as we could. this is an important matter. i think it's timely. i think you've heard from leaders around the world including in ukraine that this is done on a timely basis and the house had the time to deliberate in the right manner. i think we did our work here and i think history will judge at will. >> in a rare saturday session, the house today approved several foreign aid bills including funding for israel, ukraine and taiwan. measures passed a measure that would ban the popular app tiktok. watch the house live when it gavels back into session here on c-span. >> up next, the supreme court

hearor argument in fisher v unitedtas that could affect the january 6 cases against former president donald trump. joph fisher, the petitioner is chlenging a criminal statute used by the govnmt to charge him with a proceeding the supreme court has through june to have 202420 issue a ruling. -- 2024 to issue a ruling. >> fisher versus united states. mr. green? chief justice, may it please theou. congress enacted 1512 c in 2002 in the wake of the large-scale deruion of enron's documents. it prohibits the impairmenof the integrity or availabit of information and evidence to be used in a ping.

in 2002 congress hedged and ded section c2 to cover other forms of impairment, the known unknowns. it was the dawn information age. until the january 6 prosecutions, 1512 c to the otherwise provision, had never beense to prosecute anything other than evidence tampering. this cortez said when otherwise used in the criminal statute, means to do similar conduct in a similar y. the government would have you ignore all that or drd all of that and instead convert c 2 fr aatchall provision to a dragnet. o othe things that would cover his section c 1 that leaves c1 and c2 too independent work. the y 6 prosecutions

monstrate that there are a host of felony and misdemeanor crimes tver the alleged conduct. the enron driven evidence mping statute is not one of them. i welcome the court's questions. >> mr. green, how do we determine wha these provisions have in common. do we look after the otherwise or before? and why? >> look at before, justice thomas you look at the kinds of manner in which documents and records are to be impaired an you look after to see what the effect is. i would submit that the effect isheame. 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. oh -- so we look back and we look forward. >> wouldn't it be just as easy to look at the c 2 and ask what in common with c 1 as the -- and use c2 provisions as the >>o, because c2 speaks to the effect of the actions that the otherwise clause cover in oerords, we look at c 1 and see that congress is ncned about documents and records and other objects and things that are done to imir 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, flnce, and impede the official proceedings.

and that is c2. so why isn't that the basis for the similarity? >> because of the presence of the otherwise provision. so otherwise, as i mentioned, otherwise, the court said, needs too's -- means to do similar conduct in a differe. what we' g here is the impairment of evidence being done in a different way. >> i'm sorry. i thought, yes, doing it in different way. let me give you an example. e is a sign on the theater you will be kicked out of the theater if you photograph or record the aoror otherwise disre performance. if you start yelling, i think nobody would question that you can be expected to be kicked o unr this policy even though yelling has nothing to do with photograph or recording. the object that the verb is looking at, the rbare

looking at is the obstruction. it is not the manner in which you obstruct. it is the fact that you have obstructed. n't that the structure of this provision? it is. it is inarthe structure of the provision. but what yourypothetical omits is that there is a specic matriculation, i guess it is called, of all the differe sorts of things that might be done to evidence to begin with. >>xct what is fascinating about 1 that is not about 2 is that one doesn't reyou to have actually impeded the preceding. one requires youo ve that intent b y don't actually have to accomplish the intent. 2 requires youcomplish the intent so that is a very different articulation of what the object of 2 is.

the object of two is the actual disruption of the proceeding. >> i would respectfully disagree. >> why? look at the language new lights or -- mutilates or conceals a record. 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 ot have to have an actual proceeding i havimired. on two you need an actual proceeding to impair. >> i guess i am a little bit confused. as i read this, i would think athe 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 impairmt. >> no. i do think under 1 you don't need an impairment but under 2 you do. if y rd it, the verb

requires you to actually obstruct proceeding in 2. nowhere in 1 do you have to obstruct. >> in 2 you only have to attempt. to do the things that are in two. >> no, otherwise obstructs or attemp >> let's imagine we agree with you. government could take a shot at proving your client actually did try to interfere with or under c1, actually under c2, obstruct evidence because he was tr certificates arriving to thehe vice president' for counting so there would be evidence impairment theory? >> i'm quite sure that my friend would take a shot but i would say . the reason why is that this statute prohibits operation on

specific evidence in some way shape or form. attempti tstop the count or something like that is a very diert act than actually chging a document or creating a fake document. >> he is obstructing evidence of -- in my hypothetical. he's not actually altering the corrected myself. which is why i and said under c2. would that be different than somebody, saying a trial or criminal proceeding trying to previdence that was going to be introduced for making it there. -- from making it fair? i imagine him acting on the certificates, not the act of >> i think you could try it but i don't think talking about -- we are talking about trying to impair ytng other than the evidence itself. we are trying to obsuca proceeding. there's questions about wh proceeding means here.

as your honor knows. but wh government would essentially be doing as you noted is conveinwhat they harged in c 2 to a c 1 type of crime. >> no. maybe i'm misunderstanding your argument but i thought it was that c2 picks up otings but they have to be evidence related. in the hypothetical i'm giving, it is evidence related because focused on the certificates but ibstruct or impede the certificates arriving to the vice president's desk inss the goal is to shut down the preceding and therinterfere 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 tunrstand what kinds of imirnt we are talking about, we are talking about oroness is prohibiting the kinds of impairments that actuallyhae documents that affect their integrity. if it is jusimding or

delaying we would submit that actually, that is not part of 1512 s. delays are mentioned in five other parts of 1512. >> mr. green, if justice barrett is wrong what work is c2 doing? it seee you have ju n re-articulated only the theory oc1nd you are saying you have to make it into c1 in order to have the statute apply. can you heat least understand under your theory what anal thing does c2 offer? >> let's look at the verbs of c1 which are alter, destroy, mutilates,ndonceal. let's think about the antonyms. instead of destroying would be actually to ea. 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 i

you created a photograph tt established your alibi in some extremely sophisticated way that would get it admitted into evidence. or make it submitted for evidence i think. >> so you are sanghere are things other than particularly altering, destroying, mutilating or concealg t it has to be limited to a record. >> not necessarily. another example would be not to conceal but to disclose. if i disclosed a witness list in a large multi defendant drug trial, my purpose in doing at though i haven't altered the document, would be to intimidate the witnesses or prevent their attendance. that on our submission would also violate. >> can i ask you one other question so i can understand the eory? you keep using the term evidence. that doenoappear in the statute. 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 a different. so where does evidence come in in your theory and why is it there? >> the statute for the tampering -- refers to the tampering of witnesses, victims, and informants. alg th witnesses, victims, and informants comes evidence they provide whether in the form of testimony or documents. x i understand but the provision we are talking about ds't use the term evidence. instead, or in addition it uses term official proceeding which is elsewhere defined not in t of court proceedings or investigations, itjust a proceeding before congress. so is it your argument that the only this provision covers is something tantamount to evidence in an investigation or trial? >> it is. we are not limin our

position does not lit documents or records. i wobmit that c1 carries into c2. through the otherwise clause. it is pretty broad and it need not be as 1512 f provides it may -- need not be admissible. it could cover things like electronic records. it could cover communications. it could cover emails and all kinds of things we think get used by factfinders in a normally convened hearing. >> we will take you back -- >> just a quick question. what about the second circuit decision? what was involved was not evidence. it was a forged court order. with that fall within c2? >> yes. we think that does fall within c2.

