United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2023 Decided October 20, 2023 

No. 22-3062 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

THOMAS ROBERTSON, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:21-cr-00034-1) 

Timothy Cone, appointed by the court, argued the cause 

and filed the briefs for appellant. 

James I. Pearce, Special Assistant U.S. Attorney, U.S. 

Department of Justice, argued the cause for appellee. With him 

on the brief was Chrisellen R. Kolb, Assistant U.S. Attorney. 
2 

Before: HENDERSON, PILLARD and PAN, Circuit Judges. 

Opinion for the Court filed by Circuit Judge PAN. 

Dissenting opinion filed by Circuit Judge HENDERSON. 

PAN, Circuit Judge: Defendant-appellant Thomas 

Robertson participated in the riot that took place on January 6, 

2021, at the United States Capitol. The riot interrupted and 

delayed Congress’s certification of the Electoral College vote 

that determined the outcome of the 2020 presidential election. 

A jury convicted Robertson of obstructing the vote 

certification, in violation of 18 U.S.C. § 1512(c)(2). In this 

appeal, Robertson contends that the evidence was insufficient 

to show that he acted “corruptly,” as § 1512(c)(2) requires. He 

also challenges his 87-month sentence, making new arguments 

on appeal that the district court erred in applying two specific 

offense characteristics for obstruction of the “administration of 

justice.” Because the evidence was sufficient to establish that 

Robertson acted “corruptly,” and the district court did not 

plainly err in applying the specific offense characteristics, we 

affirm. 

I. BACKGROUND

A. 

January 6, 2021, was a significant day. It was the day on 

which the United States Congress convened to declare the 

winner of the 2020 presidential election, after certifying the 

Electoral College vote. The vote certification must take place 

on January 6 following an election, after electors have met in 

their respective states, cast their votes for President and Vice 

President, and transmitted their certified and sealed ballots to 

the President of the Senate. U.S. Const. amend. XII; 3 U.S.C 

§ 15 (2018), amended by Consolidated Appropriations Act, 
3 

136 Stat. 4459, 5238 (2022). To certify the vote, the Vice 

President of the United States, acting as President of the 

Senate, “shall, in the presence of the Senate and House of 

Representatives, open all the certificates and the votes shall 

then be counted.” U.S. Const. amend. XII. “The person having 

the greatest number of votes for President, shall be the 

President, if such number be a majority of the whole number 

of Electors appointed.” Id. “Such joint session shall not be 

dissolved until the count of electoral votes shall be completed 

and the result declared.” 3 U.S.C. § 16 (2018), amended by 

136 Stat. 4459, 5240 (2022). The vote certification is thus a 

pivotal moment in the peaceful transition of presidential power 

in the United States. 

Thomas Robertson is an Army veteran, who was 

employed as a police sergeant in Rocky Mount, Virginia. He 

believed that the results of the 2020 presidential election were 

“rigged.” Gov’t’s Suppl. App. (“S.A.”) 110. In the aftermath 

of the election, he repeatedly shared his views on social media. 

He posted messages like the following: “I won’t be 

disenfranchised. I’ll follow the path our founders gave us. 

Redress of grievances (already done) civil disobedience (here 

now) and then open armed rebellion. I’ve spent the last 10 

years fighting an insurgency in Iraq and then Afghanistan. 

[I’m] prepared to start one here . . . .” Id. at 190. Because he 

was “tired of always taking the high road and being beat by 

those who cheat, lie, and [steal] to win,” id., Robertson made 

plans to travel to Washington, D.C., on January 6, 2021, when 

Congress would be in session to certify the results of the 

election. 

Robertson invited two companions to travel with him to 

the District of Columbia on January 6: a work colleague, Jacob 

Fracker, and a neighbor. Robertson packed ready-to-eat meals, 

water, gas masks, and a large stick into his car. He drove 
4 

Fracker and the neighbor to a metro station outside of the 

District; they then took a train into the city. The three men 

attended a rally near the Washington Monument, where they 

listened to speeches by Rudolph Giuliani and former President 

Donald Trump. They then joined a crowd that was headed to 

the Capitol. When they arrived at a lower plaza on the west 

side of the Capitol building, “[a] huge crowd [was] getting 

pretty out of hand.” S.A. 121. The crowd was “yelling” and 

“screaming.” Id. “[P]eople were throwing things,” like “flash 

bangs” and “smoke grenades,” so Robertson and his 

companions donned their gas masks. Id. at 121, 124-25. When 

Metropolitan Police Department officers tried to move through 

the crowd, Robertson blocked their way by standing in front of 

them with his stick in a “tactical” grip that allowed offensive 

and defensive movement. Trial Tr. 521:17–523:23, ECF No. 

108; S.A. 85. Robertson used the stick to hit one officer and 

“swipe[]” at another. S.A. 103. 

Robertson and Fracker followed a group that had broken 

through scaffolding on the west side of the Capitol, heading up 

a set of stairs and into a courtyard just outside the building. 

They crossed barricades and passed outnumbered officers who 

were trying to keep rioters out of the area. As Robertson and 

Fracker went up the stairs, another rioter threw a “stick-like 

object” at officers. S.A. 132–33. 

Although they were briefly separated, both Robertson and 

Fracker entered the Capitol building at around 2:16 p.m., 

minutes after other members of the mob first breached the 

building at 2:13 p.m. Fracker observed rioters climbing 

through windows to gain access to the Capitol. He also saw 

broken glass and overturned furniture, and heard an alarm 

blaring. Robertson and Fracker made their way to the Capitol 

Crypt, where they took “selfie[s]” and other photos of the 
5 

chaos. The Crypt was filled with rioters who began chanting, 

and Robertson pounded his stick on the floor to their beat. 

When Robertson entered the Capitol building, the House 

and the Senate “were meeting in both the House and Senate 

chambers of the Capitol to certify the vote count of the electoral 

college of the 2020 presidential election which had taken place 

on Tuesday, November 3, 2020.” Trial Tr. 641:13–18, ECF 

No. 109. The Vice President was in the building and presiding 

over the joint session. Id. at 641:23–25. Robertson was part 

of the mob that forced members of Congress to flee from the 

Senate chamber at 2:12 p.m. and from the House chamber at 

2:30 p.m. See id. at 642:3–18. Even after the rioters had been 

cleared, the chaos and disruption caused by the mob prevented 

the Senate and the House from resuming their work until “8:06 

p.m. and 9:02 p.m., respectively.” Id. at 642:14–15. 

