprisonment and the medium has been 24 months. there is no reasonable argument to be made that the statutory maximum is driving anything with respect to sentencing. >> i want to ask a clarifying question about the distinction and the decisions between (c)(1) and (c)(2) but i would make that stronger of what you could charge under the statute. as you pointed out just now (c)(1) has this additional mens rea requirement but there is overlap if you read otherwise

obstructs and broadly it would encompass the other reading things like alters or destroys or mutilates, et cetera but you wouldn't have to prove the extra mens rea and i thought i heard you say and i want to clarify to justice jackson earlier in the argument that the government couldn't charge an alteration or mutilation or concealing document of physical object under (c)(2)? >> correct . we usually charge the specific paragraph so if it fits under (c)(1) we charge and that and that would be the proper place to locate the charge. >> is that prosecutorial discretion or do you think the statute permits you to charge it under (c)(2)'s escaping the requirement? >> there is no distinction and it is the intent to obstruct. you are right that we don't

have to prove intent to mutilate a document but we do have to show the intent to obstruct the proceeding. this presses on what is a difficult question about means versus elements and i think the best reading of the statute is these are different because they have these different actus reus and mens rea specific to (c)(1) and they each talk about attempt but it's a hard question and if we charge and the wrong. accidentally we could usually say it was harmless error or recharge and the correct paragraph. >> let me ask you question. what if on january 6, the u.s. capital itself hadn't 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. >> you can. >> yes so if you assume congress went into recess and couldn't 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 don't 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, that's unlawful conduct if we have the proof. >> let's say i have a hard time

accepting your limiting construction of the verbs obstruct, influence or impede to have this extra element and tell me why i shouldn't be concerned about the breadth of the government's reading and just relying on corruptly in the nexus requirement, should i be concerned or would you embrace it and say there could be some implied first amendment challenges but could i be comfortable with that if that is what i think? >> you can be and you don't have to agree with us that a de minimis hindrance would qualify but if you think it qualified to any hindrance, there would be limits in the statute and obviously you have to have the official proceeding and i think the nexus requirement could be harder to establish in a circumstance where you don't think the natural and probable effect would be to obstruct the proceeding. you have to show the defendant knew the natural and probable

effect would do that and you have to show the corruptly mens rea and even if you could show that if it were a circumstance that did infringe on first amendment rights, there would be the backstop of an as applied challenge. >> do you think it's plausible that congress would write that that broadly? i think the justice alito's example of the protesters in the courtroom, let us say it is corrupted impede the proceeding because we have to go off the bench and things are stopped. let's say i think that is uncovered by the word impede then there is the nexus that it is corrupted and is it plausible to think that congress would write a statute that would sweep that in? >> yes. i think there are legitimate ways to voice that consent if you agree with that but one of the ways you can't do it is come into the courtroom and halt the proceedings and force them to leave the bench and do with the intent to corrupt the mens rea and congress could think that is a severe intrusion on the corruption of our government and a 20 year statutory max is just a max and there is no mandatory minimum.

they would recognize they would tailor the sentence to the facts of that offense. >> so you have emphasized several times that congress wasn't writing on a blank slate in 1512(c), but do you dispute it was writing against the backdrop of a real-world context? it was in the wake of enron and document destruction. you know, there was nothing, as far as i can tell in the history as it was recorded of the documents that suggested that congress was thinking about obstruction more generally. they have this particular problem and it was destruction of information that could of otherwise to been used in an official proceeding and could you give us a little bit more as to why we shouldn't think of this as being a more narrow set of circumstances to which this text relates? >> i would start by saying we

have course acknowledge the 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 couldn't 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 don't 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 evidence-based 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 don't 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. >> rebuttal? >> a defendant who tips off a grand jury witness or tips off the targets of a search warrant is someone who is certainly attempting to impair the integrity or availability of evidence and would be covered by (c)(2) just as somebody who creates a document and then that document is shown to counsel and they withdraw this mandamus petition and create

something that creates an interference with an official proceeding. i did hear my friend say twice in response to your questions, justice barrett in just a score such that it would cover peaceful protests as long as they could demonstrate that there was an adequate mens rea and nexus and let's look at what 1512 (f) said. it says an official proceeding need not be in pending or about to be instituted at the time of the offense and there is no nexus and congress has written that out of the statute right there and if the january 6 defendants came on january 5 and did all of the kinds of things they did, and maybe one would hope but if it did happen that way, we would still see a (c)(2) violation and with

respect to corrupting mens rea, justice kavanagh, you asked yesterday about the fact that mens rea only works at trial because the government's allegations are taken as true with a motion to dismiss stage and i think that is exact right and that is why it isn't a break or if it is any kind of break it is a break on a go kart and he wouldn't stick and it means that people like mr. fisher have to sit and go to trial and seek to win on a rule 29 motion because the government hasn't proved their mens rea and the same is true for first amendment offenses and if peaceful protesters are charged with that. my friend referred to 1503 and 1505 and other statutes and a number of the justices have pointed out there are much lower penalties for significant crimes and i would point the

court to 1752 which is civil disobedience in a restricted space which is what mr. fisher is charged with and that is a misdemeanor. if you cause substantial bodily injury, that is a 10 year maximum penalty and the government wants to unleash a 20 year maximum penalty on potential peaceful protests which, in and of itself is a bad idea because it will chill protected activities and people will worry about the kinds of protests they engage in if they are peaceful because the government has weapon. and, finally, i do think that we haven't touched very much on the breadth of influence and that some of the words used in (c)(1) as well and not only could be peaceful protests but it could be advocacy and all kinds of lobbying and those

things would be covered as well we pointed out in our briefs. finally, i would say to the court, let's not forget that civil proceedings are covered here and we would submit civil evidentiary proceedings. the government is suggesting that the court should unleash a 20 year obstruction maximum obstruction statute on civil litigation in federal courts. i do submit that is what we would submit that that is a very serious tool to put in the hands of prosecutors. we urge the court reversed the dc circuit. >> thank you, counsel, the case is submitted. >> the honorable court is now adjourned until tomorrow at 10:00. >> the homeland security secretary alejandro mayorkas is testifying before the committee

of the budget request for the homeland security department. we joined this in progress. >> trump said, i said, no, they are not humans. they are animals and this is dehumanizing rhetoric and wrong and unacceptable. mr. secretary, does this type of rhetoric fuel violence here in the united states? >> congressman, i will refrain from opining on the words of a particular candidate given the hatch at -- hatch act restrictions. >> we know that president trump has said he would immediately launch the largest deportation operation in american history. i want to note and talk about something that donald trump has tried to characterize as we talk about migrants. he and one of his main lieutenants as promised a large skill rate and suggested using troops even