Many of the rioters have been charged with (and convicted of) violating 18 U.S.C. § 1512(c)(2): “[w]hoever corruptly . . . obstructs influences, or impedes any official proceeding, or attempts to do so, shall be fined . . . or imprisoned . . . .” The theory is that the January 6 rioters sought to obstruct Congress’s certification of the 2020 election results. The federal courts in D.C. have spent the last two years adjudicating defendants’ challenges to various elements of this statute. Among the issues courts have had to face are defendant arguments that they did not act with the requisite “corrupt” mens rea and that “corruptly” is unconstitutionally vague. And litigation around the meaning of “corruptly” shows no signs of letting up: in Count Three of his January 6-related federal indictment, Donald Trump stands charged with corruptly obstructing the electoral vote certification in violation of § 1512(c)(2). Indictment, United States v. Donald J. Trump, No. 23-cr-00257 (D.D.C. Aug.1, 2023).
As discussed below, January 6 cases have exposed a significant lack of clarity around the meaning of “corruptly.” Why should white collar defense lawyers care? For one thing, they might find themselves in the position of representing a defendant charged with acting “corruptly” under § 1512(c)(2). Before its time in the spotlight for its use in January 6 cases (including Mr. Trump’s), § 1512(c)(2) figured prominently in white collar cases, such as the prosecution of a lobbyist involved in the Jack Abramoff scandal for allegedly causing the submission of misleading information to a Senate committee and a grand jury. United States v. Ring, 628 F. Supp. 2d 195, 204 (D.D.C. 2009). For another, the statutory language of a “corrupt[]” mens rea is not limited to § 1512(c)(2). Far from it: “there are around 50 other references to ‘corruptly’ in Title 18 of the U.S. Code.” United States v. Fischer, 64 F.4th 329, 341 (D.C. Cir. 2023) (opinion of Pan, J.). Many of these “corruptly” statutes might well ground the sorts of charges even more likely to cause a client to turn to a white collar attorney. These include corruptly obstructing a regulatory examination of a financial institution, 18 U.S.C. § 1517; bribery involving public officials, 18 U.S.C. § 201(b); offering gifts in connection with procuring loans or influencing other business of financial institutions, 18 U.S.C. § 215(a); and impeding the FDIC when acting as conservator/receiver, 18 U.S.C. § 1032(2), (3).
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