anythi tt is falsified in this operative way that is used to obstruct a proceeding would be covered by c2. >> jusake you back to the question that justice thomas started you with. it seems there are two choices here. you can read this as oerse obstructs a proceengr otherwise spoils evidence. you are usinito say otherwise spoils evidence with spoils being all those verbs. it does not say that. it says otherwise obstructs a preeding. there are plenty of ways t write the statutes that you want to write. you could just say otherwise affects the integry availability of evidence in an official proceeding. you could combine official proceedingitevidence and otherwise. you could replicate the mens rea

th chas. there are multiple ways in which c2, in whi t drafters of c2 could have me clear that they intended c2 to also operate only in the sphere of eviden spoilation. it does not do that. all it says is 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. iss what justice thomas said in the beginni. what is this otherwise taken -- taking from c1? of course there is commonality involved in an otherwise but what is the commonality that it -- thac2s drawing from c1? it tellsouhat the commonality . the commonality is that the ings that fall into c2 also have to obstruct, influence or impede. but what c2 does not say is that

everything in c2 also has to spoil evidence. >> this court has said that otherwise in a criminal statute means similar conduct. >> similar conduct. obstruction of a proceeding. different ways of carrying out that similar concthich is obstruction of a proceeding. e statute tells you what the similar conduct is, right on its fa. >> respectfully, justice kagan, the statute tells you what the effect is. the conduct that is specified in c1 is alteri, stroying, mutilating, concealing a document or other object. so dft of the statute could -- a drafter othstatute could easily omit somethinli that and would omit something like that for the sake o economy. and also to hge, because we know that what comes before might not be exactly the same as ter. we are not going to repeat what we saithe, 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 -- please. what is your best case for this going backward and trying to find language thado not appear in the otherwise prisn and trying to incorporate it into the otherwise provision? >> that is our best case for sure. >> that is n aery good advertisement. at this does is exactly that. you have a good case there and it was a complete failure. they said we look back at this thing congress did, did not use in the otherwise provision and we derive various things from it and weutt in. it was purposeful, violent and aggressive. a few years later we said wre did that come from? we made it up and wget rid of the whole thing. that is not a great

advertisement for rewriting a statute to take an otherwise provision and turn it into an otherwise provision that says something else. >>e uld submit that that was aggregated on other grounds. and that washeembers of the court could not decide between an assessment of the types of things that came before otherwise versus the level of ri. when that began to play out and -- in complicated cases like chambe a many others involving escape from a halfway house. itecame, the court said, an untenable proposition to figure out what a potential hm another person mig blooking at what came before. >> i am sorry. finish your sentence. >> that does not mean that t court's holding about how to construe a statute witanto

fill holding was otherwise was aggregated in itself as a result of those cases. i'm not a fan of the ce. some of us perceived at the time that thereerdifferent problems with with theous did. but i think there is a point that you've been having, the specific types of conduct that are enumerated, alter, destroy, mutilate, conceal, destroy documents have twohis in common. one, they all inlvdocuments or objects. they also all involve impairment of the object integrity or availability for use in an fial proceeding. e similarity could be either of those things. i think that you may be biting off more than yocachew by suggesting, y are indeed suggesting that the otherwise clause can only be read the way

u ad it. one might say it certainly can be read the way the goveme reads it. that might even be the more straightforward readg t it is also possible to read a clause like thisornarrowly and judge katz has provided an example of that. in his opinion. if you hava atute that says anybody that kills or injus assaults someone that otherwise causes serious injury you ul not thinth applies to defamation. so it could be read your way. so then i think you have to go on to some other arguments and explain w yr reading is better than the government reading. >> certainly. i would submit that the e plenty of other reasons why our reading is the better reading. i'm nogog to contest or bite off more than i can chew and say that the government's ading of c2 is implausible. we think iis unsound, but for

the additional rean at looks like -- at what the prohibited conduct is. in 1512 we are generally talking about the interference or operation on forms oevence and testimony that obstruct a proceeding. that is what 12 is all about geray. i would suithat as the briefing indicates, those two venerated latin canons also operate in our favor here as we athe broader context of chapter 73 and section 15. all of these things are about ing things that obstruct a proceeding. 1512 and 1512 c zero in on that. witnesses and evidence. >> you have other arguments. you have surpl auments. you have arguments about the breadth of the government's

reading of the provisions. do you wantoay anything about those? >> with respect to surplus, i would refer tjue cat's opinion like you did. particularlyn page 88 of the joint appendix the list different provisions in 1512. 15 of the 21 b would -- would be subsumed by e government reading of c2. that rdi is so broad it would cover anyone that does something understanding that what they ardog is wrong in some way that in any way pes, influences, or obstructs an official proceeng of any type. >> mr. grain. >> not limited by federal. >> there is a good case that everyone knew the provision would be superfluous because it was meant to function as a

backstop. it was a later enacted provision. congress had allhetatutes all over the place. it h jt gone through enron. enron convinced them that there wereaps in the statutes. they tried to llhe gaps that -- and they found out about one gap in enron and they said, this a lesson to us. there are probably other gaps in the statutes but they didn't know exactly what the gaps were. so thesa, let us have a backstop provion 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 gd argument when congress specifically devises a backstop provision to fill gaps that might exist. they don't know exactly how ty exist but they think that they probably do exist in a pre- existing statuto seme. that's wh ts provision is intended to do. >> respectfully, your honor.

