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1519 each reach conduct that Section 1512(€)(2) does not, the overt provides no reason to give
Section 1512(¢)(2) an artificially limited construction. See Shaw, 137 S.C, at 469."
3, ‘The Legislative History of Section 1 ing
Te
“Given te straightforward statutory command” in Section 1512(¢X2), “ther is no reason
to resort to legislative history.” United States v. Gonzales, 520 U.S. 1,6 (1997). In any event, the
legislative history of Sostion 1512(6)(2) fs nota reason to impoce extratentual imitations om ie
reach,
(Congress enacted Section 1512(6)(2) s part the Sarbanes-Oxley Act of 2002, Pub. No.
107-204, Ti. X{, § 1102, 116 Stat. 807. The relevant section of the statute was entitled
“Tampering with a Record or Otherwise Impeding an Official Proceeding." 116 Stat. 807
(emphasis added), ‘That tte indicates that Congress intended the two clauses to have independent
‘feet, Section 1512(6) was added asa floor amendment inthe Senate and explained as closing 3
certain “loophole” with respect to “document shredding.” See 148 Cong. Rec. S6S45 (lly 10,
2002) (Sen, Lot) iat $6549-6550 (Sen. Hatch). But those explanations do not limit the enacted
text. See Piaston Coal Group v. Sebben, 488 U.S, 105, 115 (1988) (lt isnot the law that
saute can have no effects which are not explicitly mentioned in its legislative history") see also
Encino Motorears, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018) (“Even if Congress did not
foresee all ofthe applications of the statute, tha is no reason not to give the statutory txt a fair
reading”), ‘The floor statements thus eannot detract fom the meaning of the enacted text. See
Barnhart ». Sigmon Coal Co, $34 US. 438, 457 (2002) (“Floor statements from two Senators
cannot amend the clear and unambiguovs language ofa statute. We see no reason to give greater
Weight to the views of two Senators than to the collective votes of both Houses, which are
‘memorialized in the unambiguous statutory text."). That prineiple has partiular force where one
of the proponents of the amendment to Section 1512 introduced his remarks as only “briefly
clahorifing] on some of the specific provisions contained inthis bil.” 148 Cong. Rec. $6550
(Sen, Hatch),
Indeed, the language Congress used in Section 1512(6)2)-protibiting “eorruptly
obstneifing],influeneing}, or impeding] any official proceeding” or atempting to do so—
parallels a provision that Congress considered years earlier in bill designed to srengthen
protections against witness tampering and obstruction of justice. While the earlier provision isnot
4 direct antezedent of Section 1512(€)@), Congress's understanding of the broad scope of the
"68 The Supreme Couns decison in Marinella». United Stats, 138 S.Ct. 1101 (2018), doesnot
support mmpsing a on-exta intation oa Section 1S12()2). Mariela interpreted the ax obstruction
statue, 26 US. § 7212(), ro require "a ‘nexus’ between the defendant's conduct and patcuar
‘dminsrative procseding.” 7d. at 1109, The Court adoped that coastetion in light of the similar
interpretation given o “aber obstreton provisions," i. (eking Agar and Arthur Andersen), 38 wells
‘onsiertions of eontet,lpsative history, rte ofthe criminal ax la, flr warning and lent.
11106-1108. The ype of "nexus element the Cour adopted in Marinella applies under Section
15122, andthe emalning considerations the Cou ited donot juny reading nto Seton 151202)
language that snot there. See Rats» United States, $22 US. 23,29 1997) the Court “rail resists)
reading words or elemens ino astute tat donot appear on its ace."
168Us. Department of Justice
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catlier provision is instructive, Recognizing that “the proper administration of justice may be
impeded or thwarted” by a “variety of eorupt methods limited only by the imagination ofthe
criminally inclined,” S, Rep. No. $32, 97h Cong, 2d Sess. 17-18 (1982), Congress considered a
bill that would have amended Section 1512 by making i a crime, ier alfa, when a person
“corruptly... influenoes obstructs, or impedes ...[Jhe enforcement and prosecution of federal
law,” “administration ofa law under which an official proceeding is being or may be conducted,”
cor the “exercise ofa Federal legislative power of inquiry.” Jd. at 17-19 (quoting S. 2420)
“The Senate Comminee explained tha:
{T)he purpose of preventing an obstruction of or miscasiage of justice cannot be fully
catried out by a simple enumeration of the commonly prosecuted obstruction offenses.
‘There must also be protection against the rate type of conduct that isthe product ofthe
inventive eriminal mind and which also thwarts justice.
1. a 18, The report gave examples of conduct “aetally prosecuted under the curent residual
clause (in 18 U.S.C. § 1503}, which would probably not be covered inthis series [of provisions]
Without a residual elause." Jd. One prominent example was “[a] conspiracy t0 cover up the
‘Watergate burglary and is aftermath by having the Central Intelligence Agency sek to interfere
‘an ongoing FBI investigation of the burglary.” 4d. (citing United Stars. Haldeman, 559
F.24 31 (D.C. Cir. 1976) The report therefore indiates a congressional awareness not only that
residusl-clauce language resembling Section 1512(€)2) broadly covers a wide variety of
obstructive conduct, but also that such language reaches the improper use of governmental
processes to obstruct justce—specifically, the Watergate covers orchestrated by White House
officials including the President himself, See Haldeman, $59 F.3d at S1, 86-87, 120-129, 162."
