The Meaning of Corruption: What White Collar Defense Attorneys Can Take Away from January 6 Capitol Riot Cases (and Potentially from the Prosecution of Donald Trump)

White collar defense attorneys typically advocate on behalf of corporations and executives in the worlds of business and finance. It may not seem natural, then, to suggest that white collar lawyers would do well to pay attention to case law emerging in cases worlds away from the white collar realm: prosecutions of participants in the riot at the United States Capitol on January 6, 2021. But they should. Though the facts of these cases are far afield from typical white collar fare, many of them raise the issue of what it means to act “corruptly”—a mens rea question that applies to a broad range of white collar offenses. 

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).

Courts analyzing the meaning of “corruptly” as used in January 6 cases have settled upon three possible definitions. As Judge Pan summarized in Fischer, past decisions have suggested that “corruptly” might mean: 

• “[W]rongful, immoral, depraved, or evil.” See 64 F.4th at 340 (opinion of Pan, J.) (quoting Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005). 
• Acting “with a corrupt purpose, through independently corrupt means, or both.” Id. (internal quotation marks and citation omitted). This is the interpretation the government urged in Fischer.¹  
• Acting “voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Id. (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995) (Scalia, J., concurring and dissenting in part)).   

To Judge Pan’s list, we might add a fourth potential definition, which at least in the past has been the position of the United States Department of Justice: “The word corruptly simply means with a bad or evil purpose. It is also frequently defined to mean the same thing as willfully, and thus to connote specific intent.” DOJ Criminal Resource Manual § 2044 (discussing corruptly as used in the bribery statute, 18 U.S.C. § 201(b)). The Criminal Resource Manual is no longer current and the reorganized Justice Manual section on bribery does not offer a definition of “corruptly,” but one can hear echoes of the Criminal Resource Manual’s “bad . . . purpose” and “specific intent” definitions in the government’s Fischer position that a “corrupt purpose” suffices. The Criminal Resource Manual interpretation arguably reduces “corruptly” from a heightened mens rea requirement to a synonym for a mens rea of specific intent—a reading that fails to give distinct meaning to the term “corruptly” and risks criminalizing innocent conduct.²   

In Fischer itself, Judge Pan and Judge Walker formed a panel majority to reverse the district court’s dismissal of January 6 defendants’ § 1512(c)(2) indictments; their analysis turned principally on other elements of § 1512(c)(2). Judge Pan found it unnecessary to reach a precise definition of “corruptly,” reasoning that under any potential definition, the defendants’ alleged behavior—undertaking the independently unlawful action of assaulting law enforcement officers during the riot while intending to confer upon their preferred candidate the benefit of winning an election—was “corrupt.” Fischer, 64 F.4th at 340 (opinion of Pan, J.). Judge Walker, for his part, concluded that “corruptly” “requires a defendant to act “with an intent to procure an unlawful benefit either for himself or for some other person.” Id. at 352 (Walker, J., concurring in part and concurring in the judgment).³ A pending case, United States v. Robertson, No. 22-3062 (D.C. Cir.), also tees up the issue. At oral argument, two members of the panel (Judge Pan and Judge Pillard) expressed skepticism of any requirement of an intent to procure a benefit for oneself or another, but also seemed open to the possibility of resolving the case on the narrow ground that using an independently unlawful means suffices for acting “corruptly,” even if the element can be satisfied in other ways. Fischer and Robertson are not likely to be the last word on the subject. One of the Fischer defendants filed a petition for certiorari⁴ presenting the question of the definition of “corruptly” in § 1512(c)(2), and with § 1512(c)(2) promising to play a central role in the federal prosecution of Donald Trump, the Supreme Court may face multiple opportunities to address the issue.
 
White collar defense attorneys should pay attention to how the development of the law on the definition of “corruptly” in § 1512(c)(2) shakes out, and consider what risks and opportunities the ultimate resolution of the issue poses to any clients charged under one of the many federal statutes requiring a “corrupt” mens rea. Any circuit or Supreme Court-level adoption of Judge Walker’s narrower rule⁵ might yield fruitful arguments for defendants. To be sure, even Judge Walker’s requirement of an intent to procure a benefit is not the narrowest possible construction of that word—Judge Walker’s and Judge Pan’s opinions appeared to agree that such a requirement could be satisfied by an intent as "diffuse" as wishing to secure the presidency for a favored candidate. Fischer, 64 F.4th at 381, (Katsas, J. dissenting); id. at 340 (opinion of Pan, J.); id. at 361 (Walker, J., concurring in part and concurring in the judgment). Still, there are situations to which the “benefit” definition might not neatly apply. A bank employee who hides evidence of losses from a regulator might act out of a desire to protect her employer from embarrassment, not out of a desire to obtain any affirmative benefit for the employer. See 18 U.S.C. § 1517. And a businessman might bribe a lender to withhold a loan from a rival not out of a desire to obtain any competitive benefit, but simply out of a spiteful wish to see his rival harmed. See 18 U.S.C. § 215(a). Have these individuals acted “with an intent to procure an unlawful benefit either for [themselves] or for some other person”? Fischer, 64 F.4th at 352 (Walker, J., concurring in part and concurring in the judgment).

