We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States.
We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we are continuing to grind out the summer episodes, picking up the pieces from October term 2023 as we head into October term 2024 soon enough.
Will: Picking up the pieces seems a little aggressive, it's like someone broke something.
Dan: Well, we broke something by not being able to give you real time commentary and going on vacation and stuff.
Will: Okay. I just want to make sure you're not attacking the legitimacy of the court.
Dan: No, the court does enough of that for itself. Speaking of, President Biden did actually come out with his promised Supreme Court reform proposal. I don't have a ton to say about it at the moment, other than that Kamala Harris has also endorsed that and said she agrees with it. So, maybe Supreme Court reform is going to be with us as a political issue for a while longer yet.
Will: I guess it'll at least be a topic through the election.
Dan: Yeah, through potentially our last election.
Will: Why?
Dan: Well, didn’t former President Trump said to Christians, “You don't need to vote again after this one.” There's a disagreement about what exactly he meant by that, but I'm not going to get into it.
Will: Okay. I predict we'll have more elections.
Dan: They have elections a lot of places. They've got elections in Russia. President Putin is very popular.
Will: I also predict that Vladimir Putin will never win any of our elections.
Dan: [laughs] He's not eligible.
Will: That's my point.
Dan: Yeah.
Will: Now, I guess Colorado probably has to put on the ballot.
Dan: Yeah. And what did we decide? Is Colorado is allowed to keep noncitizens off the ballot?
Will: I think they're allowed to enforce every constitutional provision except for section 3.
Dan: That makes a lot of sense. So, today, we are actually going to talk about topic, near and dear to my heart, substantive criminal law. So, we've got a couple cases to talk about, but one of them does have a Trumpy connection, and the other one has a hook people at least have tried to make to Supreme Court ethics. So, not going to be totally able to get away from the hot button issues that you love. Well, let's see. So, two cases are Fischer v. United States and Snyder v. United States.
Will: Yep.
Dan: Which one do you want to do first?
Will: Let's start with Fischer.
Dan: Okay. These cases both got some attention, but maybe Fischer got a little bit more attention. So, this is a prosecution coming out of the events on January 6, when a bunch of President Trump's supporters stormed the Capitol and so forth, when the election results were being in the process of being certified.
Will: Yes.
Dan: Okay. But this is not a prosecution of President Trump. This is a prosecution of a guy named Joseph Fischer.
Will: Right. Although I think the statute at issue is one of the statutes that President Trump is charged with in DC.
Dan: Yes, but the consequences for his presidency-- it's different, right? This is potentially different.
Will: Yeah.And Trump didn't file amicus brief, that would have been kind of funny. I don’t think he did.
Dan: If you say he didn't, he didn’t.
Will: Well, I'm just making it up. [Dan laughs] But it's true.
Dan: Let's find out.
Will: Okay, so what is this statute? This statute is part of the Sarbanes-Oxley Act of 2002, right?
Dan: Yep.
Will: Which deals with various kinds of corporate fraud. And one provision of it, 18 U.S.C. 1512(c), has two sections. One, which is not what Fischer is charged with makes it a crime to corruptly alter, destroy, mutilate, or conceal a record, document, or other object with the intent to impair the object's integrity or availability for use in an official proceeding. The next subsection extends that prohibition to anyone who otherwise obstructs, influences, or impedes any official proceeding or attempts to do so.
Dan: And so, this is the challenging thing about doing statutory interpretation on a podcast where I can't put the words right in front of you. But just one thing to note is the way the statute is structured. It starts with whoever corruptly and then has those two subsections that Will just laid out. So, it has an overarching mens rea term, corruptly. We'll talk about what that might mean in a minute and then these a list of these two separate, distinct prohibitions.
Will: And theme of the first section is something about document shredding, we gather, alters, destroys, mutilates, or conceals a record, document or other object. And I'm pretty sure that under the spirit of Yates, the fish shredding case, a record, document or other object is going to be limited to record and document like objects. So, it's about documents.
Dan: Should we tell people about that case?
Will: Oh, yeah, probably. I hate that case.
Dan: You hate it?
Will: Yeah.
Dan: It's an interesting, fun case. You don't think?
Will: It is an interesting and fun case.
Dan: So, what do you hate about it? You just don't like the result.
Will: Or the reasoning.
Dan: The reasoning. [chuckles] Reasoning--
Will: The spirit reveals--[laughs]
Dan: Reasoning could have been stronger. Yeah. So basically, that was an issue in that case was another provision coming out of Sarbanes-Oxley. And Sarbanes-Oxley is a law that was passed in the wake of the Enron collapse for our few younger listeners. Enron was a corporation that did a lot of fraud stuff and turned out was not worth as much as told everybody it was, and caused this massive collapse that made people lose confidence in the economy more generally. It was very bad. And along the way, there was some document destruction. And as a result of that, we used to have the big five accounting firms. And after Enron and the events in the wake of Enron, we now have the big four accounting firms. So, we took down Arthur Andersen, one of the then big five accounting firms. So, kind of a big deal.
And Yates was charged with section 1519, which makes it a crime to knowingly alter, destroy, mutilate, conceal, cover up, falsify, or make a false entry in any record, document or tangible object with the intent to impede, obstruct, or influence a federal investigation. So, you can see a certain amount of overlap in the language and intent we're talking about. And long story short, Yates caught some fish. The fish were too short, too small, violated federal law. He was caught, but then he destroyed the fish. He threw the fish overboard, destroyed the evidence. The question for that case was, “Is a fish a tangible object?” Five Justices said, “No, not consensus on the reasoning.”
There was a four Justice plurality written by Justice Ginsburg, joined by the Chief Justice Breyer and Justice Sotomayor, that basically tried to say, “Tangible object has to be like a document, something that records or preserves information.” And then Justice Alito wrote an opinion that was the same, but also vaguer and seemingly designed to prevent the majority opinion, there being a majority opinion that people could rely on in future cases. And I thought that it was not his strongest work. And then a very effective dissent by Justice Kagan, who says, [chuckles] “A tangible object is a tangible object,” and fish is a tangible object.
Will: A fish is an object, and you can hold it. That's how they threw it overboard. It's tangible.
Dan: Seems pretty tangible.
Will: Yeah.
Dan: And it was an interesting case because I remember hearing about it and be like, “Oh, have you heard about this case that's coming?” The government is trying to say destroying fish is document shredding. And it sounded bad, it sounded like overreach. But then you actually get to the text and it's like, yeah, actually, it seems to really cover this, right?
Will: Yes. The reason I hate the case is I personally resent it for the fact that when I first heard about the case and saw the cert petition, I thought, “Oh, wow, this is outrageous, practical overreach. The court's going to step in and stop it.”
Dan: Which they did.
Will: Yeah.
Dan: But--
Will: And then what I hate about it is that I was sold too hard, that when I focused on it, I realized that the Justices, like, I had been hoodwinked, and a fish is a tangible object.
Dan: But five of them stayed hoodwinked, or at least willfully hoodwinked themselves.
Will: If they figured it out before it was too late, I wouldn't be mad at them.
Dan: Yeah. So, interesting one. I taught that one every year when I was teaching 1L criminal law before I moved over to con law, so I could have the privilege and joy of using your casebook. And the students like that one a lot, I think, because it is this battle between what the statute actually says and then underlying concerns about overcriminalization. A friend of the show, Richard Ray, has a great blog post from a number of years ago called something like Yates and the ghost of Bill Stuntz, where he talks about Justice Kagan's dissent, where she calls out what the majority is doing for their concern about larger pathologies within federal criminal law but that are not squarely presented by the statute. So, check that out. But that's all by way of background to this case.
That was in 2015. Court's membership has somewhat changed. Some Justices still in the court, some Justices from that case not on the court, but that's very much in the background.
Will: All right, the question here is whether or not a fish-- No, wait.
