Good post and analysis, though I disagree with the position that the catch-all language in the obstruction statute is limited to actions akin to the specifically enumerated acts of obstruction. It's not unusual for statutes to specify certain illegal or wrongful activity followed by a provision of general and broader reach. The law-maker wants to make sure the enumerated acts are illegal, so it does make sense to enumerate and not assume that the catch-all will catch all, and it is hard to read the catch-all language in this statute as a way of reaching acts akin to the enumerated ones, particularly since the corrupt intent limitation would appear to apply only to the catch-all. I do think the catch-all has to be read with both the First Amendment and the canon that a law will be construed if possible to avoid constitutional issues in mind. I also think, though, that the corrupt intent requirement is a meaningful limitation. The act of obstruction itself couldn't be corrupt, or the corrupt intent requirement would be meaningless. It's hard for me to see how any of those who stormed or milled around in the capitol could be found to have a corrupt intent. Jim Dueholm
There is a considerable body of legal doctrine under the heading of statutory construction, and under the doctrine known as "ejusdem generis," I believe Judge Katsas (and Mr. Mirengoff) are correct. Under "ejusdem generis," when a series of terms is set forth in a statute, followed by a catch-all term, the catch-all term should be interpreted to items or matters of the same general type as the specific items, even if taken in isolation it seems to have a broader applicability. I believe that "nisquire," in his comment, is probably correct that in this case the catch-all clause goes beyond tampering with physical evidence, but all the specific items in the first clause involve impairing the ability of the agency to reach a reliable result. I think that under "ejusdem generis," activity needs to have a similar risk to come within the "otherwise" clause. Improperly but peacefully milling around inside the Capitol does not do that.
This is a very interesting post. But I think that the quotation of the statute creates a misimpression, as the statute has two enumerated parts. The first has to do with records and documents (basically physical material), the second, beginning with "otherwise." That to me appears to include, but not be limited to, actual conduct that interferes with an official proceeding. If "otherwise" were to pertain to records and documents (material), there'd be no need for separate definitions of the kind of conduct which, if committed corruptly, would constitute the crime. And I write this as one who has represented more than twenty January 6 defendants, most who have been charged with misdemeanors, but several who face or have faced prosecution for obstruction under this statute (18 U.S.C. §1512(c)(2)). My analysis should not be construed as an opinion on whether the law was wisely enacted.
Blame Congress (and the President who signed it). There's no end of these vague and overbroad statutes, poorly or maliciously drafted to grant ever more power to the government. Decent judges, as you point out, could limit the damage, but the courts in DC are a national disgrace. Look at how they have treated General Flynn and Mark Steyn (sued by Michael Mann, a case apparently still pending after about 10 years) for only two egregious examples.
Good post and analysis, though I disagree with the position that the catch-all language in the obstruction statute is limited to actions akin to the specifically enumerated acts of obstruction. It's not unusual for statutes to specify certain illegal or wrongful activity followed by a provision of general and broader reach. The law-maker wants to make sure the enumerated acts are illegal, so it does make sense to enumerate and not assume that the catch-all will catch all, and it is hard to read the catch-all language in this statute as a way of reaching acts akin to the enumerated ones, particularly since the corrupt intent limitation would appear to apply only to the catch-all. I do think the catch-all has to be read with both the First Amendment and the canon that a law will be construed if possible to avoid constitutional issues in mind. I also think, though, that the corrupt intent requirement is a meaningful limitation. The act of obstruction itself couldn't be corrupt, or the corrupt intent requirement would be meaningless. It's hard for me to see how any of those who stormed or milled around in the capitol could be found to have a corrupt intent. Jim Dueholm
There is a considerable body of legal doctrine under the heading of statutory construction, and under the doctrine known as "ejusdem generis," I believe Judge Katsas (and Mr. Mirengoff) are correct. Under "ejusdem generis," when a series of terms is set forth in a statute, followed by a catch-all term, the catch-all term should be interpreted to items or matters of the same general type as the specific items, even if taken in isolation it seems to have a broader applicability. I believe that "nisquire," in his comment, is probably correct that in this case the catch-all clause goes beyond tampering with physical evidence, but all the specific items in the first clause involve impairing the ability of the agency to reach a reliable result. I think that under "ejusdem generis," activity needs to have a similar risk to come within the "otherwise" clause. Improperly but peacefully milling around inside the Capitol does not do that.
This is a very interesting post. But I think that the quotation of the statute creates a misimpression, as the statute has two enumerated parts. The first has to do with records and documents (basically physical material), the second, beginning with "otherwise." That to me appears to include, but not be limited to, actual conduct that interferes with an official proceeding. If "otherwise" were to pertain to records and documents (material), there'd be no need for separate definitions of the kind of conduct which, if committed corruptly, would constitute the crime. And I write this as one who has represented more than twenty January 6 defendants, most who have been charged with misdemeanors, but several who face or have faced prosecution for obstruction under this statute (18 U.S.C. §1512(c)(2)). My analysis should not be construed as an opinion on whether the law was wisely enacted.
Blame Congress (and the President who signed it). There's no end of these vague and overbroad statutes, poorly or maliciously drafted to grant ever more power to the government. Decent judges, as you point out, could limit the damage, but the courts in DC are a national disgrace. Look at how they have treated General Flynn and Mark Steyn (sued by Michael Mann, a case apparently still pending after about 10 years) for only two egregious examples.