The Meaning of Corruption (Revisited): United States v. Robertson and Further Considerations for White Collar Practitioners from the D.C. Circuit’s January 6 Docket

A previous post examined interpretations of the statutory term “corruptly” in case law arising from prosecutions of participants in the January 6, 2021 Capitol riot.  A significant new case from the D.C. Circuit, United States v. Robertson, 86 F.4th 335 (D.C. Cir. 2023), clarifies the meaning of “corruptly” in the January 6 context and offers further considerations for attorneys handling cases under the myriad white collar crime statutes that also cover conduct that is undertaken “corruptly.”  

Update: United States v. Robertson

The previous post noted that many of the January 6 rioters have been charged with violating 18 U.S.C. § 1512(c)(2), which states: “[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.

Former President Donald Trump has also been charged with violating 18 U.S.C. § 1512(c)(2), and, since the original post, has moved to dismiss on the ground that he did not act “corruptly.”  Def.’s Mot. Dismiss, ECF No. 114, United States v. Trump, No. 23-cr-00257 (D.D.C. Oct. 23, 2023).  As the previous posted noted, courts’ interpretations of the term “corruptly” will have relevance for white collar defendants in other contexts. Not only does § 1512(c)(2) itself often serve as a basis for more routine white collar prosecutions, there are also plenty of other white collar criminal statutes that employ the “corruptly” mens rea, such as statutes criminalizing corruptly obstructing a regulatory examination of a financial institution (18 U.S.C. § 1517) and offering gifts in connection with procuring loans or influencing other business of financial institutions (18 U.S.C. § 215(a)).

After the previous post’s discussion of a D.C. Circuit panel’s fractured analysis of the meaning of “corruptly” in United States v. Fischer, 64 F.4th 329, 341 (D.C. Cir. 2023), on October 20, 2023, a panel of the D.C. Circuit issued Robertson, a decision clarifying the meaning of the term “corruptly” as used in § 1512(c)(2). The Robertson majority opinion first observed that the function of the “corruptly” element is to “delineate[] whether a defendant’s conduct is culpable.” 86 F.4th at 364.  In other words, this element separates innocent (but intentional) efforts to “influence[] or impede” an official proceeding—such as through lobbying a congressional committee’s members to delay a vote—from improper efforts of the sort Congress intended to criminalize.  See id.; 18 U.S.C. § 1512(c)(2). Next, the opinion analyzed case law to conclude that “‘corruptly’ in obstruction statutes can be proved in a variety of ways,” namely by proving either that a “defendant acted with a corrupt purpose or via independently corrupt means.” Robertson, 86 F.4th at 367. The Robertson majority then focused on the latter method of proving “corruptly”—showing that the defendant acted via “independently corrupt means”—and reasoned that this category necessarily includes as a subset engaging in conduct that is “independently unlawful.” Id. at 369–70.
 
On this ground, the panel upheld the defendant’s conviction against an insufficient evidence challenge. The court found ample evidence in the record to support a jury conclusion that the defendant, through his behavior at the Capitol riot, had sought to obstruct the election certification by means that were independently unlawful, even independently felonious: he had used a large “stick to hit a police officer and swipe at another” as he forcibly entered the Capitol. Id. at 370 (noting that the defendant had also been charged with and convicted of the felony of violating 18 U.S.C. § 1752(b)(1)(A), which prohibits entering a restricted building while carrying a deadly or dangerous weapon). Because the defendant had obstructed the proceeding by engaging in conduct that was independently felonious, the defendant had carried out his obstruction by “independently corrupt” means, and therefore had done so “corruptly.” See id. at 371.
 
In reaching this holding—coupled with the conclusion that the “corruptly” element may also be proven by showing that the “defendant acted with a corrupt purpose”— the Robertson majority rejected a narrower definition of “corruptly” advanced in Judge Henderson’s dissent. Id. at 388–98. Judge Henderson would have held that a defendant acts corruptly only if the defendant acts “with the intent of obtaining an unlawful benefit for himself or another.” Id. at 398 (Henderson, J. dissenting).¹

Before proceeding, it is worth noting one other significant development since the original blog post: On December 13, 2023, the Supreme Court granted certiorari in Fischer to review a question regarding the actus reus of § 1512(c)(2). The Fischer cert. petition presents the question of whether, as the Fischer defendant contends, § 1512(c)(2) extends only to obstructive acts that relate in some way to impairment of “investigations and evidence,” and therefore does not extend to storming the Capitol on January 6.  Pet. for a Writ of Certiorari, Miller v. United States, No. 23-94 (S. Ct. Jul. 28, 2023); see Fischer, 64 F.4th at 335. Notably, as Steve Vladeck explains in a post at Lawfare, the Supreme Court did not grant certiorari in related cases that would have presented not only this actus reus question, but also the mens rea question regarding the meaning of “corruptly.” Thus, Robertson remains the last word on the meaning of “corruptly” for now, but with the Supreme Court showing increasing interest in January 6 cases, that could soon change.