a cle ading of yates both the majority and dissenting opinion demonstrate that the cot ought that 1519 was the backstop. that wasupsed to be the omnibus provision. the court was fighting over what the meaning of tanblobject was in 1519 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 -- destruction of evidence. how are they different? ey are really not. you canoi to any series of any provision and point tsur fluidity in this section. 1512 and otherwise. so we go back to justice kagan's

position which is, what you don't have is a freestandi otherwise obstruct, influence, or impede any official proceeding. i do not see why tt not the backstop congress would have intended and it is the language it used. >> it is an awfully odd ple put it. in a subsection of a subsection in t mdle back of a statute to include that provision. >> there is nothing autthe one thing justice kagan pointed to which is clear they wanted to cover every base. they did not do that in a logical way t they managed to cover every base. >> i think you can reconcile, that is what theou said about 1519 in yates. i don't derstand how the government can come before you and say we need another catchall, another omnibus that would sweep in a kds of others. we did not get what we wanted so

now we go to 1512 and see if we can expand that. a cover something it has never covered before. >> justice thomas? justice alito? justice sotomayor? >> wha never had a situation before where there has been a situation li ts with people attempting to stop a proceeding violently. i am not se at a lack of history proves. >> i'm not sure that is true. i would point to hatfield and courthouse problems in portld, oregon. let's also look at what the court has said in so many different cases. in dubin, in yates, and kelly. bond. all of these -- >> there was a difference there in the use of words. here, otherwise obstrts influences, impedes might have a problem with breadth and the

government can address that, but it is on -- not unclear what the words mean. but the government has no way to address that. >> we can let them ans >> justice kagan, justice kavana >> if it were he language in c2, and so said whoever obstctnfluences and impedes c2itut the word otherwise, the whole provision, do you acknowledge the language would then be appliedrorly to a situation like this? >> unfortunately no. threon for that is that again, applying all the other canons and applyg e whole text canon and zooming out and looking at 151weould submit that c2 should still be read in the way we have suggested that it be read as something that is anvince impairment statute. think also as i mentioned the latin canons all of those would

still obtain iits there by itself. without the otherwise. the otherwise is thicg on the cake. finally, justice kavanaugh i would mentioas did to just a --ustice barrett. >> if you did not have c1 and just head c2 without the otherwise. not sure ii s clear on that. >> 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, implausible, or plausible but broad readings of criminal statutes not being with the court adopts when there is available narroreing because congress can fix that, we would stl say that c2 does not perform the massive dragnet function that the government submits. >> thank you. >> justice barrett? >> i have a question about the phrase in c1 to agree to

-- do you agree that it is specific intent? what is your view of how tt parenthetical applies if at all? do you think that requirement -- the intent requirement carries over? >> the intent requemt? corruptly? >> not corruptly with the intent to impair the integrity or availability for use in an official proceeding. >> yes we do. . >> it carries over. >>e uld say that is the object of the overarching mens rea. how can that be. seems like c2 would read oddl it would be otherwise obstructs, influences or impedes any official proceeding with the intent to impair the integrity or availability for use in an fial proceeding. that would be youpotion of how it would read? >> i think that is right. i awkward, there is no doubt it is an awkward statue but if you do the operation i talked about earlier, which is we are just going to use heise to

replace the verbs and nouns in c1, bennett it makes, the statute makes perfect sense. wi rpect to intent, your honor makes an excellent point which is that this intent is a specific form of ienthat corruptly, which has been construed to bthmens rea up there, is not different at least on this reading is not different orn the accepted reang from the d.c. circu judge, is not different from specific ien >> so corruptly is redundant? >>t seems like it is getting to be. at is true. our submission is that corruptly could meanomhing different. so should proceeding. that is how you marry 1512 with 1519. >> justice jackson. x i am sti wdering if your theory about the provisionig be too narrow in a sense because you have evidence going. what i am trying to work out in my mind is whether you would

still have dent argument if this 1512 language is read to prohibit the correct tampering -- corrupt tampering with things that are used to conduct an official proceeding with the intent of undermining e integrity of the thing or access to the thing a treby obstructing the proceeding. it's not just evidence. it'anfficial proceeding. c1 is an example of the corrupt tampinwith certain things. c2 broadens it out a bit. it is not just documents and records. what do u ink about that? >> i think that is a correct reading, yr nor. as 1512 f demonstrates, that -- 1512 suorts our position. the evidence need not be admissible or free of a

privilege claim. what wldhat mean about the statute if iisot evidence? c2 has been applied d occasionally c1 has been applied -- >> in a non-evidtiy way. >> yes. to things that could become idence. an effort to shape somebody's grand jury testimony. >> let me ask you about the question tt the justice asked u before. you suggested that it has to be to the document. in other words, the activity has to be actually to the docume. i do not know why that is the case under c justice alito says that one of the commonalities could t impairment of the objects into raggedy -- integrity or availability. justice barrett posits that you have someone impairing the availability by doing something to prevent the object om getting to the proceedi.

why wouldn't that count under c2? this is preventing congress from counting electoral votes. let's say it iinn envelope going to the vice president's desk a someone does something to impair or prevent that from happening. why isn't that what c2 could cover? >> first, it is not affecting thingrity of the document. >> availability is also in the atute. >> as i mentioned earlier, simply delaying the arrival of evidence to the court -- >> not delaying. let's say the person steals the envelope. >> then it gets harder. if you steal the envelope and rip it up, bed is not what happened here and not in the indictment but the balance in the vote count is't in the indictment. >> we wouldn't have to decide at. we could send it back and arify that that is what the statute means. i am trying to understand if you agree that that's whatt uld

mean. >> i do not agree. why not? the reason is, if you look at 1512 it's out a direct fact or -- fact or in some sense, an indirect effect but in a limited way, on evidence that is to be used in a proceedg. >> so as to limit its availability. wh i'm suggesting is in situ, if you a dng something to -- if you are doing something to limit the availability, why doesn't cnt? >> we are limiting the availability of its use by a factfinder in a proceeding. that is what -- the way to marry 1519 which covers all kinds of instigations and all kinds of other events with 1512. 1512 is talking about even that is going to a formal convocation. i'm kind of arg before the congress or before any other body. >> thankou thank you, counsel.

general. >>r. chief justice and may it please the court. on january 6, 2021, a violent mob stormed the u.s. capital and srupted the peaceful transmission of power. -- transition of power many crimes occurred but in plain english the fundamental wrong committed byanof the rioters iluding petitioner was a deliberate aem to stop the joint session of congress from certifying the results of the election. that is the -- obstructed congress's work in that proceeding. the government charged petioner with violating 1512 c2. the cases that come to this court prese a straightforward questi ostatutory interpretation. did petitioner obstruct, influence, or impede a joint session of congres the answer is equally straightforward. yes. he obstructed atroceeding. the terms of the statute unbiously encompasses conduct. petitioner does not really argue that his actions fall outside the plain meaning of what i