[chuckles]
Will: Whether Congress is a fish. No-- Okay. The question here is whether or not the people who stormed the Capitol on January 6 otherwise obstructed, influenced, or impeded an official proceeding or attempted to do so. And this was not as far in the distant past, so probably most of our listeners are aware of it. But Congress was in the middle of counting and certifying the electoral vote total on January 6th.
Dan: That sounds like an official proceeding to me.
Will: Everybody agrees it's an official proceeding. That was hellbent, easy in the circuit, and unchallenged.
Dan: Okay.
Will: And if you were watching it on C-SPAN at the time, as I was while praying for ConLaw class just to make sure nothing happened, then suddenly, your C-SPAN feed cut out because the January 6thers had breached the Capitol, and they eventually had to evacuate the Capitol chamber.
Dan: Do you remember you were the one that told me about this happening?
Will: Yeah.
Dan: And I remember-- it was interesting just because we had had conversations about Trump, and you obviously are not pro-Trump, but you were always like, “Oh, everything's going to be fine. Peaceful transfer of power.” And then you texted me, you were like, “This is happening. This is really, really bad.” I was like, “Oh, how could that going to be?” I have just priced all this stuff in. You were like, “It's really, really bad.” And it was bad. It was not great.
Will: Yeah, it was fine in the end.
Dan: But you seem more shaken to the core about it.
Will: I was shocked. I mean, again, I may have an influence, the fact that I was watching it just to make sure I didn't have to update on my likelihood of the peaceful transfer of power-- [crosstalk]
Dan: Well, you should have updated on the likelihood. [chuckles] The likelihood definitely went down.
Will: Yeah, that's just it. [laughs] I updated a lot. So that might seem to a naive person, to a naive prosecutor like it's a form of obstructing, influencing, or impeding an official proceeding. But the majority in a 6-3 decision with a somewhat interesting lineup says, “No, it's not otherwise obstructing, influencing, or impeding an official proceeding.”
Dan: I'm struggling to understand that. So which word? Which word is it not?
Will: Well--
Dan: Is it not obstructing? Is it not influencing? Is it not impeding?
Will: I think it's not otherwising.
Dan: Okay. Yeah. So, the reasoning seems to be that like this Yates like argument, you've got a statute that does a couple of different things, and the second thing has to be the first thing, thing or things that preceded it.
Will: Yes.
Dan: So, in Yates tangible object, we couldn't just read it, we had to look at stuff in the statute before it turns out tangible object was, the court told us, actually meant tangible objects that could hold information.
Will: Bythehard drive or a box full of documents.
Dan: Yeah. And so here, where in the opinion is that it's a little fuzzy, but where is trying to find the place in the opinion where they clearly, in one sentence, tell you exactly what the limitation on subsection (c)(2) is, because the court tells us it's going to take a narrower interpretation. But is there one good sentence that really clearly says what exactly-- [crosstalk]
Will: I think it's the sentence after the dinkus.
Dan: Okay. Is that at the end?
Will: [crosstalk]
Dan: Okay.
Will: “To prove a violation of section 1512(c)(2) the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or, as we earlier explained, other things used in the proceeding or attempted to do so.” So, they're saying it's not just about obstructing the proceeding, it's about obstructing the proceeding in some way that involved the records, documents, or objects that are in (c)(1) or other stuff.
Dan: That would that be like stealing the judge’s gavel?
Will: Yeah, I think we've talked about this on the show before, the classic example in England where somebody stole the royal seal and threw it in [Dan laughs] the Thames so the government couldn't do anything for a while.
Dan: I don't remember us talking about that. I totally believe we do, because I remember. I forget what we talk about half the time, but--
Will: So, if the January 6th group as a whole or Fischer himself, had been trying to make a beeline for the chamber to grab the electoral votes and run off with them, or an object or the gavel, so they couldn't start the proceedings, or the flag because he thought that-- if they don't have the flag, then somehow the proceedings are invalid, then that would count. And there is a remand, by the way, because you could imagine prosecuting the case on such a theory. Similarly, I think in Trump's case, the 1512 charges, at least in part, some of it involves the idea of sending false certificates and stuff like that. That might still qualify even under the majority's reading. But you have to do something document or a similar object related to obstructive proceeding, not just beat down the doors with-- [crosstalk]
Dan: So, just trying to stop the proceeding is not enough. You have to come in, stop the proceeding, and try to steal the documents that are used in the proceeding.
Will: I remember two episodes ago, we talked about in Giles, the fact that you're merely trying to kill the witness doesn't mean you're engaged in forfeiture of your rights. So, if you merely were trying to hang Mike Pence, I think that would not obstruct a provisional proceeding. Unless you tried to hang Mike Pence and also steal his phone or something else that he needed to be able to provide.
Dan: Yeah, I'm glad you mentioned that, because I was actually-- That was where I was going. It struck me as another one of these-- do you really believe this? Can you believe they're saying these distinctions? And one other, just side note piece of follow up we got about Giles was from Jonah Klausner, who is a 3L at Chicago, actually, who responded to your skepticism. You were like, “How can you have evidentiary rules in a criminal trial that turn on the defendant's guilt,” but those are actually really not that unusual. And Jonah flagged for us, federal rule of evidence 801(d)(2)(e), which under Bourjaily v. United States says, “A co-conspirator statement is admissible under an exception to the hearsay rule. This exception of the hearsay rule, after the court finds, by preponderance of the evidence, that the declarant and the defendant were in a conspiracy.” So, even if the fact that there's a conspiracy is something that has to be proven beyond a reasonable doubt to the jury, the judge is making that determination by a lower standard of proof to determine whether the evidence can come in. And I think that's not the only thing like that. I don't think that's crazy.
Will: That's crazy. I mean, I agree that's a true statement of the law, and it's a good point, and it's ridiculous. And I remember thinking it was ridiculous in criminal law when I was a 2L, and I still think it's ridiculous.
Dan: You think it's ridiculous?
Will: Yeah.
Dan: I don't think it's ridiculous. I think it makes sense.
Will: I don't think that we should have a system where the judge has to do a mini trial of the defendant's guilt to decide to have the jury have a trial, then I think it's really turning the jury trial into a show trial.
Dan: I mean, what's the alternative just not have the evidentiary bar? I mean, we could just not have the rule of evidence at all. We're just saying that here's a threshold showing, and we make all sorts of, you know, the judges-- [crosstalk]
Will: We could have them be admissible or have them not be admissible. I hope neither one, probably they should-- I'm fine with them being admissible, instead of confrontation and then it's a little complicated to try them together. And then we'll have to refer back to our old episode on severing trials and the Bruton rule and stuff.
Dan: But can't we just give the jury an instruction that you should not consider the evidence if you determine the defendant wasn't in a conspiracy?
Will: Yeah.
[laughter]
Dan: Can we solve everything with carefully crafted limiting instructions?
Will: The judge should instruct the jury. The defendant is guilty. You should disregard this view, this instruction, however, if you believe the defendant is not guilty. [Dan laughs] Or the defendant can just get up and say, “I am lying right now,” and then you know that statement is a lie, then it's true. But then if it's true, then it's a lie.
Dan: This is one of those logic puzzles. Those are fun.
Will: Okay, so, I think there are some things about this opinion, the majority opinion, that makes sense. But there are also things about the majority opinion that don't exactly make sense. Can we start with the word otherwise?
Dan: Otherwise.
Will: I take there's this underlying dispute that’s just about does the word otherwise mean in a different way or in the same way?
[laughter]
Will: Because if it meant in a different way, which is what it seems like it means that it'd be odd to say, if you do x or otherwise do y, it'd be odd to say that, well, y has to be the same as x because otherwise it's supposed to be in a different way.
Dan: Well, I think everybody has to agree it means in a different way. But the question is how different?
Will: Okay, good, because it means, there's some reason these two things are related. You wouldn't say otherwise in a different way unless there was some reason to think they were on the same topic in the first place.
Dan: Yeah, it's like if you do x, y or z or otherwise, do q, that suggests to me that q is obviously not included in x, y and z. Yeah, but it may be in the same ballpark.