After January 6, Robertson celebrated his participation in 

the riot on social media. He posted one message stating, “We 

were stomping on the roof of their safe room chanting 

WHOS[E] HOUSE? OUR HOUSE,” S.A. 186; and another 

stating, “[I’ve] seen for the first time in my life . . . [a] 

government scared of its people. The pictures of them huddled 

in the floor crying is the most American thing I have ever 

seen.” Id. at 192–93. Commenting on a photo of himself with 

Fracker in the Crypt, Robertson proclaimed: “I am fucking 

PROUD of it. It shows 2 men willing to actually put skin in 

the game and stand up for their rights. . . . Enjoy your feel good 

protests and fame. I’ll simply accept a ‘Thank you’ for the very 

blanket of freedom that you live and sleep under.” Id. at 180–

81. He also said that “CNN and the Left are just mad because 

we actually attacked the government who is the problem . . . . 

The Right IN ONE DAY . . . took the fucking U.S. Capitol. 

Keep poking us.” Id. at 184–85. He described his actions as 
6 

“storm[ing]” the Capitol, id. at 193, and as being “part of the 

next American revolution,” id. at 187. 

Law-enforcement authorities informed Robertson and 

Fracker that warrants had been issued for their arrest, and gave 

them an opportunity to turn themselves in. Before they 

surrendered, Robertson took his and Fracker’s phones and hid 

them. When officers later searched Robertson’s home, they 

found a cell phone that had been activated the day after his 

arrest. They also discovered that Robertson had texted a friend 

that “[a]nything that may have been problematic is destroyed,” 

“[i]ncluding [his] old phone” that “[t]ook a lake swim” and 

“had a tragic boating accident.” S.A. 196, 198–200. 

B. 

Robertson was charged with “corruptly” obstructing 

Congress’s certification of the Electoral College vote, in 

violation of 18 U.S.C. § 1512(c)(2). He also was charged with 

five additional offenses, including three more felony counts: 

knowingly entering a restricted building when the Vice 

President was there, while carrying a deadly and dangerous 

weapon (the large wooden stick), in violation of 18 U.S.C. 

§ 1752(a)(1); knowingly impeding the orderly conduct of 

government business, while carrying a deadly and dangerous 

weapon (the large wooden stick), in violation of 18 U.S.C. 

§ 1752(a)(2); and altering, destroying, mutilating, or 

concealing cell phones with intent to impair their use in an 

ensuing investigation (here, the grand jury investigation of the 

January 6 riot and Robertson’s criminal prosecution), in 

violation of 18 U.S.C. § 1512(c)(1). See 18 U.S.C. 

§ 1752(b)(1)(A) (providing that a violation of § 1752(a) shall 

be a felony if “during and in relation to the offense, [a person] 

uses or carries a deadly or dangerous weapon or firearm”). The 

remaining charges were misdemeanors: interfering with law 
7 

enforcement officers during the commission of a civil disorder, 

in violation of 18 U.S.C. § 231(a)(3) and 18 U.S.C. § 2; and 

engaging in disorderly and disruptive conduct in a Capitol 

building with the intent to disturb the orderly conduct of 

Congress, in violation of 40 U.S.C. § 5104(e)(2)(D).

Robertson moved to dismiss the § 1512(c)(2) charge, 

which alleged that he “corruptly” obstructed, influenced, or 

impeded the vote certification. He argued that the term 

“corruptly” is ambiguous, and that the statute was 

unconstitutionally vague as applied to him because it did not 

give him fair notice that his conduct was unlawful. The district 

court denied the motion, explaining that “corruptly” means 

“acting ‘with consciousness of wrongdoing.’” United States v. 

Robertson (Robertson I), 588 F. Supp. 3d 114, 123 (D.D.C. 

2022) (citing Arthur Andersen LLP v. United States, 544 U.S. 

696, 705–06 (2005)). 

Robertson’s case proceeded to trial. At the close of the 

government’s case, and again at the close of all the evidence, 

Robertson moved for judgment of acquittal under Rule 29 of 

the Federal Rules of Criminal Procedure. He argued that the 

government had failed to prove that he had acted “corruptly.” 

The district court reserved ruling on his motions until after the 

jury’s verdict. 

Robertson revisited the definition of “corruptly” in his 

proposed jury instructions. He requested that the jury be 

instructed as follows: 

To act “corruptly,” the defendant must use 

unlawful means or have a wrongful or an 

unlawful purpose, or both. An act is done 

“corruptly” if the defendant acted knowingly 

and dishonestly, with the specific intent to 
8 

subvert or undermine the due administration of 

justice. The defendant must also act with 

“consciousness of wrongdoing.” 

“Consciousness of wrongdoing” means with an 

understanding or awareness that what the 

person is doing is wrong or unlawful. Not all 

attempts to obstruct or impede an official 

proceeding involve acting corruptly. For 

example, a witness in a court proceeding may 

refuse to testify by invoking his constitutional 

privilege against self-incrimination, thereby 

obstructing or impeding the proceeding, but he 

does not act corruptly. In contrast, an individual 

who obstructs or impedes a court proceeding by 

bribing a witness to refuse to testify in that 

proceeding, or by engaging in other 

independently unlawful conduct, does act 

corruptly. 

S.A. 35 (citation omitted). The government objected to the 

reference to “dishonestly” as duplicative and unnecessary. 

The district court declined to adopt the requirement of 

“dishonestly” but otherwise gave an instruction that largely 

tracked what Robertson had requested. The final instruction 

on “corruptly” provided: 

To act corruptly the defendant must use 

unlawful means, or act with an unlawful 

purpose, or both. The defendant must also act 

with consciousness of wrongdoing. 

Consciousness of wrongdoing means with an 

understanding or awareness that what the 

person is doing is wrong. Not all attempts to 

obstruct or impede an official proceeding 
9 

involve acting corruptly. For example, a 

witness in a court proceeding may refuse to 

testify by invoking his constitutional privilege 

against self-incrimination, thereby obstructing 

or impeding the proceeding. But he does not act 

corruptly. In contrast, an individual who 

obstructs or impedes a court proceeding by 

bribing a witness to refuse to testify in that 

proceeding or by engaging in other 

independently unlawful conduct does act 

corruptly. 

S.A. 203; see also ECF No. 86 (Final Jury Instructions). The 

jury found Robertson guilty on all counts. 