to obstruct. instead he asks the court to impose an a textualim on the actus reus, because in hisiew c1 covers tampering with documents and other physical evidence. the separate prohibition in 1512 c2 should be limit tacts of evidence impairment. that limit has no basis in the te or tools of construction. s reading hinges on the word otherwise, but tt rd means in a different manner, not in the same manner. the prohibitions in section 1512 c2 are not unified itemsn e list where you could apply associated words cannon. they are separate provisions. ey have their own sets of rbs and nouns. they prohibit attempts which would be duplication that mak no sense on petitioner's reading. congress includ distinct mental state requirement in c1 that it chose not to repeat in situ. section 1512 c2 is not limited to evidence impairment. instead it is a clsi

catchall. c1 cover specified acts in an -- that obstruct an official ocding and c2 covers all other acts tt obstruct an officialroeding in a different manner. the court should say so and allow the case to proceed to trial. i welcome the courts questions. >> there have been many violent protes tt have interfered with proceedings. hathe government applied this provision to other protests in the past and has this been the government's position throughout the lifespan of the statute? >> it has certainly been the governn's position since the enactment of 1512 c2 that it covers myriad form of obstructing an official proceeding and is not limited to someinof evidence impairment. >> have you enforced it ith manner? >> we have enforced it in a variety of psetions. at do not focus on evidenc tampering. i cannot give you an example of enforcing it an example where

people have violently stormed to building specified other than the current with all of the elements like innto obstruct, knowledge of the proceeding, havingheorruptly men's real but that's becaus i'm not aware of that rcumstance ever happening prior to january 6. just to giveou flavor where we have prosecuted under this provision,orxample there are situations where we brought c2 charges cae somebody tipped off the subject of an investigation to the hearings. there was another case where somebody tipped off about th identity of an undercover law enforcement officer. in those situations there is no ecic evidence, no concrete teimy or physical evidence that the conduct is interfering with. instead it is more general obstruction of the proceeding. justice alito mentioned a case as well that was a forged court orde it prompted the litigant to dismiss the petition but that did not have anything to do with the evidence that was going to be considere >> so what role does c1 play in the analysis? >>e understand it to split up

the world of otrted conduct of an official proceeding. into the c1 events and into c2. c1overs everything and enumerates. it's the acts of alteri, concealing, destroying records, documents or other objects. c2ould only pick up conduct that obstructs an official proceeding in dierent way. there is no duplication or super fluidity in our meeting. congress was to fighting this up -- dividing this into two separate offenses. that is actually a virtue of our reading as compared to petitionerbeuse of not hurt -- i have not heard him articulate anything th would fall within c1 that would on -- wouldn't also come within c2. >> in the way you are reading it, c1nd2 almost exist in isolation. certainly not affected by c1. >>e n't deny it all that eris a relationship. the relationship is the one congress specified in the text.

it follows the word otherwise. that is e levant degree of similarity. c1 and c2 have in common that they are aimed at conduct that obstructs an officia proceeding. c1 does a one-way tampering with records and documents. ds so with respect to other conduct. but in a different manner. this has to be the road the urgoes down to look at what congress actuallprcribed in -- because in contrast if you take the petitioneintation to come up with some a texal loss from c1 to pour or to c2 i don't understand that the -- what the court could look out to guarded the determination on what the relsimilarity would be. >> i'm sure you have had a chance to read our opinion friday. it was unanimous and very short. it explained how to apply the doctrine of used and generous. what it said is that specifi terms a more ger catchall term at the end. it said that the general phras controlled and defined by

reference to the terms they have tt precede it. the otherwise phrase is more general and the terms that precede it are alters, destroys, mutilates, or conceals a record and docume. applyi t doctrine as we set forth in that opinion the ecic terms alters, destroy, mutilate, carry forwar into two and the terms record document and other object carryforward well. it seems to tt they sort of control and defined the more general term. >> mr. chief justice, -- >> sorry to interrupt. the otrwe means in other ways. te, destroys and mutilates a reco, cument 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 t typical statutory phrase that

consists of a parallel list of nounor pall list of verbs where the court has applied and used in generous for the canon. these are sepaterohibitions that have their own complex nonparallel internal structure. i think actually, the best evidence thaisard to figure out how would you define the simiri between them is that based on the word otherwise ishathere are multiple interpretations in this case. justice alito reflected on them in the compeng interpretations between judge katz's and judge nichols. >> competing interpretations of what? >> that relates to the question you have asked me which is that judge nichols thought that c1 should limit c2. he said the relevant thing about c1 is a deals with records, doments and other objects that means c2 should be limited only to other acts that impair physical evidence. judge katzmannadooked at the requirement that tas actions that imprs the ability or use

of evidence and he defed a broader gloss. >> they are applying the sam doctrine of different aspects of it. i think you do that as well. alters, destroys and mutilates are e mmon elements. what if you are doing and wha you are doing it too. you apply both of those as it is said, ntlling and defining. it should involve something that is capable of alteration, destruction and tition. with respect to the record or document. >> i don't even understand -- >> 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 iis standing alone. because it does not. >> let me respond to that in two ways. i wanted chance to address any concerns.

the more fundamental point is that i don't even underan petitioner to be suggesting you can mix and match the verbs and nouns from c1 and c2 ts way. judge nichols haa re limited view that c2 exclusively focuses on physical objects and would not apply tthgs like testimony because of the limitation. judge katz may be in line with your question but interpret that more broadly. the basic point of the textual matter is that there is nothing in the text of c2 to disclose wh the relevant similarity c1 ought to be. i inthe relevant similarity is obstruction of an official proceeding because that is the >>f that is the case, what work does otherwise due on your theory? because i think, as i'm hearin you, i might think that whoever corruptly obstructs, influences, or impedes any official proceengr attempts to do so stands alone. the otherwise, i am not hearing what work it does.

and you explain? t work that otherwise does is to set up the relationship between c1 and c2 and make clear that cdo not cover the conduct encompassed by c1. i acknowledge that -- >> beyond th. beyond saying that ok, c1 do me things and the whole rest of the universe obstructing and impeding or influencinis conducted by c2. is that a fair summary? >> yes. but there was a good reason for congress to do ith way. >> i understand that. >> statutory histo. >> if i might, what does that mean for the brethf this statute? would a sit-ith disrupts a trial or access to a federal courthouse qli? would a heckler in today's audience qualify, or at the ste of the union address? would pulling a firearm before a vote qualify? for 20 years in federal prison?

>> therereultiple elements of the statute that manobe satisfied by those hypotheticals. it relates to the point i was trng to make to the chief justicebout the breadth of the statut the built-in limitations are the things i think would potential suggest many of those things wouldn't be something the government could charge are approved as 1512 c2 beyond a reasonable doubt would include thfact that the actus reus does not ilu -- require obstruction which we undstd to be meaningful interference. that means if you have some minor disruption or delay or minimalutburst -- >> so outburst requires the court to reconvene after the procdi has been brought back into line, or the pulling of the fi alarm, the vote has to be rescheduled or the protest ouidof the courthouse makes it inaccessible for a period of ti. are those all del felonies subject to 20 years in prison?