Considerations for Attorneys Handling White Collar Corruption Cases

The holding of Robertson—that one way of proving that an individual acts “corruptly” for purposes of § 1512(c)(2) is to prove that the individual engaged in the obstructive act by conduct that was felonious in and of itself and therefore “independently corrupt”—might not matter much for defendants charged under the other white collar corruption statutes. After all, in contrast to January 6 defendants, the conduct underlying charges against white collar defendants is not, taken in isolation, likely to be independently felonious or unlawful. For example, a financial institution employee who has shredded documents that turn out to be relevant to a regulatory examination might have corruptly obstructed the examination in violation of 18 U.S.C § 1517—depending on the context in which the employee undertook the shredding. But unlike striking a police officer with a stick while forcing entry into restricted Capitol grounds, the mere act of shredding is not by itself unlawful. Corporate workers routinely shred documents as a matter of course, and many corporations have a routine policy requiring shredding at regular intervals, “in part to keep certain information from getting into the hands of others.” See Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005). To take another hypothetical, there is nothing inherently unlawful about taking an acquaintance on an all-expenses-paid vacation weekend. But if the acquaintance happens to be a bank loan officer and the vacation host offers the trip in an effort to influence the officer’s decision regarding a risky loan sought by the host, the transaction might violate 18 U.S.C. § 215(a)’s prohibition on corruptly offering items of value to financial institution employees with the intent to influence a transaction. That is, taking the loan officer on an expensive trip is not a crime independently of 18 U.S.C. § 215(a)’s prohibition.²

Still, the reasoning of Robertson offers guidance for white collar cases. In the absence of any independently unlawful (or independently malign) conduct, prosecutors will likely have to prove their white collar corruption cases under the alternative way of establishing corrupt intent Robertson identified: by proving that a “defendant acted with a corrupt purpose.” Robertson, 86 F.4th at 367–68 (“[U]nder circumstances where a defendant’s conduct is not inherently corrupt nor his means independently wrongful, ‘corruptly’ can be proved by examining the defendant’s purpose.”). On its face, this would appear to be an expansive standard that hands the prosecution latitude to prove the “corruptly” mens rea in any number of ways. Certainly, the “corrupt purpose” definition appears to allow for conviction under a wider array of circumstances than the Robertson dissent’s “improper benefit” interpretation would have. But a closer look at the Robertson majority’s reasoning suggests two opportunities for defendants—and risks for prosecutors—that practitioners on both sides of white collar corruption cases should consider. 

First, defense attorneys can look for ways to use the broad and malleable “corrupt purpose” standard to argue for reasonable doubt (and for jury instructions consistent with such arguments). Of course, to say that an individual acts “corruptly” when the individual acts “with a corrupt purpose” is circular. Cf. id. at 397 (Henderson, J., dissenting). And neither the Robertson majority nor the cases it analyzed offer much in the way of a concrete definition of “corrupt purpose.” The Robertson majority stated that “corrupt purpose” means, “in other words, a purpose that was depraved, evil, or wrongful.”  Id. at 367.  Recall also the previous blog post’s discussion of the DOJ Criminal Resource Manual (no longer in effect), which defined corruptly in the bribery context to include “with a bad or evil purpose.”  DOJ Criminal Resource Manual § 2044.³
  
With the fuzziness of the “corrupt purpose” definition in mind, return to the hypothetical case of a defendant alleged to have paid for a bank officer’s vacation in order to receive a loan for which the host was not qualified. Depending on the evidence, the defense might argue that the vacation gift was not provided for a “corrupt purpose” but really for some other purpose altogether, such as to impress a high-level bank employee who might one day be in a position to offer the host a job. Even if the purpose of the vacation indisputably was to influence the loan decision, maybe the host needed the loan to pay for a costly medical procedure for his sick child, or (to dial down on the drama) to finance a startup that would benefit the community by developing a helpful new technology. Ladies and gentlemen of the jury, can you really conclude beyond a reasonable doubt that such a purpose was “depraved,” or even “wrongful”? Defense attorneys (and prosecutors looking to head them off) should consider analogous arguments that non-corrupt purposes motivated their clients.