After the trial, Robertson renewed his motion for judgment 

of acquittal on the § 1512(c)(2) count. He again asserted that 

“corruptly” is unconstitutionally vague. He also argued for the 

first time that the government did not prove that he acted 

corruptly because it did not show that he “acted knowingly and 

dishonestly with the intent to obtain an unlawful advantage for 

himself or an associate.” Robertson’s App. (“App.”) 38. 

The district court denied the motion, reiterating that 

“corruptly” is not unconstitutionally vague and that the term 

means acting with consciousness of wrongdoing and with 

independently unlawful means or purpose. United States v. 

Robertson (Robertson II), 610 F. Supp. 3d 229, 233, 236 

(D.D.C. 2022). The court further determined that the evidence 

supported the jury’s finding that Robertson acted “corruptly.” 

Id. at 236. The district court relied on evidence that Robertson 

“engaged in other independently unlawful conduct, by entering 

and remaining in a restricted area without lawful authority and 

by engaging in disruptive and disorderly conduct in a restricted 

area,” and determined that such evidence demonstrated “using 
10 

unlawful means or acting with an unlawful purpose.” Id.

(cleaned up). 

Robertson faced a statutory maximum sentence of 20 

years’ imprisonment for his convictions under 18 U.S.C. 

§ 1512(c)(1) and (c)(2), while his other felony convictions each 

carried a statutory maximum of 10 years’ imprisonment, see 18 

U.S.C. § 1752(b)(1)(A). The district court sentenced 

Robertson to a total of 87 months’ imprisonment (seven years 

and three months), followed by 36 months of supervised 

release. That sentence was at the bottom of the calculated 

guidelines range of 87 to 108 months, which was based on a 

total offense level of 29 and a Category I criminal history. To 

determine the offense level, the district court first looked to the 

obstruction-of-justice sentencing guideline, U.S.S.G. § 2J1.2, 

which has a base offense level of 14. Over Robertson’s 

objections, the court then added 15 more levels to the offense: 

an eight-level increase for “causing or threatening to cause 

physical injury to a person, or property damage, in order to 

obstruct the administration of justice,” U.S.S.G. 

§ 2J1.2(b)(1)(B); a three-level increase because “the offense 

resulted in substantial interference with the administration of 

justice,” id. § 2J1.2(b)(2); a two-level adjustment for being an 

organizer of criminal activity, id. § 3B1.1(c); and another twolevel enhancement for obstruction of justice based on 

destroying his and Fracker’s cell phones, id. § 3C1.1. 

II. ANALYSIS

A. 

Robertson challenges his conviction under 18 U.S.C. 

§ 1512(c)(2), which prohibits “corruptly . . . obstruct[ing], 

influenc[ing], or imped[ing] any official proceeding, or 

attempt[ing] to do so.” The jury was instructed that, in order 
11 

to convict Robertson of violating § 1512(c)(2), it had to find 

beyond a reasonable doubt that he (1) “attempted [to] or did 

obstruct or impede an official proceeding”; (2) “acted with the 

intent to obstruct or impede the official proceeding”; (3) “acted 

knowingly with awareness that the natural and probable effect 

of his conduct would be to obstruct or impede the official 

proceeding”; and (4) “acted corruptly.” Trial Tr. 980:14-20, 

981:6-8, ECF No. 111. On appeal, Robertson takes issue with 

only the “corruptly” element. He does not challenge any of the 

other elements or dispute that they were met. 

Robertson contends that the evidence presented at his trial 

was insufficient to prove that he acted “corruptly.” The district 

court held that “corruptly” signifies acting with independently 

unlawful means, unlawful purpose, or both, and with 

consciousness of wrongdoing. Robertson II, 610 F. Supp. 3d 

at 233, 236. Although Robertson previously endorsed most of 

the district court’s definition, he now argues that a proper 

construction of “corruptly” holds a different meaning. He 

claims that the term describes only “an act dishonestly done 

‘with a hope or expectation of either financial gain or other 

benefit to oneself or a benefit to another person.’” Opening Br. 

21 (quoting United States v. Aguilar, 515 U.S. 593, 616–17 

(1995) (Scalia, J., concurring in part and dissenting in part)). 

Under that interpretation, he urges, the trial evidence was 

insufficient to prove that he “corruptly” obstructed an official 

proceeding. He contends that he did not act “dishonestly,” that 

he did not seek any personal benefit by participating in the 

January 6 riot, and that any benefit to former President Trump 

was “too remote” to be considered. Id. 

We conclude that “corruptly” must be construed according 

to its plain meaning; that the “corruptly” element in 

§ 1512(c)(2) delineates whether a defendant’s conduct is 

culpable; and that there are a range of ways to prove a 
12 

defendant’s “corrupt” intent or action. On review of the 

sufficiency of the evidence, we need only determine that the 

“corruptly” element was satisfied by the evidence presented in 

Robertson’s trial. See Musacchio v. United States, 577 U.S. 

237, 243 (2016). We hold that the jury could have found, 

consistent with the district court’s instructions, that Robertson 

acted “corruptly” based on evidence that he used felonious 

“unlawful means” to obstruct, impede, or influence the 

Electoral College vote certification. The evidence was 

therefore sufficient to support Robertson’s conviction of 

violating § 1512(c)(2). Robertson’s contention that his 

preferred definition of “corruptly” is the sole and exclusive 

meaning of that term finds no support in the text, structure, or 

context of the statute, and is inconsistent with relevant 

precedents. 

1. 

Robertson frames his claim as one of insufficient 

evidence.1

 The parties agree that our standard of review is de 

novo. Gov’t Br. 21; Def. Br. 12. The government further states 

that our review does not rest on how the jury was instructed 

and that we should assess Robertson’s claim based on how a 

properly instructed jury would assess the evidence. See Gov’t 

Br. 21 (citing United States v. Hillie, 39 F.4th 674, 679–80 

1

 It may be that the type of claim brought by Robertson, in which 

he essentially asserts that the jury instructions omitted a requirement 

under the statute, is not properly characterized as a challenge to the 

sufficiency of the evidence. See United States v. Reynoso, 38 F.4th 

1083, 1086–87 (D.C. Cir. 2022). But the government does not 

question the framing of Robertson’s claim. 
13 

(D.C. Cir. 2022); Reynoso, 38 F.4th at 1089).2

 We thus apply 

that standard even though Robertson’s claim on appeal is 

inconsistent with the jury instruction that he requested in the 

trial court. 