>> with some of em it would be necessary to show xuwith respect to the protest outside. you would have to show -- >> they were trying to stop the proceeding. >>e uld also have to be able to pro ty acted corruptly. that sets a stringent mens rea. this is not even just the mere attempt to disrupt. we have sw they had corrupt intent acting in that way. >> we went around that tree yestda >> i know. i heard the argument yesterday. what i would say is the extent thathe hypotheticals are esng on the idea of peaceful protest, even one that is disruptive, it is not clear e government would be able to show that each of the -- >> a mostly peaceful protest that actually obstructan impedes an official proceeding for an indefinite period would not be covered? >> not necessarily. we would just have to have evidence of intent. >> they intend to do it all right. >> if they intend to obstruct and knew it was wrongful cduct then yes.

>> what is corruptly in your view? >> it adds the requirement of the defendant's conduct being wrongful and committed with consciousness of wrongdoing. this relates to where the court said this aerm with the deep historical roots and a subtle meeti, nnoting not just knowledge of your actions whh is the attda -- intent to otruct but requires it be do corruptly. just to give you a more concrete example of how ts s played out in the january 6 prosecutions, i would point to the jury obstruction in the robertson case which we refer to in the brief, the ryas instructed that in order to show that the defendant act corruptly they had to conclude at he had an unlawful purpose or used unlawful means or both and had consciousnesof wrongdoing. i think that is anncsulation 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

that justice gorch provided. we had a number of ptes 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 anth shout either keep the january 6 insurrectionists in jail or free the patriots. and as a result police officers have to remove them rcly from the courtroom. let's say it delays the proceeding for five minutes. i do know that experienced advocates like you and mr. green n't be flustered like bthat but in another case, an advocate might loshior her train of thought and not provide the best argument. would that be viation of 1512 c2? >> i think it would be difficult for the government to prove that. at the outset we don't think

1512 c2 picks up minimal de minimis minor appearances but it denotes a meaningful interference with the proceeding. it doesn't say, i am sorry. c2 doesn't refer just to obstruct and it says obstructs , influences ormpedes, and impedes is something less than obstruct. >> i think this is a verb rase where iteration was afoot. >> ok. thpln meaning, 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 t w with of the progre oor to hold up and the oed it is to retire -- retarinrogress or action by putting obstacles in the way. it doesn'require obstruction . it requires requires the causing of delay. again, why wouldn't that fall

-- and you could say well we won't prosecute that. indeed fm l the protests that have occurred in th court, the justice department has not charged any serious offenses. i don't in any one of those proteste h been sentenced to evenneay in prison. but why isn't that a violation of 1512 c2? >> we read the actos nereus -- acs reus more narrowly. maybe you can look at the brder definitions and adopt a broader understanding but er would still be the back step of needing to prove corrupt intent. >> it is not corrupt intent. it's wrongful and do you think it isn't wronul? i could imagine defendants in that scenao ggesting they thought they had some protected free secright to protest or they were not nsous of the fact the one about to make that -- they weren't allowed to mak that brief protest and i think it is a fundamentally different posture than if they have stormed into the courtroom and ovrun the supreme court police and required the justices and other participants to flee for

their safety and did so with clear intent. >> absolutely. whatapned is very serious and i am not equating that with that. need to find out what the outer reaches of the statu under your interpretation are and let me give you another example. yesterday protesters blocked the golden gate bridge and disrupted traffic inanrancisco. what if something similar like that happened around the capital mbers come all the bridges from virgia re blocked and members from virginia who needed to appear at a hearingoun't get there, or were delayed in getting there. would that be a violation of this provision? >> it sounds to me le wouldn't satisfy the proceeding element or nexus requirement. >> why not? let's say they want to get to the capital to vote. >> if we had clear evidence that thpurpose of the protesters who set up the blockage somewhere for some distancaw from the court because they had a specific proceeding in mind,

but maybe you have the proceeding but theou required an exssnd that is a quirement in other cases like arthur anderson where the cot 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 obstruc there has to be a relationship and time csaon and logic but the other thing i would say is at there are other obstruction provisions including in 1503 and 1505 the tax statute thaus exact sameormulation of the courchacterized as an omnibus clause and never suggested to be subject to an evidence gloss. so there are concerns about hypotheticals but your question out what would happen in this courtroom would be covered by 1503. m turpinhi narrowly isn't gointoure that. l me give you one more exame. an attorney is sanctioned under rule 11 of the federal rules of civil procedure by filing

pleadings, written motions, or he papers for the purpose of using unnecessary delay or needlessly increasing the cost of litigatn. and in a particular sehe judge imposes rule 11 sanctions and says this caused a lot of trouble and i can tell you it caus a least workdays for me five personally,llf this unnecessary paper. dayed the progress of this litigation so i imposing rule 11 am sanctions and why doesn't that fall into your interpretation of the provisn? >> congress created a sa harbor and it's reprinted in the appendix of our brief that specifies advocacy legal representation conducted as part of the proceeding shouldn't be unrstood as obstruction so congress trying to draw lines around participation in a proceeng versus external forces that obstruct a precision -- >> it falls within the language,

does not it? >> what kind of evidence do you typically present in these january 6 cases to prove the corruptly element? >> the january 6 psetions require us to show first that the defendtsad knowledge that congress was meeting in the joint session on that day. we have to show the defendant specifal intended to disrupt the joint procdi and with respect to using unlawful means with consciousnessf wrongdoing, we focused on things like the defendants threat of violence and willingness to use violence here. and we allege that they assaulted a police officer are -- and we focused on preparation for violence, bringing tactical gear or paramilitary equipme to the capital. i want to emphase at this is a strge mens rea requirement that has cstined the u.s. attorney's office. we charged 1350 defendtsn -- with crimes committed on january 6 but only had the evidence of intent to bring charges against 350. >> how do you decide which dendts get charged under

this statute as opposed to not? the dividing line has hinged on the evidence we have intent so we are looking for clear evidence that e defendant knew about the proceedings happening in the joint session in congress that day and clear knowledge of the official proceeding. we look for evidence that they specifically intended to prevent congress from certifying the vote and used his actions to obstru tt and also as i mentioned, the knowledge of wrgfness or unlawful contact -- conduct could come about with respect to preparations the defean made. there are cases where even though we thought we had the evidence beyond a reasonable doubt, there have been acquittals because there was testimoncrited that the defendant not the proceedings -- thohthe proceedings were over and didn't intend to obstruct or one person thought and said he thghlaw enforcement was inviting him in and even in situations where we think we have enougevence, we haven't been able to sustain convictiause of the stringent mens rea. >> can i ask you your