Will: But then why isn't the ballpark in this statute defined by corruptly, an official proceeding? What they have in common is that they both involve corruptly doing something to an official proceeding. And one of them is about one way of obstructing it, document destruction that was prominent in Enron. And the other one's a catch-all. And other forms of obstruction that don't include documents.
Dan: I'm totally persuaded by that. I mean, I read this as one, if you destroy documents to impair their integrity or availability for an official proceeding or otherwise obstruct the official proceeding. To me, just textually trying to come into the courtroom, guns blazing, and tell the judge to stop the trial, that seems like that should qualify. That's how I read the statute.
Will: Okay, I'm with you. I thought a fish was a tangible object. But even if a fish is intangible or not an object, it still seems to me that trying to hang Mike Pence is attempting to obstruct the official proceeding that Mike Pence is presiding over.
Dan: I am with you on that.
Will: But there is this surplusage point that if the second sentence is any obstructing, influencing or impeding an official proceeding, then why do we need the first one? If you're going to, say, “Obstruct an official proceeding in these specific ways or otherwise obstruct an official proceeding,” then it seems like you've made the first one meaningless. And the first one's first and long.
Dan: Yeah, I mean, a couple possible responses to that. So, one is concealing a record might not obstruct the proceeding as a whole. Maybe it affects the proceeding in some way. Maybe it doesn't obstruct the proceeding. Maybe it influences the proceeding or impedes the proceeding. I don't know. But one could imagine maybe those verbs which are directed at the proceeding as a whole require something bigger than part one which could apply to just any modification of any record, no matter how small, which is designed to impair its integrity or availability for use in an official proceeding. Does that make sense?
Will: So, the idea, imagine a document that's not important.
Dan: Yeah. Some trivial piece of evidence.
Will: A document you're going to use in the official proceeding. But in fact, it doesn't really matter. Stealing it is destroying it or concealing it with the intent to impair its availability for use in an official proceeding. It doesn't matter. But it wouldn't be obstructing or influencing or impeding the official proceedings, you don't need it. So, it's almost like subsection 2 has a harmless error thing [Dan chuckles] built into it or a prejudice thing-- [crosstalk]
Dan: Maybe-- I mean, this is me on the fly. This is just me on the fly doing my best. But there's lots of situations where someone might say something specific. And then just have an otherwise to capture a bunch of other stuff in a way that, for a couple reasons. So, one, even if the otherwise, in theory, could include the stuff in the first part, you might want to be really careful to define the stuff in the first part because it's really the thing you're most worried about. And you want to avoid any ambiguity. Whereas you're okay with accepting a little bit more ambiguity on other kinds of conduct. Because it's not at the heartland of what you're doing, even if you mean to include it.
So, I mean, the alternative statute we're imagining is one that just says whoever corruptly obstructs, influences or impedes any official proceeding or attempts to do so. It doesn't have anything about mutilating or concealing a record.
Will: Right. That's interesting. So, one way to think of that, I mean, is a belt and suspenders argument. Just that statute might well say, like, “Don't do x. No, really don't do x or any y.”
Dan: Yeah, but again, it's not surplusage because otherwise specifically means not including the stuff we just said in the sense that if someone destroyed a document, they could not be charged under section 1512(c)(2).
Will: But if you imagine the statute was rewritten.
Dan: Yes, if you imagine the statute was rewritten in the way I said-- [crosstalk]
Will: To start with, obstructs, influences, or impedes so that all of (c)(1) plus otherwise. Now, I still take your point that either there are cases of document destruction that might not be obstruction, and so you want-- [crosstalk]
Dan: Maybe, or at least Congress could have thought that might be the case.
Will: Right. Now, once you say, though, that they just decided 1512(c)(2) was ambiguous, then maybe this plays in the majority's hands. Maybe they'd say, “Look, we agree, (c)(1) is clear. And (c)(2) is ambiguous. It's not quickly what they're trying to capture. They're trying to capture something. And we think the best construction of the ambiguity is they're trying to capture stuff that's kind of like the stuff in the first one.”
Dan: It's not that ambiguous, though.
Will: Yeah.
Dan: I mean, that's the same problem that was in Yates.
Will: Yeah.
Dan: Right.I like the thing about this case and about Yates is that in these cases, the Justices try to construct these hypotheticals.
Will: Yeah.
Dan: And then there's a lot of fighting about whether the hypotheticals, statutes and hypothetical lists have been constructed properly. And so here, the Chief Justice gives us a couple of his hypothetical examples designed to draw out your intuitions about how to read language. Should we go over those?
Will: A zoo might post a sign that reads, “Do not pet, feed, yell, or throw objects at the animals or otherwise disturb them.” If a visitor eats lunch in front of a hungry gorilla or talks to a friend near its enclosure, has he obeyed the regulation? Surely, yes. Do you agree with that?
Dan: I think yes. But not surely yes.
Will: Yeah. I'm not even sure it's yes.
Dan: Yeah. I mean, so can I change the hypo?
Will: Sure.
Dan: If a visitor takes his lunch and holds it in front of the hungry gorilla’s enclosure and waves it at him.
Will: Right.
Dan: Has he obeyed the regulation? Surely no, right?
Will: Right.
Dan: That seems like it's disturbing the animal.
Will: He didn't feed them or throw his lunch. It'd be weird to say, well, only actually throwing my lunch to the gorilla counts as disturbing them. Merely taunting him does not, right?
Dan: Yeah. I mean, it seems like the difference is maybe like a mens rea difference.
Will: I mean, so look, it might be that the difference is also circumstantial. It might be that eating lunch at the zoo in front of most animals most of the time is compliant. But when the animals are unusually hungry, [chuckles] and maybe only some animals, maybe-- [crosstalk]
Dan: The lion is roaring and at the window opening its mouth trying to eat people.
Will: But maybe when you eat your sandwich near a hungry snake, it doesn't really care, right?
Dan: Yeah.
Will: And again,maybe-- [crosstalk]
Dan: Maybe there's a recklessness standard. Maybe there's a negligence standard. I don't know.
Will: Yeah, that example doesn't seem obviously correct.
Dan: This is one of those statutory interpretation hypos I just don't like, because, first of all, it's not obvious at all that this is the same. It's different than the way the statute is worded. Second, I'm not even sure it works on its own terms, so this one doesn't do a lot for me.
Will: Yeah. I mean, I like it for those reasons. [laughs] I think it's helpful.
[laughter]
Dan: It's helpful to show there's something wrong with what the majority is doing?
Will: Well. Or it's helpful to think through, if you disagree where, do you disagree that this is analogous or do you disagree that's the right answer or both? And that can help focus us on the dispute. And then Justice Jackson had one as well. Right?
Dan: She refers back to the next one the Chief has, the football one. So, here's this one. “For instance, a football league might adopt a rule that players must not ‘grab, twist, or pull a face mask, helmet,’ or other equipment with the intent to injure a player or otherwise attack, assault, or harm any player. If a linebacker shouts insults at the quarterback and hurts his feelings, has the linebacker nonetheless followed the rule? Of course he has.’” So again, I don't like this one either.
Will: Okay. I'm inclined to agree on that one [Dan laughs] that attack, assault, or harm probably doesn't include feelings. But I don't think it's limited to equipment. For instance, I think the majority's thing would say, “Well, it's only other equipment related injuries.” You either are pulling on their equipment or hitting them with equipment. And if you merely just punch somebody else in the face.
Dan: But that's not what the Chief says. The Chief says, “The examples of prohibited actions all concern dangerous physical conduct that might inflict bodily harm.” But yeah, if you just had a statute that said didn't have anything about the face masks or helmets, and just said, “It'll be against the rules to attack, assault or harm a player.” Likewise, nobody would think that includes saying mean words.
Will: Yeah, I'm not sure nobody would, but I think that would be the correct construction.