In reviewing the sufficiency of the evidence de novo, we 

consider the evidence “in the light most favorable to the 

government.” United States v. Shi, 991 F.3d 198, 205 (D.C. 

Cir. 2021). “As an appellate court, we owe tremendous 

deference to a jury verdict.” United States v. Long, 905 F.2d 

1572, 1576 (D.C. Cir. 1990). We must affirm where “any

rational trier of fact” could have found guilt beyond a 

reasonable doubt. Id. (emphasis in original) (quoting Jackson 

v. Virginia, 443 U.S. 307, 319 (1979)). Our task here is to 

make only a “limited inquiry” — we must examine the record 

in this case just to determine the sufficiency of the evidence to 

support Robertson’s conviction. Musacchio, 577 U.S. at 243 

(“On sufficiency review, a reviewing court makes a limited 

inquiry tailored to ensure that a defendant receives the 

minimum that due process requires . . . .”). We start by 

determining the meaning of “corruptly” and then assess 

whether the evidence presented at Robertson’s trial was 

sufficient to prove that element. 

2. 

In defining “corruptly,” we do not write on a clean slate. 

Both the Supreme Court and this court have examined the 

meaning of “corruptly” in statutes that address obstructive 

2

 Although Hillie is arguably distinguishable from the case at bar 

because the instructional error in that case was preserved with a 

specific objection, Hillie, 39 F.4th at 679–80, the government does 

not make that distinction and does not request a different standard of 

review from that applied in Hillie. 
14 

behavior. See Arthur Andersen, 544 U.S. at 704–07 (analyzing 

18 U.S.C. § 1512(b)(2)(A) and (B), which prohibits 

“knowingly . . . corruptly persuad[ing] another” to withhold, 

alter, or conceal evidence for use in an official proceeding); 

United States v. North, 910 F.2d 843, 881 (D.C. Cir. 1990), 

opinion withdrawn and superseded on other grounds on reh’g, 

920 F.2d 940 (D.C. Cir. 1990) (analyzing 18 U.S.C. § 1505, 

which prohibits “corruptly . . . influenc[ing], obstruct[ing], or 

imped[ing] or endeavor[ing] to influence, obstruct, or impede” 

a congressional inquiry). As in those cases, we must begin with 

the statutory text. Because Congress has not defined 

“corruptly” in § 1512(c)(2), we must look to the word’s 

ordinary meaning. See Mohamad v. Palestinian Auth., 566 

U.S. 449, 454 (2012); North, 910 F.2d at 881; Arthur Andersen,

544 U.S. at 705. 

The Supreme Court noted in Arthur Andersen that the 

“natural meaning” of “corruptly” is “clear”: The word is 

“normally associated with wrongful, immoral, depraved, or 

evil.” Arthur Andersen, 544 U.S. at 705. Similarly, we stated 

in North that “‘corruptly’ is the adverbial form of the adjective 

‘corrupt,’ which means ‘depraved, evil: perverted into a state 

of moral weakness or wickedness.’” North, 910 F.2d at 881 

(quoting Corrupt, Webster’s Third New International 

Dictionary 512 (1976)). Those cases provide guidance on how 

to apply the ordinary meaning of “corruptly” in statutory 

interpretation. Arthur Andersen, 544 U.S. at 705 (the “natural 

meaning” of “corruptly” “provides a clear answer” for how it 

should be applied in the statute); North, 910 F.2d at 882, 884 

(“corruptly” is to be understood according to its “common 

meaning[]”). 

 

In Arthur Andersen, the Supreme Court reviewed the jury 

instructions for an obstruction charge arising from conduct that 

could have been either an ordinary business practice or 
15 

criminal obstruction: document shredding. 544 U.S. at 703–

08. In that case, the Court reversed the conviction of 

accounting firm Arthur Andersen LLP under 18 U.S.C. 

§ 1512(b) for instructing its employees to destroy documents 

of its client, the Enron Corporation, in advance of a 

government investigation. Id. at 698–702. The Court 

recognized that instructing employees to shred documents 

pursuant to a corporate document-retention policy was not 

necessarily criminal. Id. at 704. To determine whether Arthur 

Andersen’s behavior was culpable, the Court looked to the 

ordinary meaning of “corruptly”: “wrongful, immoral, 

depraved, or evil.” Id. at 705. Then, because § 1512(b) 

penalizes “knowingly . . . corruptly persuad[ing],” the Court 

paired the ordinary meaning of “knowingly” with the ordinary 

meaning of “corruptly” to hold that the statute required 

“consciousness of wrongdoing.” Id. at 705–06. Importantly, 

the Court noted that the “knowingly corruptly” element 

ensured that “only those with the level of ‘culpability . . . we 

usually require in order to impose criminal liability’” could be 

convicted. Id. at 706 (quoting Aguilar, 515 U.S. at 602). 

Like the Supreme Court, we have relied on the ordinary 

meaning of “corruptly.” In North, we reviewed a conviction 

under 18 U.S.C. § 1505 for aiding and abetting an endeavor to 

obstruct the congressional investigation of the Iran/Contra 

affair. 910 F.2d at 851–52. The defendant argued that his 

obstructive actions were authorized by his superiors, and that 

he therefore did not act “corruptly.” Id. at 878. Interpreting 

“corruptly” as used in § 1505, we recognized that ordinary 

meanings of the word include “depraved, evil: perverted into a 

state of moral weakness or wickedness.” Id. at 881. We held 

that the defendant was “entitled only . . . to a jury that applied 

‘corruptly’ according to its usual definitions” or “common 

meaning[].” Id. at 882, 884. We recognized, however, that 

proof of “corrupt” intent or action may vary depending on 
16 

circumstances. We noted that several courts of appeal 

reviewing convictions under § 1503 — which prohibits corrupt 

obstruction of the “due administration of justice” — have said 

that “the word ‘corruptly’ means nothing more than an intent 

to obstruct the proceeding,” because there are “very few noncorrupt ways to or reasons for intentionally obstructing a 

judicial proceeding.” Id. at 882. In other words, knowingly 

obstructing a judicial proceeding — such as by destroying 

evidence or threatening jurors — may be viewed as inherently 

corrupt. Id.; see also United States v. Fischer, 64 F.4th 329, 

355 (D.C. Cir. 2023) (Walker, J., concurring in part and 

concurring in the judgment); id. at 373 (Katsas, J., dissenting). 