obstruction theory? you said youee512(c) as dividi t world of obstruction and the nexus between 1 and 2 is the official preeng and the obstruction of an official proceeding. i guess what i'm concerned about 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 -- obstructing an official proceedi, like killing or threatening or intimidating wiesses is covered. if wre c2 to be obstructing an official proceeding, i don't understand what happens to the rest of those provisions. >> to the extent you were pressing on the idea that there is a surusi don't think it's true. there is overlap or duicion and that'true on both readings in this case. in pt may even be more true on petitioners reading because he says c2 is likewiseocused

on ways to obstruct, interfering with testimony and duments. so that same duplication will be present in hiseang but with respect to superfluity our interpretation doesn't create technical superfluity because each of those provisions y cited covers situations that 1512 c2 wouldn't cover and er are three distinctions. some of them have less than a corruptly mens rea and it could be violated in a way that wouldn't reque e government to prove corruptly and it may ane can charge particular applications of those provisions under them and not c the second is that some sep more broadly in a wider range of circumstancesohat lets us charge in those situations where we can't ove the official proceeding element and then third d nally some of them have a higher penalty specifically because they targ mo culpable conduct like the

15a, the one you referenced about killing a witness and there the government would charge under that provisio penalties than c2. to higher >> with the government necessily lose in the sense they wouldn't beblto bring charges against some of the people that yoha described with justiceag if we looked at c2 as being more limid d perhaps not all the way to evidence, but relat tconduct that prentand obstructs an official proceeding insor it's directed to preventing preventing access to inrmion or documents or records or things the official pceeding with use. i explored with mr. green the idea that to the extent that there were people who knew the votes were being counted that they and that is done in a documentary way in our system, they are interri by storm in

the capital might qualify as a document interpretation. quickly he would likely be viable charges. in the last ofurrief, we preserved an argument that we could satisfy even an evidence related understanding in part because of the conct being ableo be able to survive the results of the election. we obviously need to evaluate whether these charges can ve forward based wtever these court said. those that came to the capital and engaged in this criminal conduct from where it had to be counted acted as intent --

>> the district court had a differentariation from the statute and how to read it. he started to explain that to the chief. could you do it if you accepted the district court view? i presume you could do it if we accepted below. what is your wholeesnse to justice jackson? justice jackson assumes that the. >> i thought justice jackson would proposen en broader view including focusing on the availability part. that could qualify. i think it becomes potentially harder on the judge'view and especially hard on the jue nichols view. that is because judge nichols

seems to think it had to be limited to taking action with respect to the documents themselves and that would be a difficult standard for us. >> it is clear you and dorothy robinson view. could you tell me what you feel abt e walkerieand doug walker being part of the majority board? >> yes. judge walker declared an idea s to turn exclusively on the governmentei able to show the ability to secure an unlawful advantage for himself. we agree tt is one way for the governnto prove corrupt intent. it is the way it has traditionally beedeoyed in the tax conduct -coext. i think it would be incre to suggest that was done incorrectly.

there are variou other ways we might have evidence as we think we do here, unlawful means committewiin the consciousness of wrongdoing and there is no weakness within the commweth. also limit the gernment availability to prove it with that one specificay does walker redo it. >> it appears to bth fear that reading the government' view of stday's case today would make it so broad that sohow that presents a problem. that gets addressed in the word correctly. but neheof those two issues were resolved because that wasn't the question. >> that is right. the only issue that gets resolved with the meaning of the t. quick the only issue between us

is whether we read the words -- how we read these words. >> that is rhtut i don't want to lose sig othe fact that there are inherent constraints built to the other elements of the state the nexus constraint is a really itical one. it is that constraint that the court has what to do to make sure that they don't eatoo broadly about every deck conduct that mig bcoming out of the world. it is all wi t official proceedings and we think that some very high bars are sety the fact that it is sent to justice kagan. >> thank you. >> are you putting a balance requirement? itee like you kept emphasizing the aspect of vience that was present on january 6. am i understanding you?

>> we think that ia requirement. i think it will clearly be eaeror us to satisfy when we went actn u're like assaulting a police officerr unlawful conduct. what i was trying to say iin situations where hypotheticals imess upon the idea that people are engaging in conduct, they might be wrong about that. there might not be a first amendment right they think they have. that would mean we could impro anroven obstruction charge. quick thank you. i am not quiet sure i understood the answer you gave earlier about whether or not you've previously used c2 in this type of case. have you done that before were not? course we have chargedhe situation that is not involved this evidence. it covers a miad of ways of

instructing. am not aware of any other factual circumstance around the world where we could have proof on the elements beyond the case where we brought this prosecution. quick to so i understand, the prosecutnsre eliminad in what way? ty are for things that people hadn nd for official proceedings. i is for protesting a branc of government outside this court. and also to show an inte t obstruct the proceedings and the nexus to the proceeding and that can take care of situations where maybe someone could do this in a differt ilding. >> in prior cas you have applied c2 should the situation. not involving specific duments question mark? . things like the identity of an undercover officer or creating if the court order that had nothing to do with the evidence in the case but is just prompting the litigant to discuss this. >> your friend points tan

office of legal counsel. 2019. i hav't looked at it yet. it is consistent with the judge's opinion -- judge's opiniobew. requesthat was never adopted as a formal position of the department of juste that arose out of the special counsel investigation and those that involved the office of the presidency. it is suggested that maybe it could be understood more narrowly it did not represent any formal adoption of deposition. >> what constitutes a formal acceptance of policy opinions >> as you probably know t awer to that one. what i c tl you is the reason i am saying that is i--

it covers the full range of obstructive condt. it ultimately just post on the issue. >> thank you. grace you said as i understand it that you have applied c2 in previous cases. >>hais right. we applied in new cases that do not affect the model here. it is the on the bus causes of 15 at three, 15, 70 12. these are statueth use the exact same. >> tt fine. c2. the specific instances that you have used c2, you seem to think -- argue that c2 is a standalone

provision. >> we think it covers the full range of obstructive conduct limited by the requirement. >> if you have ali c2, had there been other previous ur of appeal? >> yes. and the uniform conseusmong the court of appeals has been that c2 is not limited by this kind of evidence impairment. there has been no court of appeals that has gone the othe way despite what has been recogniz lking at the plain language of this provision. >> much of your argument seems to hin on this being fairly clear. your interpretation of c2. >> yes. we think we have the best of the aiext. >> if i happen to think it is morembuous, what would your argument be? >>hat i would say is i think