4, General Principles of Stastory Construction Do Not Suggest That Section
5174632) is Inapplicable tothe Conduct in this Investigation
‘The requirement of fur warning in criminal law, the interest in avolding due process
‘concems in potentially vague statutes, and the rule of lenty donot justify narrowing the reach of.
Section 1512(c)(2)'s text"
1. As with other eriminal laws, the Supreme Court has “exercised restraint in interpreting
obstruction-of justice provisions, both out of respect for Congress’ role in defining crimes and in
the interest of providing individuals with “fair waning” of what a criminal statute prohibit.
Marinello¥. Unied States, 138 S. Ct. 1101, 1106 (2018); Arthur Andersen, 544 U.S. at 703;
TO The Scale ultimately acccped dhe Howse vervion ofthe bil, which excluded an ome
lase, See United States» Poindester, 081 F.2d 369, 382-383 (D.C. Ci. 1991) (acing history of the
Proposed omnibus provision in the witnese protection feesaton). During th leo debate onthe bl,
Senator Heinz, one ofthe inate and primary hackers o te legislaton, explained tha the omnibus else
‘was beyond the scope of the witness protection measure wt ianbe and likely “duplicative” of oer
bsruton avs, 128 Cong. Res, 26,810 (982) (Sen. Hein), peesumably refering to Sections 1503 and
10s,
we tna separate ction adeesing consideration unique tothe presidency, we consider principles
of statutory construction relevant in that context. See Volume Il, Section IB, ia
16sUS. Department of Justice
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Aguilar, 515 VS, at 599-602. In several obstruction cases, the Court has imposed a nexus test that
requires that the wrongful conduct targeted by the provision be sufficiently connected tan official
proceeding to ensure the requisite culpability. Marinell, 1388. CL at 1109; Arthur Andersen,
SU US. at 707-708; Aguilar, 51S US. at 600.602. Section 1512(¢)(2) has been interpreted t0
require a similar nexus. See, e., United States. Young, 916 F.3d 368, 386 (4th Cie. 2019);
United States v, Perak, 781 F 3d 438, 445 (8h Cir. 2015); United Siaes v. Philips, 383 F.3d
1261, 1264 (10th Cit. 2009); United States v. Reich, 479 F.3d 179, 186 24 Cit. 2007). ‘To satisfy
the nexus requirement, the government must show as an objective matter that a defendant acted
“ina mariner tha ikely to obstruct justice," uh that the saute “excludes defendants who have
an evil purpose but use means that would only unnaturally and improbably be successful”
Aguilar, $15 US. at 601-602 (internal quotation marks omitted); see id. at $99 (the endeavor
‘must have the natural and probable effect of interfering with the due administration of justice”)
(internal quotation marks omitted). "The government must also show as a subjective mater that,
the actor “contemplated a particular, foreseeable proceeding.” Petruk, 781 F-3d a 445. Those
requirements alleviate fairwarning concerns by ensuring that obstructive conduct has a close
enough connection to existing or future proceedings to implicate the dangers targeted by the
obstruction laws and that the individual actually has the obstructive result in mind,
, Cours also seek to construe statutes to avoid du process vagueness concems. See, 6.8,
MeDonnelly. United States, 136. Ct 2355, 2373 (2016); Skilling v. United States, $6| US. 358,
368, 402-404 (2010). Vagueness doctrine requires that a statute define a crime “with suicient
‘efiniteness that ordinary people can understand what conduc is prohibited and “in a manner that
ddaes not encourage arbitrary and discriminatory enforcement.” 1d at 402-403 (intemal quotation
‘marks omitted). The obstruction statutes’ requirement of acting “corrupkly” satis that est.
“Acting “corruptly” within the meaning of § 1512(6)2) means acting with an improper
purpose and to engage in conduct knowingly and dishonesty withthe specific intent to subvert,
lmpede or obstruct” the relevant proceeding. United States v. Gordon, 710 F.3d 1124, 1151 (Oth
Cir. 2013) (some quotation marks omitted) The majority opinion in Aguilar did not addres the
defendants vagueness challenge tothe word “corruptly,” $15 US. at 600.1, but Justice Sealia’s
separate opinion did reach tht issue and Would have rejected the challenge, i at 616-617 (Seal
1, joined by Kennedy and Thomas, JJ, concurring in part and dissenting in part), “Statutory
language need not be colloquial," Justice Scalia explained, and “the tem ‘eoruply” in criminal
Jaws has a longstanding and wellaccepted meaning, Tt denotes an act done with an intent to give
some advantage inconsistent with official duty and the rights of others." dat 616 (intemal
‘quotation marks omitted; citing lower court auhorty and legal dictionaries). Justice Scalia added
that “in the context of obsirdcting jury proceedings, any claim of ignorance of wronadoing is
incredible” Id, at 617. Lower courts have also rejected vagueness challenges to the word
Soormupty.” Soe, eg, United States 9. Edwards, 869 F 3d 400, 301-502 (Hh Cir, 2017); Unit
‘States v, Bronson, 104 F.3d 1267, 1280-1281 (U1th Ci. 1997); United States v. Howard, $69.28
1331, 1336 n.9 (Sth Cit, 1978). This wellestablished intent standard precludes the eed to Timit
the obstruction situs to only certain kinds of inherently wrongful conduct."
"In Unled States». Pobuestar, 951 F.2d 369 (D.C. Ci. 1991, the cout of appeals fund the
term “coruply” in 18 USC. § 1505 vague as applied to person who provide false infomation fo
‘Congress After suggesting tha the word “corruptly” was vague on is fe, 951 F.2d at 378, the cour
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