By contrast, “to assert that all endeavors to influence, obstruct 

or impede the proceedings of congressional committees are, as 

a matter of law, corrupt [] would undoubtedly criminalize some 

innocent behavior.” North, 910 F.2d at 882. That is because 

“congressional committees are part and parcel of a political 

branch of government” that is engaged in making legislative 

and policy choices. Id. It is thus commonplace for people — 

such as lobbyists, protesters, and constituents — to lawfully 

“attempt, in innumerable ways, to obstruct or impede 

congressional committees.” Id.3

 

3

 Our dissenting colleague errs in asserting that we “expressly 

rejected” defining “corruptly” according to its ordinary meaning and 

dictionary definition in United States v. Poindexter, 951 F.2d 369 

(D.C. Cir. 1991). Dissenting Op. 28. We held in that case that the 

term “corruptly” as used in 18 U.S.C. § 1505 was vague as applied 

to Poindexter’s alleged conduct — lying to Congress. Poindexter, 

951 F.2d at 379 (“As used in § 1505, . . . we find that the term 

‘corruptly’ is too vague to provide constitutionally adequate notice 

that it prohibits lying to the Congress.”). But we expressly declined 

to conclude that “the ambiguity of the term ‘corruptly’ in § 1505 

renders that term unconstitutionally vague as applied to all conduct.” 

Id. at 385. Because Poindexter’s holding focused on whether § 1505 
17 

Arthur Andersen and North show that the type of 

proceeding and the nature of a defendant’s conduct matter. In 

contexts where obstructive actions are not inherently corrupt, 

the requirement to act “corruptly” separates innocent from 

illegal behavior. See Arthur Andersen, 544 U.S. at 706. The 

“corruptly” element protects non-culpable conduct — such as 

a corporation following a document retention policy for routine 

reasons, id. at 704, or lobbyists and protestors exercising their 

rights to influence a congressional committee hearing, North, 

910 F.2d at 882 — from being swept up by the statute’s broad 

prohibition on “obstructing, influencing or impeding an official 

proceeding.” Those cases confirm, moreover, that the 

requirement that a defendant act “corruptly” is met by 

establishing that the defendant acted with a corrupt purpose or 

via independently corrupt means. Id.; see id. at 942–43 

(Silberman, J., concurring in part and dissenting in part) (“[T]o 

say that someone corruptly endeavors to obstruct an inquiry 

might mean (1) that he does so with a corrupt purpose, or 

(2) that he does so by independently corrupt means, or (3) 

both.”). 

North suggests that where an individual “chooses the 

illegal or dubious course” to obstruct a congressional 

proceeding when a lawful means was available, no further 

showing of “corrupt motive” is required beyond his intent to 

commit the illegal, obstructive act. North, 910 F.2d at 883–84 

(rejecting defendant’s argument that he did not act “corruptly” 

if his supervisors authorized his conduct where evidence 

showed that he employed unlawful means to do their bidding); 

was unconstitutionally vague as applied to the specific conduct at 

issue in that case, it is not helpful in interpreting whether Robertson’s 

very different conduct in obstructing the Electoral College vote 

certification was sufficient to establish “corrupt” intent or action 

under § 1512(c)(2). 
18 

see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part 

and dissenting in part) (citing with approval a jury instruction 

for 18 U.S.C. § 1503 stating that “[a]n act is done corruptly if 

it’s done voluntarily and intentionally to bring about either an 

unlawful result or a lawful result by some unlawful method” 

(emphasis added)). In concluding that reliance on corrupt 

means is appropriate, Judge Silberman reasoned in his separate 

opinion in North that the “adverbial words or phrases 

‘corruptly,’ ‘by threats or force,’ and ‘by any threatening letter 

or communication’ [in § 1505] are equated, suggesting that 

Congress meant ‘corruptly’ to refer to the means by which the 

defendant endeavored to influence or impede a congressional 

inquiry.” 910 F.2d at 943 (Silberman, J., concurring in part and 

dissenting in part). Thus, a defendant who seeks to influence a 

congressional vote by “brib[ing] the chairman of a 

congressional committee can be said to have acted ‘corruptly’ 

no matter how laudable his underlying motive.” Id. Where a 

defendant uses “independently criminal” means, the jury 

“would not necessarily need to probe the morality or propriety 

of the defendant’s purpose.” Id. 

Where neither the obstruction itself nor the defendant’s 

means of obstruction are “inherently malign,” however, 

consideration of a defendant’s actions alone does not suffice. 

Arthur Andersen, 544 U.S. at 704. In that circumstance, a jury 

must find that the defendant acted with a “corrupt” purpose — 

in other words, a purpose that was “depraved, evil, or 

wrongful.” See North, 910 F.2d at 942–43 (Silberman, J., 

concurring in part and dissenting in part) (“Whenever the 

means used are not independently criminal, the jury cannot 

avoid considering the defendant’s purpose if it is to 

meaningfully determine whether the endeavor was corrupt or 

evil or depraved.”). As the Supreme Court explained in Arthur 

Andersen, a manager’s instruction to employees to shred 

documents in compliance with an established document 
19 

retention policy “under ordinary circumstances” is not corrupt, 

544 U.S. at 704; but a manager who knows that the shredded 

documents are relevant to a pending judicial proceeding may 

act “corruptly” in giving the same instruction. Id. at 708. 

Similarly, a jury considering the culpability of a lawyer who 

“advise[d] his client not to testify before a congressional 

committee conducting an inquiry” must consider the lawyer’s 

purpose in giving that advice to “meaningfully determine 

whether the endeavor was corrupt or evil or depraved.” See 

North, 910 F.2d at 943 (Silberman, J., concurring in part and 

dissenting in part). “The obstruction would not be corrupt if 

his purpose were solely to protect his client from possible legal 

difficulties.” Id. “But it might well be corrupt if the lawyer’s 

purpose were to prevent the client from divulging information 

that would implicate the lawyer.” Id. Thus, under 

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. 