ifou lookt the terms and the statute themselves, the plain language of the statute supports our view but it doesn't end there and i have mentioned several times the otr provisions of 1503, 1505. but we thinth has been really relevant. congress has been itg on a blank slate. it is not like it just -- that was taken out of the ether. th was a well-established term for instruction law. when congress takes a phrase like that, it brings soil wi it. congress has clearly not this court and threrds have interpreted those other statutes to encompass the full range of obstructive conduct. that is constt with our president i mentioned to you earlier. i inwhen you put it altogether, there is no al ended with here. we clear he the best meeting. the icing on the cake is that if

congress wanted to write a statute that focused only on evidence, there was a clear and obvious way to do it. congress could have just tacked on a residual that said it otherwise impaired evinc it would not have used theer that had a well-settledeeng more broadly to y onvey that type of limited scope. itould be nonsensical for congress to draft that way because it would be so readily misunderstood. every we court has understood congre to legislate more broadly here. >> there is a nttual argument that you seem to issue in this case. >> i think the statutory context -- context it does bear weight re we think the roots of this language in this other of social provision fortifies how the court has always understood the plain language. >> you are do that there is an

exception that only has a minimal effect on official proceeng where does that come from the text? that comes fm e verb phrase obstru, fluence o impede. that talks about blocking, hindering, persistently interfering with. the verbs themselves we think inherently contain this limitation. >> there can't be a minor imdiment? >> as glally matter, maybe but we think if you look awh congress has been trying to do as a whole, the lead term re is obstruct. i think that adequately conveys an idea that this does t qualify. w uld you define a minimal interference? i ppe the jury would have to

be charged on that in order to prove the person violated this provision. you must find a person intended to cause more than a minimal interference. how would you fi it? ithis came up, i think i is possible theou to decide as a mteof law. maybe there could be gat areas -- gray areas about the nature of the obstruction. >> what about the example i gave dee about the example of the five protesters in the courtroom? is that minimal? >> it sounds minimal to me and itounds 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 tompe. show less text eslet me just ask you a question authat. suppose someone commits conduct

that falls squarely within 1512. you have a square, a clear violation of 15 12 d punishable by mode -- no more than three years in prison. when congress added 1512 c2 which does that -- you can find is person for up to 20 years. >> there is a key difference between 50 and 12 b and 15 12 c. this is to prenthe testimony but i think trere certain factual scenarios.

i do want to be first -- responsive to the broader term. no matter which statutes the government charges under with respect to all of the relevant obstruction stut, they would be funneled through the same sentencing guideli sit wouldn't make a difference with respect to senncg and the concern you have with the hypothetical arises on petitionerreing because everything covered in 1512(d) falls th impairment mitions so the existence of a maximum there is no minimu should drive intuitions about how to interpret thiprision. >> i am not sure that's the correct teretation of 1512(d) and how about be and it is consumed by the other. >> i thinkhe is an overlap between the two and i d't deny that and it would be true in either reading becsene 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 wod satisfy a corrupt intent definition. >> really? you think you could corruptly lead someone? i don't understand. >> my recollection is there ar multiple means of carrying out that offense and threat being more corruptly that was what i refeedo earlier but another way could be through intentionally misleading somebody that wouldn't necessarily e corrupt intent. >> thank you. one more question. i was struck by the contrast

that the court should adn a minimal exception with the argument that you made earlier this tm d muldrow versus the city of st. louis where the question was wther an adverse emoynt action had to be significant or not and you said it doesn't have to be significant because the text like white admits no distinct which thatests in a significant or insignificant disadvantage so you told us --

that applies throughout all the various legal statutes that are out there, not anything like at. 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 yo befs? >> we cite the case where grand jury was tipped off about e existence of an investigation but there was no materialmpt are clear evidence of impairment of the evidence or availability of testimony or physical documents. ere are a number of cases including and i don't think we cited but it includes disclosing the identity of uercover officer. show less text >> where do i find those? >> we would have to supply additional citations and i belie ey cited a range of cases and made clear they did'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 thsa thing that 1519 will do. that is a question i have for you and the other question is you refer a number of timeso other provisions. 1503, 1505 and 7212. if we go downr.reens road in terms of other limits from other places in this ate, or any of those likely to be challenged t same kind of way, or are they written sufficiently differently so we wouldn't have to worry abt that.

i don't think thedea is that 15 was the blood catchall. they could not in any way be squared with what they said. instead, i think that the example to draw from or the example to learn is that congress is plugginghe specific goal in the enron scanl. this is where th court was sensibly locate isroader provision. with respect to the qstn --

about the other stus i would be concerned about that. the language, the verb phrase is on a different order sometimes. the relevant verbs would be similar. there are direct objects there. in 1505, it is the administti of the congress. it is not clear to me whether defendants missy to trto artificially limit those causes beyond two terms even though these kinds of provisis d been in the instructional and they had ner been understood. quest theeyword and that is otherwise. and trying to figure out what that means under our established

printable's statutory interpretation. they accepted and the other so i -- and let used the broad phrase of catchall. that 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 -- >> the courtasaid many times it is a natural way for congress to create a broad catchall category. i don't spute their could be situations where you have a parallel list o nouns or a parallel list of words but that is not how 1512 is structured. itas complex internal stcture. and it has the mens rea requirement unique to 1512(c)(1) and congress didn't transplant

that io 12(c)(2)'s that means with they use disparate language into provisions it usually means something.t isn't the kind of situation where the court can sensibly apply this and the otherhi 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 face with the common attribute would be. >> as you know, that is true in almost every use and the treatise explains thats ll. it is hardo ow what the common phrase is. that point i don't think distinguishes that case. yo can respond to that. quest i think a plain speaker of english would recognize the connective tissue is the language otherwise. that is the congressionally improved salon -- improved similaty

the statut itself was relatively differe. it was the kind of statute that might pl >> wt out the contextual points that have come up? i just want to make sure you have a chance to respond. it would be in our provision tucked in connected by the word otherwise. >> and within the placement and the statute is odd at all. one is the point of trying to ma tjustice kagan about this. this is the statute and generall at visual proceedings. and that was like 1519 t ones that come right before that a rearrowly confined and intended to flt these

circumstances. at does not describe 1512 at all. they are trying to broadly private obstruction. then the say congress. in theide of the statute. 12 theas a much more minimal penalty. this is the most serious of instructionally killing a witness punishable by three years or up to life. esthe last question, there are six otherounts of the camera here. this includes civil disorder. contact with t victim entering and remainin a restrictive building and disorderly a destructive conduct in the capitol building.