Dan: I mean, okay. Very few people would. I mean, the fact that the whole preceding part of it and the otherwise in his hypo is just completely a red herring. I just find this-- And so, I think the way you just phrased it is actually what the majority's argument is with respect to this statute. If the player is charged with punching the other player, and we would look at the statute, we look at the rule and say, “Attack, assault or harm, that punching somebody definitely counts.” And then the player were to say, “No, no, no everything else in the previous list is equipment related.” And I just punched him in the face. I didn't pull on his shin guard.
Will: I think that's got to be the majority's actual correct. The majority should say that about their own hypo and they don't because that would be ridiculous.
Dan: Obviously, it doesn't work.
Will: But that just helps show why their reasoning is ridiculous.
Dan: It just doesn't work.
Will: Okay. One other maybe argument in defense of the majority?
Dan: Okay.
Will: We have two more. I'm trying here. Is it relevant that there are a lot of other statutes that criminalize this conduct? So, Fischer is charged on a seven-count indictment, and they include statutes that are much more obviously apt. One of them is 40 U.S.C. 5104, which has a whole set of stuff about violent entry and disorderly conduct in Congress. Nobody can enter the floor of either house of Congress or any lobby adjacent to that floor unless authorized. They can't act with intent to disrupt the orderly conduct official business in Congress, obstruct and impede passages, blah, blah, blah. And there are other statutes that are like that. So, there's an assault statute, 18 U. S. C. 111.
So, the majority is saying, it's not that trying to hang Mike Pence is not a crime. It's a lot of crimes. It's just, does it need to be this crime in light of the sweep of the whole code?
Dan: The problem is with the way the federal criminal code is written, you can play that game with anything because that also, I'm sure that same reasoning would apply to a prosecution for mutilating a document.
Will: Yeah.
Dan: There's going to be a number of overlapping proceedings, the provisions that would cover that. The provision at issue in Yates section 1519, which really include that they're going to have slightly different elements, not official proceeding, federal investigation, whatever. But the federal criminal code is vast, it's broad, and there's lots of conduct that is covered by a bunch of different provisions. And if we start saying we're going to ignore the text of the statute to prevent that from happening, that would be a much bigger change to federal criminal law.
Will: Sure.
Dan: Maybe it could be a tiebreaker, maybe.
Will: Do you think when interpreting a particular part of the federal criminal law, we should ignore all the other parts or we should in some way try to read them together or take account of them or something?
Dan: I wouldn't say we should ignore them entirely. And maybe the overall structure might draw some inference from it. If this was in a chapter of the code, that was everything, there were 30 provisions in a row, they were all about documents. And then there was a whole other chapter of the code that was about other kinds of proceedings. I mean, I'm not going to say it's not relevant, but I think it needs to be a pretty targeted argument rather than just saying, “Oh, this is covered by other stuff.” Yeah, there were a lot of things.
Will: And are the potential penalties relevant? So, what my conservative friends who want to defend the decision say to me is they say, “Look, there are lots of statutes that were much more on point, but they didn't have the harsh penalties that the prosecutors wanted to bring to these cases. So, they combed the US code looking for anything that had a nice stiff penalty they could add to it to beef up the charges.” And when that's what's happening, we ought to be a little more skeptical. If it's true that there are a bunch of more specific provisions with more that are more like misdemeanors, is that relevant?
Dan: That's also just not doing much for me. First of all, prosecutors are often going to look for the most leverage that they have. Yeah, there's lots of specific federal criminal statutes, there's lots of broad ones. I don't think there's any rule that says prosecutors can't bring charges under broad statutes. And, look, if I thought this was a reach, I would be more moved by that. But the language is pretty clear. It doesn't seem like, “Oh, this is some wacky theory that they came up with.” I don't know. I just read the statute [chuckles] we talked about it. It seems like impeding an official proceeding.
Will: Yeah.
Dan: If this had been a trial, would this have seemed like a hard case?
Will: Even if there was a trial going on and then a bunch of people decide to rush the trial and stop--[crosstalk]
Dan: Supreme Court oral argument. The court hand down the day Dobbs is supposed to come down.
Will: If they try to steal the slip opinion.
[laughter]
It's 1512.
Dan: Yeah, but otherwise it's, you know--
Will: They merely shout and yell. I mean, I think the court said the same thing. I don't think, I mean-- [crosstalk]
Dan: I think today the court would say the same thing, but I mean, just, would the court have had the same intuition?
Will: Right. I mean, we can circle back to Justice Jackson, Justice Barrett's dissent, it's interesting because it's Justice Barrett with whom Justice Sotomayor and Justice Kagan joined dissenting, sounds a very similar theme. She opens in two paragraphs and says, “So why does the court hold otherwise?” Because it simply cannot believe that Congress meant what it said. And then she says, “The case of the government's interpretation is straightforward. It could be accomplished in three paragraphs as compared to the courts many, many more.”
Definition of obstruct, definition of otherwise Justice Fischer-- what Justice Fischer did. I almost put your sentence down there.
Dan: I found it pretty persuasive.
Will: So, I see the point. Justice Jackson, however, does not join this dissent. Do you think that's interesting?
Dan: Yeah. This is a case where it had a lot of people saying, “The court is Trumpy,” but in fact we have a liberal Justice joining the majority and a conservative Justice pending the dissent. So, it's maybe a little bit more-- [crosstalk]
Will: A Biden appointee joining the majority and a Trump appointee joining the-- [crosstalk]
Dan: Yeah. Yeah, put a sharper point on it. Her concurrence, so she comes in and first defends the football analogy.
Will: She should have at least-- the gorilla analogy is better than the football analogy.
Dan: But she makes a slightly different move. She says, “It is likewise clear from the listed prohibited acts that the football rule is also not addressing far more serious and unexpected conduct than the kinds of acts that the preceding examples describe, which can result in serious and foreseeable physical injuries. If a player were to shoot or poison another player, the rules drafters would expect the police to be called, not a referee.”
Will: Yes. So, she understands the force of the hypothetical the way the majority doesn't. She wants to say attempting to hang the opposing team's quarterback is not otherwise attacking, assaulting, or harm any player.
Dan: But I'm also not sure that's right either. I just think that's a situation where we would forget about the rule book.
Will: Yeah. Well, we might or may not forget about the rule book. I mean, we might both call the police and [chuckles] cause the team to forfeit the game.
Dan: Yeah. I mean, if the team on whom the penalty was called tried to appeal the penalty and say, “Well, this was an attempted murder, not like something that just would have caused a sports injury. Therefore, it was inappropriate to penalize us,” that would be preposterous.
Will: That's what I mean. I think this is a preposterous interpretation of the rule, but I think it is the interpretation of the rule that follows from the majority's logic. And so, I appreciate Justice Jackson laying that bare for us, even if she doesn't seem to think it's prosperous.
Dan: Yeah.
Will: Sorry, as a side note, do you ever teach these various sports assault cases in criminal law?
Dan: No. I was thinking about those though, yeah. There are cases like hockey cases and things like that where someone engages in conduct that actually might cross the line from just sports misconduct into criminal assault, either attempted murder or something like that.
Will: Right. But also, because a lot of what happens during a sports game on its own, without the context of the sports game, might seem to cross the line. It might seem to be assaults and depending on how the assault statute is worded, there's not always a defense for while he was the quarterback because it's not exactly consensual. The quarterback hasn't agreed to be tackled [chuckles], although agreed to be in a game where they might get tackled. And, yeah, it's interesting to think through.
Dan: So, she also, in this opinion, gives us some clues about her overarching theory of statutory interpretation. So, she talks about how the majority invokes the canons of noscitur a sociis, and ejusdem generis, we didn't really talk about that, but those are Latin canons of construction. She says, “These canons are useful interpretive tools, but in my view, they were ultimately only devices used in furtherance of achieving our goal of determining the intent of Congress.” And so, she says, “We apply these canons because we understand that their principles are consistent with how users of language, including legislators, convey meaning. As such, they are valid indicia of Congress's purpose.” So, taking a very purposed, intent focused approach towards statutory interpretation, which is interesting.
Will: Yeah, it's out of fashion, right?