Second, when “corrupt purpose” is defined according to terms that demand a subjective moral judgment like “depraved,” “evil,” or “wrongful,” the “corruptly” mens rea term begins to look like it might pose a constitutional vagueness problem. “A criminal law violates the Due Process Clause if it is ‘so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’” Fischer, 64 F.4th at 342 (Opinion of Pan, J.) (quoting Johnson v. United States, 576 U.S. 591, 595 (2015)). As Judge Katsas’s dissent in Fischer pointed out, terms like “depraved” and even “wrongful” call for subjective moral judgment of a defendant’s behavior, which may vary significantly among individual jurors and therefore provide little notice regarding the contours of permissible conduct. Id. at 379–80 (Katsas, J., dissenting) (citing Ricks v. District of Columbia, 414 F.2d 1097, 1106 (D.C. Cir. 1968), in which the D.C. Circuit invalidated a statute on vagueness grounds because “a statute reaching conduct that is not ‘decent, upright, good, or right’ ‘affords an almost boundless area for individual assessment of the morality of another’s behavior’”). So far, January 6 defendants have not succeeded in asserting that the “corruptly” element is unconstitutionally vague as applied to their conduct, because courts have reasoned that concepts like “wrongfully” plainly and predictably apply to their underlying acts, such as (in Fischer) assaulting law enforcement officers. Id. at 342 (Opinion of Pan, J.); id. at 381–82 (Katsas, J. dissenting) (acknowledging that “corruptly” is not unconstitutionally vague “as applied to the extreme conduct alleged here”). 

But a vagueness challenge could very well play out differently in the context of prosecutions under the white collar statutes that employ a “corruptly” mens rea. It is one thing to hold that concepts like “depraved” give fair notice that it is unlawful to assault a law enforcement officer as a way of derailing a congressional proceeding, but it might be more difficult to say that they provide fair notice that taking a loan officer on a trip crosses the line. Even short of a full constitutional challenge, defense lawyers can consider pressing on the malleability of the “corrupt purpose” definition to make arguments for constitutional avoidance, restraint, rule of lenity, and similar limiting constructions that make it more difficult for the judge or jury to conclude that their clients acted “corruptly.” See Arthur Anderson LLP, 544 U.S. at 703 (“We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” (citations omitted and cleaned up)). As noted in the previous post, perhaps to head off vagueness challenges, the government suggested at oral argument in Robertson that “corrupt purpose” should be interpreted to cover concrete sets of conduct: using deceit or dishonesty, seeking to obtain an unlawful advantage or benefit, or seeking to violate a legal duty. Defense counsel can consider invoking the breadth of the “corrupt purpose” definition to force the court or prosecution to fall back to one or more of these narrowing concepts, which might not neatly apply to the conduct charged. For instance, our generous but unqualified loan seeker may not have acted dishonestly or deceitfully; he may have been up front about what he expected in return for treating the loan officer to a vacation.  

¹ This was also the reading Judge Walker advanced in his separate opinion in Fischer, as discussed in the previous post. Indeed, Judge Henderson would have borrowed the Marks rule for determining the holding of a fractured Supreme Court decision to treat Judge Walker’s Fischer opinion as binding as the narrowest holding of the fractured Fischer decision. Robertson, 86 F.4th at 387–88 (Henderson, J. dissenting) (citing Marks v. United States, 430 U.S. 188, 193 (1977)). The majority disagreed, noting that the D.C. Circuit has never applied Marks to determine the holding of a fractured D.C. Circuit (as opposed to Supreme Court) decision and concluding that Judge Walker’s Fischer reasoning was not in fact a subset of any other opinion’s reasoning, and, therefore, was not controlling as a narrowest holding even under Marks. Id. at 355 (majority opinion). 
² In addition to proving that the defendant acted by “independently unlawful” means, Robertson suggested another similar way of proving that the defendant acted in an “independently corrupt” manner, and therefore acted “corruptly”: by showing that the defendant’s means of carrying out the offense was “inherently malign” and therefore independently corrupt. 86 F.4th at 367. A litigant paying off a judge, for example, seems necessarily corrupt, however one precisely defines that term. Perhaps this is because we understand the judge to have a distinct duty, independent of any federal bribery or obstruction of justice statute, to make an impartial decision. Cf. Fischer, 64 F.4th at 355 (Walker, J., concurring in part and concurring in the judgment) (discussing historical definitions that associate corruption with obtaining advantages “inconsistent with official duty” (quoting United States v. Aguilar, 515 U.S. 593, 616–17 (1995) (Scalia, J., concurring). Put another way, it is difficult to imagine a situation in which there is a non-culpable explanation for a litigant giving a payment to the judge in her case. But cases under the various white collar corruption statutes will not always fit within the “inherently malign” category. Just as it is not independently illegal to shred documents pursuant to a standard corporate document retention policy or to take an acquaintance on a vacation, neither is it “inherently malign” or corrupt to do so—at least not always—even though under the right circumstances these actions can ground corrupt activity.
³ Trial proceedings in the January 6 case United States v. Gundy illustrate the ambiguity (and potential circularity) that arises when application of the “corruptly’ mens rea requires an ill-defined inquiry into the defendant’s “purpose.” The court’s apparent instruction that “corruptly” meant in part acting “with an unlawful purpose” generated jury confusion, including the jury question “What is the difference between ‘acted knowingly’ and ‘act with an unlawful purpose.’” Note from Jury, ECF No. 107, United States v. Gundy, No. 21-cr-00626 (D.D.C. Nov. 9, 2023).