North and Arthur Andersen confirm that there are multiple 

ways to prove that a defendant acted “corruptly.” Those cases 

provide examples of how corrupt intent or action may be 

established and demonstrate that “corruptly” need not be 

proved in the same way in every case. See North, 910 F.2d at 

883 (declining to adopt a rule that a defendant must have a 

“corrupt motive” to act “corruptly” because, “[j]ust as . . . there 

are myriad ways of ‘impeding’ or ‘obstructing’ congressional 

investigations that are not in themselves corrupt; so are there 

equally corrupt ways of impeding or obstructing Congress that 

do not proceed from corrupt motives”). Thus, “choos[ing] the 

illegal or dubious course” to obstruct a congressional 

proceeding can suffice to establish that a defendant acted 

corruptly. Id. at 887. Alternatively, a defendant’s purpose may 

prove to be “corrupt” where, as in the hypothetical of the 

lawyer who convinces his client not to testify against him, the 
20 

defendant “attempt[s] to secure some advantage for himself . . . 

that was . . . not in accordance with [his] legal rights.” Id. at 

944 (Silberman, J., concurring in part and dissenting in part). 

Or one might establish a defendant’s corrupt intent by proving 

that he acted “dishonestly” in “persuad[ing] another to 

withhold information from the Government,” or that he 

committed obstructive acts with “consciousness of 

wrongdoing.” Arthur Andersen, 544 U.S. at 704, 706–07. As 

Congress has recognized in a related context, “the variety of 

corrupt methods by which the proper administration of justice 

may be impeded or thwarted . . . [is] limited only by the 

imagination of the criminally inclined.” Poindexter, 951 F.2d 

at 382 (quoting S. Rep. No. 97-532, at 18 (1982)); see also S. 

Rep. No. 97-532, at 18 (1982) (noting that the “obstruction of 

justice statute,” i.e., what became 18 U.S.C. § 1505, “is an 

outgrowth of Congressional recognition of [a] variety of 

corrupt methods” (quoting Catrino v. United States, 176 F.2d 

884, 887 (9th Cir. 1949))). Congress and the courts have, 

accordingly, both recognized that “corruptly” in obstruction 

statutes can be proved in a variety of ways. 

3. 

For present purposes, we need only identify one way in 

which the evidence at trial could have supported a finding that 

Robertson acted “corruptly” when he obstructed, impeded, or 

influenced the Electoral College vote certification. That is 

because his claim on appeal challenges only the sufficiency of 

the evidence, and evaluating such a claim requires us to make 

only a “limited inquiry.” Musacchio, 577 U.S. at 243. In our 

view, the district court correctly instructed the jury, in relevant 

part, that one way to prove that a defendant acted “corruptly” 
21 

is to demonstrate that he “obstruct[ed] or impede[d] . . . by 

engaging in other independently unlawful conduct.” S.A. 203. 

That part of the district court’s instruction falls squarely 

within our holding in North that a defendant acts “corruptly” 

when he “chooses the illegal or dubious course when other 

legal action” is possible. North, 910 F.2d at 883; id. at 942–43 

(Silberman, J., concurring in part and dissenting in part). 

Moreover, courts that have construed “corruptly” in 18 U.S.C. 

§ 1512 and in similar obstruction statutes have often focused 

on equating “corruption” with “wrongfulness.” See, e.g.,

Arthur Andersen, 544 U.S. at 705–06 (defining corruption as 

“wrongdoing” under § 1512(b)(2)(A) and (B)).4 In this 

context, “wrongful” can mean “[a]n act taken in violation of a 

legal duty,” i.e., unlawful. Wrongful Conduct, Black’s Law 

Dictionary (7th ed. 1999); see also Unlawful, Black’s Law 

Dictionary (7th ed. 1999) (“Not authorized by law; illegal.”); 

Matthews, 505 F.3d at 706 (explaining that “wrongfully” 

means acting without “legal right,” such as the right to avoid 

4 See also North, 910 F.2d at 942 (Silberman, J., concurring in 

part and dissenting in part) (interpreting “corruptly” as “depraved, 

evil, or wrongful” under 18 U.S.C. § 1505); United States v. Farrell, 

921 F.3d 116, 141 (4th Cir. 2019) (“To act ‘corruptly’ [under 

§ 1512(c)(2)] means to act wrongfully.”); United States v. 

Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014) (defining “corruptly” 

under § 1512(c)(2) as acting “with a wrongful purpose”); United 

States v. Mann, 701 F.3d 274, 307 (8th Cir. 2012) (upholding 

convictions under § 1512(c)(1), (c)(2), and (k) where “the jury was 

instructed that ‘corruptly’ means to act with ‘consciousness of 

wrongdoing’”); United States v. Matthews, 505 F.3d 698, 705–07 

(7th Cir. 2007) (approving jury instruction defining “corruptly” 

under § 1512(c)(1) “as acting ‘with the purpose of wrongfully

impeding the due administration of justice’” (quoting Seventh 

Circuit Pattern Criminal Federal Jury Instructions for 18 U.S.C. 

§ 1503 (1999))). 
22 

self-incrimination); United States v. Davis, 183 F.3d 231, 250 

(3d Cir. 1999) (determining that a defendant could be 

convicted of corrupt persuasion in violation of § 1512(b) 

because he persuaded another to “violate his legal duty”), 

amended, 197 F.3d 662 (3d Cir. 1999); United States v. Ogle, 

613 F.2d 233, 238 (10th Cir. 1979) (explaining that “corruptly” 

as used in 18 U.S.C. § 1503 “really means unlawful”). There 

is thus ample precedent for treating acting unlawfully as acting 

“corruptly.” 

Accordingly, the district court correctly informed the jury 

that it could find that Robertson acted “corruptly” if the 

government proved that he “use[d] [independently] unlawful 

means” when he obstructed, impeded, or influenced the 

Electoral College vote certification. S.A. 203. Defining 

“corruptly” as “wrongfully” — and treating independently 

unlawful conduct as “wrongful” — provides an objective 

measure of culpable conduct that is straightforward to apply: 

A court or a jury can easily determine whether the evidence 

shows that a defendant took unlawful action to obstruct, 

impede, or influence the proceeding. See North, 910 F.2d at 

943 (Silberman, J., concurring in part and dissenting in part). 

Although words like “immoral, depraved, or evil” may also 

accurately convey what it means to be “corrupt,” see Arthur 

Andersen, 544 U.S. at 705; North, 910 F.2d at 881, “wrongful” 

captures the “core” meaning of “corrupt” intent or action and 

readily describes Robertson’s conduct. See Poindexter, 951 

F.2d at 385 (noting that defining “corruptly” as prompting the 

“violat[ion] [of] a legal duty . . . may be useful as a description 

of the ‘core’ behavior to which [18 U.S.C. § 1505] may 

constitutionally be applied”). 