Dan: Yeah. It's not a strict textualist. Read the words in order to suss out what Congress was really thinking.
Will: Yeah, I mean, I guess this is a well-worn debate, but Sarbanes-Oxley is a large law passed by Congress in the wake of a political scandal, and this is a catch-all provision. Do we have reason to believe that Congress thought really about it at all?
Dan: Yeah, surely not--
Will: It got in there somehow. But I assume if reporters had stopped every member of Congress shortly after the passage of Sarbanes-Oxley and said, “What does it mean to otherwise obstruct an official proceeding?” I would have been like, “Huh? What? Is that in the bill?”
Dan: And honestly, if you had said, “What is the thing you're most concerned about?” They would have said, “Oh, the document shredding and stuff.” But then if you would ask the follow up, you'd be like, so this wouldn't apply to someone who stormed a courthouse with guns blazing to try to stop a trial. They would be like, “No. I mean, yeah, that seems bad. That seems like it should be covered too.”
Will: Or they would have been like, “I don't really know. Is that in the bill?”
Dan: Yeah. “What did my staff put in there? What did we vote on? I don't know.”
Will: Yeah, that'll be for the courts to figure out. I mean, that's one of the reasons I find that version of congressional intent to not be a super helpful concept.
Dan: Yeah.
Will: I do think you can sometimes talk about a constructed congressional intent or something. But then we're back to the canons.
Dan: Yeah. Now, I mean, she has another argument, which is look at some legislative history, look at the overall structure of federal criminal law, that it doesn't seem like Congress was actually intending to just sneak in a sweeping all-purpose obstruction statute into the second part of this provision. Okay, maybe I am willing to accept that argument that in a world where congress has made a bunch of specific choices, this is where we use the word reticulated, which is a word I've only ever encountered in the specific context of describing a legal scheme that has a lot of specific provisions.
Will: Yeah.
Dan: I haven't ever had occasion to use or encounter this word in any other place. I'm sure it has some other uses, but only here. Maybe, okay, this is a elephants in mouseholes type argument.
Will: Yeah. Although, is it a mousehole? I mean, [Dan laughs] I get the argument of like, well, Congress had never done this before, so we think it's unlikely they did it here.
Dan: Yeah.
Will: But they might have done something they never did before. And how would we know if they did or didn't, other than-- [crosstalk]
Dan: Yeah.
Will: Maybe the idea is Congress is unlikely to enact a major statute without somebody saying, “Woo, this is a major change in the law.” But I'm not even sure that's true.
Dan: Yeah.
Will: I mean, I seem to remember part of this also is people were surprised to discover how reticulated and how gappy the various federal rules on obstruction of Justice and destruction of evidence were. And so, part of Sarbanes-Oxley was to close a lot of those gaps.
So, it doesn't seem as fanciful to me to think that somebody said, “Wait, we're enacting a catch-all destruction-- obstruction statue for the first time. That's weird. Isn't there already a catch-all obstruction statute? And there's definitely, “No, actually, it's weird.” It's mostly not, mostly not how it works.” And somebody's saying, “Okay, fine.” Reticulated python is the other thing I've heard of, but I don't actually know what makes it reticulated.
Dan: [chuckles]Yeah, I don't know. It has lots of little, small scales or something or I don't know.
Will: It has lots of complicated statutory provisions.
Dan: I think that's our title, by the way, that's a good one.
Will: So, yeah. What do you think of this from Justice Jackson?
Dan: I don't know. It's a valiant effort, and I enjoyed it as an indicator of the approach she's going to take, future statutory interpretation cases. I just didn't find… And I am open to these let's look at what Congress intended approaches, even if I believe you and I agree that if you asked individual legislatures, they might not have an answer. But I do think maybe there is some idea of the fictional construct of Congress having a fictional intent. And I do think that that's not a crazy way to approach statutory interpretation. Just imagine there's a lawgiver and it's trying to do something rational, and it's our job to make sense of this overall body of law that the lawgiver has provided. I don't dislike that as an approach.
Will: There's a version of it I actually don't dislike either. But when people object to congressional intent, there's both the theoretical objections. There isn't really such a thing as congressional intent or it's not-- [crosstalk].
Dan: Congress is a they, not an it-- [crosstalk]
Will: The real law, yeah. Which I think are correct. But then they're also just the practical objections. When people go around confidently asserting what Congress's intent was, when judges have to actually do that in specific context, they're not very good at it.
Dan: Yeah.
Will: And I guess this is one.
Dan: I mean, I think they're not good at it as an empirical descriptor. But maybe we don't think of it that way. Maybe we think of it as we've been given a bunch of instructions, we're trying to interpret it in a way that does a Dworkinian fit and justification to make sense of the whole tapestry of the law. And this is the way that makes the most sense.
Will: Okay. All right, now you're coming around to my whole code argument, I think.
Dan: I'm not rejecting it. I'm not endorsing it. I'm open. I'm always open to a lot of different arguments.
Will: My last comment on this. So, in Yates, the fish shredding case, the dissent was Kagan, Scalia, Kennedy, and Thomas. Scalia and Kennedy, of course, are not in the court anymore for Fischer. Kagan joins the Fischer dissent, written by Justice Barrett, which makes sense to me. But Justice Thomas, who thought a fish was a tangible object, is in the majority. He doesn't think that January 6th is the obstruction of an official proceeding.
Dan: And he's one of the most textualist Justices.
Will: I thought he was.
Dan: Yeah. I mean so--
Will: Now, maybe he's just stare decisis. He's like, “Well, if fish isn't a tangible object, then Congress isn't a proceeding.”
Dan: But first of all, not clear Yates has much statutory stare decisis effect because there's no majority. And second, that isn't really the ground on which the majority is hanging its hat for the most part. And third, he does not really believe in stare decisis much at all. So that doesn't seem to work. I mean, he's certainly opening himself up to the criticism that people are going to have that he's corrupt conspirator in January 6, Ginni Thomas was involved, blah, blah, blah.
Will: Yeah, I don't believe that.
Dan: I'm not sure. Yeah, I think it's not that naive, not that simple.
Will: Now, Judge Katsas who wrote the decision below, which is now basically vindicated by the majority, was also, “Is he a Thomas clerk? He's close to [crosstalk] Thomas--
Dan: I believe that to be the case, yeah.
Will: Yeah. So, there's some consistency there. You can imagine maybe that view would carry some weight.
Dan: There is this other thing we didn't really ever get to, which is there is this other limitation in the statute corruptly, which might, depending on how it's interpreted, and the court isn't going to tell us how it's interpreted and nobody in the court seems to really be sure how it's supposed to be interpreted. But that might provide a lot of the limiting, if we're worried about the breadth of the statute.
Will: Yes, I agree. In the DC circuit below, this was Justin Walker. So, there was a three-judge panel. One member of the majority had this relatively normal, broad textualist approach. Judge Pan, then Judge Katsas dissented, and Judge Walker concurred in the majority judgment, but only because he was willing to read the word corruptly to do a lot of work and requiring the act, the intent to procure an unlawful benefit. And then, so my favorite part in the DC Circuit, I think all the Judges dropped footnotes about which of the opinions was controlling. Judge Walker dropped a footnote saying, “To be clear, my vote is the controlling vote under Marks [Dan laughs] because I only agree conditional on this corruptly interpretation.” And then Judge Pan dropped a competing footnote. It's like, “No, that doesn't make you controlling because Judge Katsas and I both agree that the word corruptly doesn't do a lot of work and that's pretty funny.”
Dan: Yeah. And I don't totally know what to make sense of that phrase. It is a little vague. In a perfect world, Congress would legislate a little bit more clearly than that. When we're talking about mens rea, it seems to be inviting a lot of judicial lawmaking there to try to make sense of it. But I could imagine, maybe if someone tries to stop a court proceeding because there's like a hurricane coming, maybe we don't want that to be covered as, by an obstruction statute because it's not corrupt, it got a good motive.
Will: We could talk about this more also because corruptly is also in the statute in Snyder’s, so we can circle back to it.