Even adoption of the government’s broader definition—“corruptly” is satisfied either by acting in an independently unlawful manner or by acting with a “corrupt purpose”—might offer ammunition for a white collar defendant. “Corrupt purpose” is at first blush a very broad concept. A defense argument designed to force the government into clarifying its concept of “corrupt purpose” might put the government to the choice of arguing for an unreasonably expansive definition (perhaps by resorting to vague concepts like “immoral”) or offering a narrowing construction that does not as neatly apply to the conduct charged. At oral argument in Robertson, government counsel offered several ways of satisfying its proposed “corrupt purpose” definition, including using deceit or dishonesty, seeking to obtain an unlawful advantage or benefit, or seeking to violate a legal duty. Oral Argument at 37:20, Robertson, 22-3062. Again, it is not hard to imagine means by which an individual may commit the actus reus of one of the corruption crimes—offering a gift to influence a loan decision, for instance—without engaging in any deceit, violating any independent legal duty, or seeking to obtain an unlawful benefit. Government refusal to offer narrowing constructions might expose the “corrupt” mens rea to a constitutional vagueness challenge. See Fischer, 64 F.4th at 382 (Katsas, J., dissenting). 

Of course, the definition of “corruptly” might vary between § 1512(c)(2) and other statutes.⁶ Still, lawyers defending against prosecutions under statutes with a corruption mens rea would do well to draw lessons from the emerging case law around the use of “corruptly” in January 6 cases.

¹ At oral argument in United States v. Robertson, No. 22-3062 (D.C. Cir. May 11, 2023), the government seemed to clarify that by “independently corrupt means,” it means “independently unlawful means” or “independently criminal means.” Oral Argument at 38:25, Robertson, No. 22-3062.  
² Any definition that reduces “corrupt” to equate to specific intent would be problematic, both as a matter of statutory interpretation and policy. A proper interpretation must take account of Congress’s decision to use the term “corruptly” rather than other common mens rea terms like “with intent to” or “willfully.” Moreover, statutes requiring a “corrupt” mens rea for conviction often cover conduct that can be undertaken intentionally, but innocently. To take a § 1512(c)(2) example, a lobbyist might intentionally attempt to “influence” an “official proceeding” in any number of entirely proper ways, such as by submitting a white paper to congressional committee staff. Cf. United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990) (per curiam), opinion withdrawn and superseded in nonrelevant part on reh’g, 920 F.2d 940 (D.C. Cir. 1990). Without the requirement that the lobbyist act “corruptly” (not just with specific intent to influence the proceeding), § 1512(c)(2) could render such standard advocacy criminal. Cf. North, 910 F.2d at 941–42 (Silberman, J., concurring in part and dissenting in part) (observing, with respect to a similar provision in 18 U.S.C. § 1505, that “it simply makes no sense to construe [‘corruptly’] to mean only that one must do it with the intent to obstruct the inquiry or proceeding. . . . If attempting to influence a congressional committee by itself is a crime, we might as well convert all of Washington’s office buildings into prisons.”). Thus, in order to separate innocent intentional conduct from criminal intentional conduct, “corruptly” must require something more than specific intent. Cf. Arthur Andersen LLP, 544 U.S. 696, 706–07); United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (noting that in § 1512(c) “the word ‘corruptly’ is what ‘serves to separate criminal and innocent acts of obstruction.’” (citation omitted)). 
³ Citing the test for determining the holding of a fractured Supreme Court decision, Marks v. United States, 430 U.S. 188, 193 (1977), Judge Walker suggested that his interpretation might bind future D.C. Circuit panels as the narrowest ground of any opinion concurring in the judgment. 64 F.4th at 362 n.10 (Walker, J., concurring in part and concurring in the judgment). Judge Pan disagreed. Id. at 341 (opinion of Pan, J.).  
⁴ Pet. for a Writ of Certiorari, Miller v. United States, No. 23-94 (S. Ct. Jul. 28, 2023). 
⁵ To be sure, the Robertson oral argument hints that Judge Walker’s definition may not prevail in the D.C. Circuit: two members of the Robertson panel seemed inclined to disagree both with Judge Walker’s interpretation and his assertion that his Fischer opinion controls under Marks. Still, a Supreme Court known in recent years for its openness—across the ideological spectrum—to narrowing the scope of political corruption law may step in and take a closer look at narrower definitions. See, e.g., McDonnell v. United States, 579 U.S. (2016). And no matter what happens in the D.C. Circuit, lawyers and courts may invoke Judge Walker’s reasoning as persuasive authority elsewhere, at least until the Supreme Court steps in. 
⁶ Congress has specified that as used in 18 U.S.C. § 1505, which prohibits “corruptly” obstructing, impeding, or endeavoring to influence the proper administration of law in connection with proceedings before federal agencies or congressional bodies, “corruptly” means “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” 18 U.S.C § 1515(b). But other uses of “corruptly” throughout the criminal code lack a specific statutory definition.