In sum, the ordinary meaning of the word “corruptly” in 

18 U.S.C. § 1512(c)(2) encompasses acting through 
23 

independently unlawful means –– just as the district court 

instructed the jury.5

4. 

 The evidence presented at Robertson’s trial was 

undoubtedly sufficient to prove that he acted “corruptly.” We 

must consider that evidence “in the light most favorable to the 

government.” Shi, 991 F.3d at 205. And we undertake this 

review mindful of the “tremendous deference” owed to a jury 

verdict. Long, 905 F.2d at 1576. 

Before January 6, Robertson declared his intention to join 

a “counterinsurgency” and to participate in an “open armed 

rebellion.” S.A. 112, 190. To accomplish that end, Robertson 

broke the law in multiple ways. He used a stick to hit a police 

officer and to swipe at another. Wielding that stick as a show 

of force and intimidation, he joined the “out of hand” crowd 

surging into the Capitol building despite the blaring of alarms 

and warnings by police officers that the area was restricted. Id.

at 83, 85, 121, 140, 142. Once inside the Capitol, he beat his 

stick on the floor while other rioters chanted. The riot, which 

5

 We note that the district court’s instruction required the jury to 

find that Robertson acted with “consciousness of wrongdoing,” in 

addition to finding that he acted with an unlawful purpose or through 

independently unlawful means. S.A. 203. That “consciousness of 

wrongdoing” standard originated with Arthur Andersen’s 

interpretation of 18 U.S.C. § 1512(b), which makes it a crime for a 

defendant to “knowingly . . . corruptly persuade[]” another to 

obstruct an investigation. See Arthur Andersen, 544 U.S. at 704–06. 

Because § 1512(c)(2) does not contain a “knowingly corrupt” 

requirement, it is not apparent that “consciousness of wrongdoing” 

must be proved in this context. Nevertheless, the jury necessarily 

found that the evidence met that standard when it convicted 

Robertson; and showing “consciousness of wrongdoing” may itself 

suffice to prove corrupt intent. See id. at 706–07. 
24 

Robertson enthusiastically joined, forced both houses of 

Congress to suspend the Electoral College vote certification for 

six to seven hours. That evidence amply supported the jury’s 

finding that Robertson committed two felony offenses to 

obstruct the vote certification: i.e., remaining in a restricted 

building or grounds without lawful authority, and disorderly 

conduct at the Capitol, both with a deadly or dangerous 

weapon. See 18 U.S.C. § 1752(a)(1), (a)(2), (b)(1)(A). In 

other words, a jury could easily find that Robertson acted 

“corruptly” by using independently unlawful, felonious means 

with the intent to obstruct, influence, or impede the electoralvote certification.6

Applying the “corruptly” element of the statute in this case 

is “rather simple” because Robertson took action to obstruct 

Congress by force. Cf. North, 910 F.2d at 940 (Silberman, J., 

concurring in part and dissenting in part) (interpreting 18 

U.S.C. § 1505). Using force to obstruct, influence, or impede 

a congressional proceeding is plainly wrongful and therefore 

corrupt. Thus, this case does not present a close question of 

culpability. Robertson did not argue, for example, that he was 

a mere protestor exercising his First Amendment right to 

peacefully disagree with the outcome of the presidential 

election. The evidence established that Robertson was part of 

a mob that sought to overturn the result of the election by force, 

and that he used a dangerous weapon to impede the Electoral 

College vote certification. Where a defendant acts feloniously 

to obstruct a proceeding before the Congress, with no evidence 

or argument that he was merely engaged in peaceful 

6

 Robertson and our dissenting colleague argue that relying on 

independently unlawful conduct to prove the “corruptly” element is 

the equivalent of requiring proof of a predicate offense that is not 

listed in the statute. But that is not so. We hold only that proof of 

independently felonious means is a sufficient way to establish 

corrupt intent or conduct. 
25 

expression, his culpability –– i.e., the “corruptness” of his 

actions –– is not difficult to discern. 

We emphasize that Robertson’s independently wrongful 

conduct was felonious because his resort to felonious means 

unquestionably suffices to establish his culpability. Whether 

§ 1512(c)(2) applies to defendants who obstruct Congress by 

means of only “minor advocacy, lobbying, and protest 

offenses,” Fischer, 64 F.4th at 380 (Katsas, J., dissenting), or 

by “non-criminal tortious activity,” Opening Br. 15, is beyond 

the scope of our “limited” review and should be decided in a 

case that requires resolution of that question. See Musacchio, 

577 U.S. at 243. Here, we have no trouble rejecting 

Robertson’s specific claim that the evidence was insufficient to 

support a finding that he acted “corruptly” when he participated 

in the Capitol riot. A jury could find that he used independently 

felonious means to obstruct a congressional proceeding, which 

falls within the core meaning of “corruptly.” See Poindexter, 

951 F.2d at 385.7

5. 

 Robertson advocates a definition of “corruptly” that he 

claims is the sole and exclusive meaning of that term: He 

asserts that the only way to satisfy the element of “corrupt” 

intent under 18 U.S.C. § 1512(c) is to establish “an act 

dishonestly done,” Opening Br. 21, “with a hope or expectation 

of either financial gain or other benefit to oneself or a benefit 

[to] another person,” id. (quoting Aguilar, 515 U.S. at 616–17 

7

 Robertson has not renewed on appeal his argument before the 

district court that “corruptly” is unconstitutionally vague because it 

has no definite meaning. He apparently recognizes the uphill battle 

a vagueness challenge would face in light of his use of wrongful — 

indeed, felonious — means with the intent to obstruct an official 

proceeding. 
26 

(Scalia, J., concurring in part and dissenting in part)). 

According to Robertson, a defendant must act in that particular 

way and with that particular purpose in order to behave 

“corruptly,” and such a limited definition is necessary to 

appropriately constrain § 1512(c)(2)’s otherwise overly 

expansive scope. Robertson’s attempt to limit “corruptly” to 

his preferred, single meaning is wholly unconvincing: It finds 

no support in the statute and is contrary to precedent. 