Dan: Yeah, yeah.
Will: I don't know if corruptly can solve the overlap problem the majority cares about because corruptly applies to both of them. Whatever corruptly is, it's corruptly due to documents and [crosstalk] proceedings.
Dan: No, it doesn't solve that problem. But to the extent that we're worried about just breadth.
Will: Yeah. Right. You could even imagine if you try to stop a proceeding because you believe it is an unlawful miscarriage of Justice, you believe that the election is being stolen and you're the only line of defense, you could imagine an argument that's not corruptly, that you lack the mens rea to be corrupt. I think that's where Judge Walker may have been going.
Dan: Something I've always found fascinating and thinking about January 6th, which is that if it were actually true that an election was in the process of being stolen-
Will: Yeah.
Dan: -I'm not sure what should be on the table. I mean, those are the kinds of situations in which everybody in the streets right now, revolution, maybe, is called for. And so, in part, what's wrong with January 6th is the fact that in my view, and I think the [chuckles] correct view, in most people's view, and hopefully your view, is it premised on a lie, right?
Will: Yeah.
Dan: Not that there should never be any circumstances under which non peaceful attempts to disrupt government activity should be permitted. I don't know. I'm not saying it should happen, but I think it's actually a morally fraught, complicated question.
Will: Yeah. This is actually something Mike Paulsen and I wrestled with in our section 3 article. And we even have a footnote. It says now, “What if the shoe were on the other foot? What if Trump had somehow succeeded in unlawfully holding apparent office after January 20th, 2021? Would comparable actions by Biden supporters have constituted insurrection? We think not. The true facts matter. A rebellion against lawful government is rebellion but acts of counter insurgency against an attempted coup d'etat are not.” And I think that has to be right. No, I also think, at least in the Section III context, I'm not sure this is true for the criminal context, that mistake of insurrection is not a defense, because this really came up during the civil war. There were lots of people who sincerely believed the south had a constitutional right to secede and sincerely believed the north was acting unconstitutionally. And it's very clear in that context that that was not a defense to the later proceedings against them. But that's not the nature of things.
Dan: Yeah, I mean, the court has said you can't be guilty of criminal tax evasion if you genuinely believe you don't owe the taxes. This is the famous case of Cheek where this guy had bought into all this, bogus stuff by tax deniers that said, “There's actually no provision in the US code that says you have to pay taxes.” And the court said, “Well, you have to instruct the jury that if you really, really, really, really believe that he doesn't have the requisite mens rea.”
Will: Wages are not income. The 16th Amendment was not lawfully enacted.
Dan: I think he was actually, he does end up getting convicted on retrial.
Will: Isn't that ludicrous though?
Dan: It is in some ways. I think there might be overarching policy concerns about that led the court to want to interpret the statute that way. Maybe there's a concern that if you don't, there's all sorts of cases where people don't pay their taxes or screw up their taxes, and maybe a concern that, we don't want to make all errors in taxes turn into criminal violations.
Will: But in lots of cases, we say, it has to be a reasonable belief. If you have a reasonable and good faith belief, then maybe you're not a criminal.
Dan: Yeah, yeah. And the court made clear, it doesn't have to be reasonable belief.
Will: A case where you have a genuine but ludicrous belief. Maybe it's also a practical problem that it's easy to claim you had a genuine ludicrous belief, and then people say, “But it's ludicrous,” like, I know.
Dan: It does turn it into a negligence statute. If you start saying what you thought doesn't matter, it has to be, as long as it was reasonable, a reasonable person wouldn't have thought that, the mens rea becomes negligence. [crosstalk]
Will: Well, the mens rea, as to the law, you have to intentionally do it. Intentionally, not pay taxes that a reasonable person. Yeah, I mean, you can make a recklessness, although recklessness may just be a form of negligence.
Dan: Recklessness is different because recklessness requires subjective awareness in criminal law. It has a special meaning in criminal law. Requires subjective disregard of a risk. Conscious disregard of a risk. Negligence is objective. Recklessness is subjective.
Will: Okay, I'm suspicious.
Dan: It's in the model penal code.
Will: Yeah. Who enacted that?
Dan: [laughs] Nobody.
[chuckles]
Will: Okay, should we talk about other case?
Dan: Okay, so, Snyder, this one also got some attention, generated some frustration with the court.
Will: Yeah. This one, the facts are much less high profile than the facts of Fischer, although entertaining in their own right. The case comes out of my home state or original home state of Indiana, the town of Portage, where I've spent some time.
Dan: It's not Portage.
Will: It is not Portage, a population of 38,000 people. And the city of Portage awarded some contracts to a local trucking company to purchase some trash trucks. And then the next year, the company gave $13,000 to the mayor.
Dan: Under a ambiguous… maybe he had a consulting relationship. Does seem based on the facts, that this was maybe not on the up and up.
Will: Well, that's part of the question, yes. So, like Fischer, he's actually charged in 7th Circuit with tons of different crimes, like tax evasion and various forms of bribery and whatever. But the charge that comes to the Supreme Court is: assume that there was no explicit quid pro quo. They didn't make a deal in 2013. I'll give you $1.1 million in contracts if you cut me-- what is that, like 1%? You give me my 1%. Assume they didn't do that, is that's still a crime?
Dan: So, everybody agrees that the statute in question, Section 666 covers bribes.
Will: Yes.
Dan: Bribe is the agreement in advance. Payment doesn't have to be in advance, but there has to be an agreement in advance.
Will: Right.
Dan: Gratuity is just the payment after the fact.
Will: But without the advance agreement?
Dan: Without the advance agreement.
Will: Right. That's why it's gratuitous. It's like there's no contract. There's no meeting of the minds.
Dan: It's like the difference between a mandatory service charge at a restaurant and an optional tip.
Will: Yeah. So, the statute, 18 U.S.C. 666, (a)(1)(B) applies to whoever corruptly solicits or demands for the benefit of any person or agrees to accept anything of value from any person intending to be influenced or rewarded in connection with any business transaction or series of transactions. So, intending to be rewarded, corruptly, accepting a thing of value, intending it as a reward, is the core gravamen. And the question is, does that include gratuities, not just bribes?
Dan: Court says, “No, does not include gratuities.” And opinion by Justice Kavanaugh gives us not one, not two, not three, not four, not five, but six reasons.
Will: Huh-huh.
Dan: So, let's go through them first text. So, he says, “Congress modeled the text of the statute on a different provision, which is the bribery provision for federal officials.”
Will: Yeah.
Dan: Now, the dissent actually says that's not the case, but that's what he says. So, it's about the bribery provision. It looks like the bribery provision.
Will: Yeah. For background, there are two separate statutes. There's a federal bribery provision for federal officials, and then there's 666, which is basically the rule for state officials that comes out of the spending clause. So, it's like, state officials who are doing anything involving money where there's a federal hook. So, he says, we should read this distinction in 201 and the federal library statute, and we should interpret the statute to look like half of that statute, but not the other half.
Dan: Second statutory history. He says, “Originally the statute had stuff in it that covered gratuities too, but then Congress changed it and got rid of that stuff.” Now, we don't have anybody in Congress saying, “That's what they were trying to do.” But he says, “Perhaps Congress in 1986 concluded that federally criminalizing state and local gratuities would significantly intrude on federalism.” Perhaps they did, perhaps they didn't. I don't know. Third, statutory structure. He says, “Well, if it prohibited both bribes and gratuities in the single provision, that would be highly unusual, if not unique.” Everywhere else, these two things are written as two separate crimes. Statutory punishments are high, and a federal official who accepts a bribe is punishable by up to 15 years, whereas accepting a gratuity is just two years. But here the statute has 10-year maximums for both. Why would Congress have wanted to do that? Fifth, federalism, this would infringe on bedrock federalism principles.
Will: The federalism principle that state and local corruption is not a federal problem.
Dan: Yeah. Is this a constitutional argument?
Will: I don't think so, but it doesn't have to be. There's a statute of interpretation principle of federalism.