whare those discounts good ough from a justice department perspective? why don't they have any other hurdles? >> those cows don'fully reflect this on january 6. those cows do not require that petitioner acted and obviously the petitioner committed other imes that we are seeking to ldhem accountable for. one of the root problems with titioner's conducts knew about that proceeding. said he was prepared to storm the capital, prepared to use violence. he wanted to intimidat congress. he said they can't don't if they can't breathe. he went to the capital on january 6 with that intent in mind andooaction inclung assaulting a law enforcement officer. thatidmpede the ability of the ofce toegain control of the capital. it is entirely appropriate for

the government. est the statutory maximum is higherut after a recent decision on the d.c. circuit judge which helped with a particular sentencing enhancement, that is the broad case i believe the sentencing range, the gdenes range would actually be higher guidin range. someone who does not hava prior criminal history. is is the range that would yield. we have looked at the avera sentences here. i think that is the best way to gauge it. iss when the sentencing enhancement didn't apply.

all of this is 26 months of imprisonment. there is no reasonable argument to be made of the statutory maximum here. >> thank y >> i want to ask a clarifying eson about the government charging decision between c1 and c2. what could you charge? c1 has this additional requirement. it obsuc influences, etc.. itou accomplish things like being late, is henry. i thought i heard you say. i just want to clarify earlier in the argument that government could not charge the alteration mutilation concealing a document or physical object under c2.

qut that is correct. we usually charge the specific paragraph. we would charge it under c1 and that would be need to look the charge. quest is that charging? do you think the statute would rmit you to charge it under c2 by escaping the specific intent requirement? >> iis the intent to obstruct the official proceedings. this is pressing with a difficult question about means versus development. these are ffent elements because they have these different requirements. the each independent private attempts. it is a hard question bentley. i think we could usually say that was harmless for recharge

under the corrected paragraph. >> what if on january 6 the capital se had not been breached and the protest is going on osi the capital, stop the steel, stop the steel anpolice are in megaphones dispersed disperse and they are too osto the capital and their goal is to impair and pede and stop the proceeding and stop the counting of votes. does that violate the statute in your view under this impede langge >> i think one relevant question would be whether we satisfy the nexus requiremenanshow the natural and probable effect of that conduct would have some of that of whats ing on. show >> 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 ulbe chargeable if we had the intent evidence. with respect to the riot that happen, ich was more serious, we don't have that intent for everyone. but if we had organirsere 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 wronuland if they went and i assume they are in the unthorized area outside of the capital, that's unlawf cduct committed with consciousness of wrongdoing if we have proof of it. >>et's say i am having a hard time accepting this to have the extra verb element. tell me why i sul't be concerned about the breath of government. if you do't have to agree with that.

if youhoht this was unqualified, erwould still be really important limits in thetatute. obviously we would have to have the offici proceeding. t i think the next requirement could be somewhat hard to tablish in a circumstance. you have to show that the defendantsne theatural and probable effect would do that. as you mentioned, even as u show all of that, it really did -- that would only be the backstop. >> do u ink it is lawful that congress would have written a statute that broadly i think justice alito's emp of a protestant department -- let's say it is crupt and it impede the proceeding because we have to go off the bench. let's say i think that is in coverage. is it possible to think congress wrote a statute tt uld sweep

that in question mark >> at think there are a lot of legitimate ways but one of the ways you cannot do it is to come into the courtroom, forced the justices to lead the bench. that is a severe intrusion on the enforcing of our government. there is no mandatory minimum. sentencing cores would use their discretion to tailor the actual method. chris you emphasized several times that congress wasn't writg a blank slate. but do you dispute that it was ready against the backdrop of a real world context? it was in the wake of enr, was documented destruction and there was nothing as far as i

ca tl that is adjusted congress was thinking about obstruction more generally. they had this paicar problem and it was destruction of information that could now have otherwisbe used in a official proceeding. so you just give us a little bit more as to why we shouldn't think of this as being a narrower set of circumstances to which this text relates >> sure. we have course acknowledge immediatte for adding 1512 the statute was to close the loophole of enron and it was a glaring one in the obstrti laws but not a crime for you personally to destroy the document and the government had a charge people persuading other ople to do that. and that was front of mind for congress and they wanted to and did are 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 leonhey took was when you s o in advance to enumerate the ways the official procdings could be obstructed things would slip throh e crack. >> w ((2) enacted at the same time as (c)(1)? >>es. >> why couldn't the broadening relate to other ways and which one maprent a proceeding from accessing information? one is documentsrerds, and other obctand the known unknown, we don't and no -- no. could it be tangible that when onge at physical objects? i guess i am struggling witheang from what is happening in (c)(1) 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 actualanage that congress used and if it was worried about other kinds of recordas proceeding based evidence-based ways of obstructing, they were easy templates to add that in as a residual clause to see treas no need to have th nber to prohibition separate or use the verbhre obstructs, flnces or impedes which was drawn from these other omnus clauses. we think it is consistent that after rowhat congress thought we don't want this to not be a cmend we want to cover this with the backstop of isn the limitation to an official proceeding. click thank you, counsel. mr. green> stice sotomayor, the defenda w tips off a

grand juryitness or the target of a search warrant is someone who i certainly attempting to impair the integrity or in avlality of evidence. just asobody who creates a document in the net document is shown to counsel and counsel withdraws the petition and has in fact created something that has interfered with an officl proceeding. >> i heard my friend say twice in response to your questions that seek to cer peaceful protest. so long as his government could demonstrate there was adeat mens rea and annexes. l's look at what 1512 as their

1512 f test. an official proceeding ne n be pending or be instituted at the time of the fee. there nnexus. congress has written it out of the statute right there. mens rea is a break only works at trial. this is the motion to disms the stage. i think that is exactly right. it is a break on a gka. what it means is people like mr. fisher have to say and t

trial and seek toin on a rule 29 motion because the government has improved their mens rea. the same is true for first amendment. other states within and a number of the justices pointed out there are much ler penalties for significant crimes i would point to 1752 which is civil disobedience and restricted space that is what mr. fisher is charged with. that is a misdemeanor. if you caused substantial bodil injury, that is a 10 year maximum penalty. the government wants to lee a 20 year excellent penalty.

even if they are peaceful. finally, we have not touched very much on the breath of influence. at would not only be peaceful protest, it would be advocacy, cld be all kinds of lobbying. those things would be covereas well. i would say to the court, let us not forget that cil proceedings are covered here. the government is suggesting the court should unleash a 20 year obstruction statute on civil litigation in federal court's.

i submit that is if we would submit that that is a very serious tool to put in the hands of prosecutors. we urge that the c >> washington journal, our live form involving you. from washington dc and across the country. sunday morning, axios reporter stephen newman discusses that house vote. click -- charlie cook talks about issues and trends. bradley bowman on the u.s. role in the israel-hamas war and recent military strife between israel and iran. c-span's washington journal.

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