Dan: But I mean, wouldn't criminalizing bribes also [chuckles] intrude on those same state prerogatives? or this is somehow different because he points out that different states have different rules about when you're allowed to accept a gift.
Will: Okay.
Dan: And that would have been a big deal. And then finally, fair notice. Okay, this would be overbroad and it would violate this idea that people should have fair notice guidance of what criminal statutes prohibit to make this cover as much conduct as the government wants it to cover.
Will: Right. This list is very Breyer-esque [Dan chuckles] Justice Breyer likes to do that. The items in the list are different, like they're different level of distraction.
Dan: This is like Kavanaugh coming into his style as a Justice, which is shoot from the hip a little bit, not necessarily break it down into a bunch of logical steps but give you a bunch of things.
Will: So, I think those provisions, I think, boil down to basically there's a federal bribery statute that has a well-accepted set of distinctions and a set of distinctions that makes sense where there's like harsh penalties for bribes and lighter penalties for gratuities. And we just don't want to or just don't think Congress meant to adopt something much clumsier and broader for state officials. And we can read the same distinction into it. And also, if they were to have done that, especially in the context of state officials, that seems like a real problem because it's going to adopt clumsier, harsher rules for every state and local official while we have a sensible and more articulated set of rules for federal officials. But I feel like the thing that's doing the work in some ways are these hypos.
There are some at page 12 is a $100 Dunkin Donuts gift card for a trash collector wrongful. What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end of term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner or to treat her to a Hoosier game? And there are various permutations of this throughout. Thank you, gift cards, steak dinners, fever tickets.
Dan: Yeah. And don't we think that the word corruptly might be able to address a lot of these concerns?
Will: Well, yeah, that's what, so, I do think those hypos are what's doing the work is, in Indiana, there are public schools where college professors and athletics coaches, I'm sure, regularly receive gifts of some kind from their students. And Justice Kavanaugh thinks that can't be illegal.
Dan: Yeah.
Will: Now, yeah, you might think this is what the word corruptly is supposed to do. And then while it's unclear where to draw that line, you might think that $13,000 from the Peterbilt trucking company is not a Chipotle dinner for your college professor. And there are a lot of tough calls about the difference between the two. But it's odd to think that in order to stop the federal government from criminalizing gifts to your professor, which I'm totally in favor of, we have to allow the trucking company to bribe the mayor of Portage.
Dan: This wouldn't cover us, even though our institutions take federal money, I think this wouldn't--
Will: I think because we're not state or local officials.
Dan: That's true.
Will: And I'm actually against those kinds of gifts in seriousness.
Dan: Yeah, but it does seem like there are other ways to get at those. If the steak dinner is being offered, is a reward to the professor for changing the person's grade wrongfully, I don't know, maybe that should be illegal.
Will: But what if it's a reward for just teaching a class?
Dan: I don't think it's corruptly.
Will: Okay, but you agree it would be a crime to do that in advance, to say, like, “Listen, professor, if you-- [crosstalk]
Dan: If you teach the class the way you would teach it normally?
Will: No. If you say the professor in advance, “I'll make you a deal. If you teach an unusually good class, I'll buy you dinner.” That would be a bribe. That would be a good quid pro quo.
Dan: I mean, I'm not sure that for-- I think that corruptly might take that out of play that I guess-- [crosstalk]
Will: Well, go to the judge and saying, “If you rule in favor of me because the law favors me. I'm not asking to do anything you don't want to do. But honestly, I have a very good case, and if you agree that I have a very good case, I'll buy you dinner.”
Dan: I think at that point, it's too close. It starts to look like a bribe to do something improper. Yeah, but I don't know. I mean, I think that if you give your mailman a Starbucks gift certificate because he's reliable and you get all your mail, yeah, that seems okay.
Will: What if you give your mailman a Starbucks gift certificate because there's a well-known norm that if you don't, the mailman will dump your mail in the snow?
Dan: Yeah, that seems a little troubling. That seems like maybe that person is accepting something to be rewarded in exchange for doing official acts in the same way that like what if it was just-- I mean, it seems like the statute can get at-- I mean, so in criminal law, we have conspiracy liability and aiding and abetting liability. And conspiracy liability, you can punish someone if they agree with someone else in advance to commit a crime. But if two people just commit a crime together without an agreement, it's not a conspiracy, but you can still get them under theory of accomplice liability. In the same way, let's just say it became known in a community that you will never get a contract unless you give a gratuity of 1% to the relevant official who approves such contracts.
There's no agreement, and the official does not solicit these, so we can't get them on solicitation. He just doesn't ever say anything. It is just known that this is the way it works. I don't know. That seems like that should be covered.
Will: Just to make sure, though, of course, the official has to pass to perform for you first because the gratuity comes after. So, yeah, it's not like the official can wait for the gratuity to perform.
Dan: Sure. But let's just say it was known to be a norm. This is the way it works, and the official does it, gives the contract and then gets the tip. And if they don't get the tip, it's just known that you'll never get another contract again. But he never says that, he never solicits it.
Will: Or even you hire facilitators who know this is how it works. I mean, I think you're basically describing the way the state of Illinois worked under Mike Madigan, I believe. And I think he's actually now currently under prosecution. And I read that his prosecution's being a little bit overhauled in light of this ruling.
Dan: Illinois seems to have a little bit of a corruption problem, huh? Haven’t half of your governors been prosecuted?
Will: There was a period of time where there were six living Illinois governors, and three of them were federal prison. [Dan laughs] I think that's no longer true, thanks to-- some of them died in prison and Trump pardoned Blagojevich. [laughs] But I think it's right that in a sufficiently pervasively corrupt state, you can rely on the gratuities, whereas in a less pervasively corrupt place, you need more quid pro quo. But so, how would the corruptly thing work, though? I was trying to think. So, I think, I guess the way it would just go to the jury, it was the idea that just be, there's been some jury instruction about corruptly. And you say to the jury, you've got to decide whether the Chipotle dinner was corrupt or not.
Dan: I think it would be a jury matter. It's an element of the crime. But courts could flush it out with some meaning. I don't have the language in my head, but I can imagine some way to interpret it that gets at the idea that this person is being rewarded for doing their job in a way that is inconsistent with how they would perform it absent the payment.
Will: Okay, so then would the idea be that it might be, if you conclude that they would have given Peterbilt the contract anyway, even without the kickback, then that would be a defense?
Dan: I think so. I think at least it would create reasonable doubt on ‘corruptly’ under my seat of the pants interpretation.
Will: And if you found that a college professor would work a little bit less hard if the students were ungrateful wretches who never gave him stuff, then he could be prosecuted for the Chipotle dinner?
Dan: I think at least if the professor was in the situation where they basically was accepting these gratuities on the understanding that in order as a reward for doing a job in a way that he wouldn't normally do it, then yeah.
Will: Doesn't that seem a little weird though?
Dan: It seems fine to me, I don't know. It seems like it gets at the right distinction. I mean, you might want to just have a rule that said no gratuities just to avoid any kind of line drawing problems.
Will: Well. I guess I might even turn the dial up on corruptly more strictly than that. I might say that it's not enough. The fact that the gratuity is influencing isn't enough to make it corrupt. There are gratuities that are more and less influencing. You could even just imagine a world where there are certain kinds of prizes for good performance or something that are not inherently corrupt. They might be that as long as the influence is healthy and in a prosocial direction and largely just keep doing your job, well, that's good. But then when it's asking you to, it's corrupting. It's in some sense asking you to-- It's not just something you wouldn't do otherwise, would do something in a way you're not supposed to be doing it.
Dan: Yeah, it's perverting Justice. Yeah, something very pejorative.
Will: And taking corruptly seriously would also respond to at least some of the statutory interpretation points because I think the majority says, “Well, this gratuity statute has much higher penalties than the federal gratuity statute.” So, we think it's implausible that Congress meant to criminalize gratuities. But the federal gratuity statute, I think, doesn't have the corruptly qualifier. So, at the same time, you could say, indeed, the majority says, “This looks to us like the bribery statute because of the high mens rea.” But you might say the opposite. You might say, “Well, they're not just penalizing all gratuities, they're penalizing only the narrow subset of corrupt gratuities.” And so, it's not as incongruous to think that they're going to have a higher punishment for those because they're going to pay the penalty.
So, thinking of this in comparison to Fischer and in-comparison to Yates, the fish shredding case, and probably a dozen other cases like this where the court has narrow constructions of criminal statutes, is there a theme? It seems to me like the court is just really not on board with the approach to a criminal statute where you say, “Look, yes, I know it looks broad, but it's supposed to be broad, and don't worry, the system, juries applying some word like corruptly, even with judicial review, are going to sort out the overbroad ones from the not overbroad ones. So, don't worry about it. The court just seems to be categorically unwilling to be reassured.”
Dan: Yeah, I don't know if I would say categorically, because I think we can-- I don't have good examples for you, off the top of my head, but I think we could go back and look at a bunch of other cases where the court is willing to accept broad meanings, broad interpretations of federal criminal statutes. But I do think that in general, that the government doesn't buy the trust us-- I mean, the court doesn't buy the “trust us, we're the government” argument. That is reasonable.
Will: I guess that's what I mean. It's not that the court never will interpret a statute broadly, but the view that, like, “Well, we're okay with this interpretation because there's somebody, we can trust who will keep it in check later that move either got to be willing to accept a broad one or they're not going to trust him.” Now here, though, it's not trust the prosecutors. It's not, like, “Don't worry, we won't charge the Chipotle gift cards.” There's a word in the statute that gives the jury the power to stop us, so don't worry, trust them. And even there, the court seems unwilling to trust them.
Dan: I mean, the court may be concerned that that word is too vague. Now if the mens rea term had been much more specific and clear, maybe the court would feel differently.
Will: Yeah, I don't know how much more specific you can be.
Dan: Yeah. Well, I mean, you could certainly be more specific than corruptly. Whoever accepts a gratuity that the person knows was offered in exchange as a reward for conduct that was inconsistent with one's professional obligations... I mean you could imagine any number of different things. Can we talk about the Gorsuch concurrence?
Will: Yeah.
Dan: Short. Just over a page. But he says, “Look, the court doesn't say they want magic words, but here's what's really going on. We're doing the rule of lenity. This is the idea, basically, when there's any ambiguity in the statute, the tie should go to the defendant.” Justice Gorsuch likes this and has been wanting to resurrect it. The court as a whole does not particularly like it and has not liked it for many decades.
Will: Well, or have they?
Dan: Well, he tries to say, “Here's a bunch of other cases where the court has ruled for defendants on statutory interpretation rounds, and that's what was really going on.” Lenity. He seems to have a pretty broad interpretation of it, though. He says, “The bottom line is that for all those reasons, any fair reader of this statute would be left with a reasonable doubt about whether it covers the defendant's charged conduct. And when that happens, judges are bound by the ancient rule of lenity to decide the case, as the court does today, not for the prosecutor, but for the presumptively free individual.”
Will: Yeah. That is not the canonical statement of the rule of lenity, doctrinally.
Dan: Yeah. So, basically, as long as you have any reasonable doubt about whether you're covered.
Will: A fair reader, whatever reasonable doubt.
Dan: Yeah.Well, I mean, isn't that already incorporated into reasonable doubt?
Will: I'm never quite sure when you layer these things on top one otherwise-- [crosstalk]
Dan: Then government loses.
Will: But isn't he also kind of right? It does seem to me like there are just tons of these cases where the court-- there was Bond, the chemical weapons case, about how poisoning goldfish isn't a chemical weapon, McDonald, the corruption case about the governor of Virginia. I mean, he cites bunch.
Dan: The court does not always rule for defendants in statutory interpretation cases.
Will: Not always.
Dan: If this principle were correct, it always should, because these cases only reach the court if there's circuit split. And anytime there's a circuit split, doesn't that suggest that someone had a reasonable doubt about whether it covered the defendant's conduct?
Will: Well, this goes back into the votes of other judges’ problem or the argument with [crosstalk] problem. But I just mean, if you were-- [crosstalk]
Dan: Normally, the principle is you do all the methods of statutory interpretation even if it's 51/49, if the government wins, your confidence is 51/49, that government is right, the government wins. And he's saying, “You now need to be convinced beyond a reasonable doubt that the--"
Will: So, I don't know what the numbers are, but I just mean the court has a lot of federal criminal statute cases where it does a bad job interpreting the statute, and those errors go in the direction of the defendant. Obviously, what's going on is that the court is somehow putting a thumb on the scale. Now it's doing it only some of the cases, not all of them, we could figure out whether it's the right ones or not, but it just seems like there is a nontextual principle that is applying in these cases, that's like sometimes the government loses cases even when the statute says they should win.
Dan: Yeah, I mean, sometimes. But I mean, again, we're just focusing on a few cases. It's certainly not accurately descriptive of federal criminal law in the lower courts. Anytime some defendant could point to doubt, reasonable doubt about whether the statute covers his conduct, he wins. No way.
Will: No although-- [crosstalk]
Dan: That’s just not how criminal law works.
Will: Sure, he wants it-- I mean, I take part of the reason of writing this is to try to take the pattern, put it into a doctrine, and try to make fetch happen.
Dan: But it's just would be a significant change to federal criminal law. And I don't love this for how it pretends that's not the case.
Will: Yeah. Although again, I'm not sure it's a change in the-- What I like about this is when the court granted Snyder, I was like, “Oh, I think I know what they're going to say.” I don't really understand why, but I know what they're going to say.” The court granted Fischer. I was like, “Obviously they're going to rule for the [unintelligible [01:08:21] dissent, even if you read the statute and don't think that's the way the court normally interpret statutes.” And one classic critique of that is, “Oh, the court is unprincipled and just likes corrupt mayors and insurrectionists, or what they call them, rioters in Fischer.” But I like the attempt to say that, “No, there's a different thing going on here. And this is what's going on here, even if it's not going on all the time.”
Dan: Yeah, but it's clearly not going on all the time.
Will: No. Although what's your best counterexample?
Dan: I don't have a great recent example for you from the last couple terms.
Will: I'm sure they exist, and I know they exist a lot in the lower courts. I don't mean to put out there, but it'd be interesting actually to try to have somebody do a systematic canvas even just the Supreme Court cases.
Dan: Well, someone has done some version of that, which is Joel Johnson at Pepperdine, who I have mentioned in the past, a friend of the show. He has an article. I'm trying to see whether this article is up on SSRN, where he looked at use of interpretive canons by the Supreme Court in criminal statutory interpretation cases recently. Yeah, it's called Ad Hoc Constructions of Penal Statutes. He looks at the 43 cases from 2013 through 2022 terms.
Will: I think. We now have some new entries.
Dan: All right. There is a dissent in this case by Justice Jackson. I thought it was pretty good. I thought made some good points, seemed to call out the majority for some weak parts of the reasoning, one of which was how the majority claims that this statute is just based on the federal bribery statute for federal officials and that it was amended, that Congress maybe amended it to take away stuff about gratuities. Justice Jackson points out that, “Ah, actually that was supposed to be like basically a technical amendment. Maybe it wasn't supposed to change that. I didn't see a great response to that in the majority.” So, I guess the court got both of these wrong, in my view.
Will: Yeah, I think so.
Dan: Okay.
Will: Unless you believe in the new Gorsuch rule.
Dan: Which I don't, seems too broad. Okay, lead us out.
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Email at pod@dividedargument.com with feedback, suggestions for other cases to cover. We've still got several more exciting episodes in the can as we go into August.
Dan: Visit our website, dividedargument.com, where we have transcripts of the episodes. store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com and leave us a voicemail 314-649-3790. And if there's a long delay between this and our next episode, it's because someone corruptly obstructed our recording and now will face no sanction for doing so.
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