 The asserted exclusivity of Robertson’s definition of 

“corruptly” is at odds with the view of that term taken by the 

Supreme Court, this court, and Congress. See supra Section 

II.A.2. Moreover, the two requirements espoused by 

Robertson are not mandated by the ordinary meaning of 

“corruptly” or any other relevant text in the statute. The word 

“dishonestly” is not included in 18 U.S.C. § 1512(c)(2), or in 

the dictionary definition of “corruptly.” See Arthur Andersen, 

544 U.S. at 705–06; Corruptly, Black’s Law Dictionary (7th 

ed. 1999). Likewise, the “hope or expectation of a benefit” is 

absent from the statute’s text and not required by its plain 

meaning. See 18 U.S.C. § 1512(c). Robertson’s proposed 

definition cannot be the exclusive way to construe “corruptly,” 

as he insists, when his definition does not even reflect the 

ordinary meaning of the word. Indeed, Robertson’s reading of 

“corruptly” conflicts with our decision in North. We held that 

even if North could show that he lacked a corrupt motive 

(because he was just following orders), a jury could find that 

he acted “corruptly” because he chose illegal means over 

available lawful ones to carry out the instructions of his 

superiors. See 901 F.2d at 883–84. In other words, where 

criminal means are employed, no proof of corrupt purpose is 

necessary. That holding precludes Robertson’s position that a 

particular purpose –– seeking a benefit for oneself or another 

— is invariably required to prove “corruptly.” 
27 

 The broader statutory context also undermines 

Robertson’s position. As we have discussed, “corruptly” 

encompasses multiple ways of acting with corrupt purpose or 

corrupt means. See supra Section II.A.2. Robertson seems to 

acknowledge as much in his supplemental brief, and he 

requested a jury instruction stating that “[t]o act ‘corruptly,’ the 

defendant must use unlawful means or have a wrongful or an 

unlawful purpose, or both.” S.A. 35 (emphases added). Yet 

his current definition of “corruptly” focuses only on a 

particular type of corrupt means and purpose — acting 

dishonestly with the hope or expectation of gaining a benefit 

for oneself or another — while reading the statute to preclude 

other common ways of behaving “corruptly.” 

 Nor do precedents support Robertson’s limited and 

exclusive interpretation of “corruptly.” With respect to the 

asserted requirement of dishonesty, he relies on Arthur 

Andersen. In that case, the Supreme Court faulted the trial 

judge for removing from the proposed jury instructions the 

requirement that the defendant acted “dishonestly” –– but only 

because that deletion relieved the government of its obligation 

to prove any culpable state of mind and thereby “diluted the 

meaning of ‘corruptly’ so that it covered innocent conduct.” 

Arthur Andersen, 544 U.S. at 706–07. We do not read Arthur 

Andersen to require proof of “dishonesty” in every case in 

which “corruptly” is an element. 

As for the asserted requirement that the defendant have a 

“hope or expectation” of a “benefit,” Robertson and our 

dissenting colleague cite two sources: (1) Judge Walker’s 

concurring opinion in United States v. Fischer, which asserted 

that “corruptly” means acting “with an intent to procure an 

unlawful benefit either for [one]self or for some other person,” 

Fischer, 64 F.4th at 352, 357 (Walker, J., concurring in part 

and concurring in the judgment) (quoting Marinello v. United 
28 

States, 138 S. Ct. 1101, 1114 (2018) (Thomas, J., dissenting)); 

see also Dissenting Op. 11; and (2) Justice Scalia’s partial 

dissent in Aguilar, which approved of a jury instruction 

defining “corruptly” under 18 U.S.C. § 1503 as an act done 

“with a hope or expectation of either financial gain or other 

benefit to oneself or a benefit of another person.” Aguilar, 515 

U.S. at 616–17 (Scalia, J., concurring in part and dissenting in 

part); see Def.’s Suppl. Br. 9. 

Both Judge Walker and Justice Scalia characterized the 

expectation-of-benefit formulation of “corruptly” as 

“longstanding,” and Judge Walker reasoned in Fischer that 

Congress must have intended “corruptly” as used in § 1512(c) 

to incorporate that meaning because it is well-established. 

Fischer, 64 F.4th at 352–53, 356–57 (Walker, J., concurring in 

part and concurring in the judgment). But Judge Walker relied 

primarily on a dissent in Marinello to support his claim of 

“longstanding” authority, id. at 352; and Justice Scalia also was 

in the minority in Aguilar — his opinion was joined by only 

two other justices, Aguilar, 515 U.S. at 609 (Scalia, J., 

concurring in part and dissenting in part). No majority of the 

Supreme Court has adopted the “expectation-of-benefit” 

requirement when defining “corruptly” in an obstruction case. 

In actuality, the expectation-of-benefit requirement is not 

“longstanding” at all in the context of obstruction statutes: 

Instead, its use has been almost exclusively confined to bribery 

and tax law. See Fischer, 64 F.4th at 381 (Katsas, J., 

dissenting) (“The concurrence’s approach thus requires 

transplanting into section 1512(c)(2) an interpretation of 

corruptly that appears to have been used so far only in tax law.” 

(emphasis in original)); see also United States v. Lonich, 23 

F.4th 881, 902–03 (9th Cir. 2022) (noting similar interpretation 

in bribery statutes); United States v. Floyd, 740 F.3d 22, 31 (1st 

Cir. 2014) (“[T]here is a consensus among the courts of appeals 
29 

that ‘corruptly,’ as used in section 7212(a) [prohibiting 

obstruction of the administration of the tax code], means acting 

with an intent to procure an unlawful benefit either for the actor 

or for some other person.”). Thus, the purportedly 

“longstanding” definition of “corruptly” would come as a 

surprise to every sister circuit to previously consider the 

meaning of that term in § 1512(c)(2). See United States v. 

Bedoy, 827 F.3d 495, 510 (5th Cir. 2016); United States v. 

Delgado, 984 F.3d 435, 452 (5th Cir. 2021); Lonich, 23 F.4th 

at 906; United States v. Ahrensfield, 698 F.3d 1310, 1324–25 

(10th Cir. 2012); United States v. Gordon, 710 F.3d 1124, 

1148–49 (10th Cir. 2013); United States v. Mintmire, 507 F.3d 

1273, 1289 (11th Cir. 2007); United States v. Friske, 640 F.3d 

1288, 1291 (11th Cir. 2011); see also Matthews, 505 F.3d at 

705 (interpreting “corruptly” in § 1512(c)(1)). Even the Tenth 

Circuit, which recognized the benefit-focused definition in a 

case involving a different obstruction statute, Ogle, 613 F.2d at 

238, has approved definitions of “corruptly” without the 

benefit requirement in later cases See United States v. 

Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009) (interpreting 

§ 1503); see also Ahrensfield, 698 F.3d at 1325 (interpreting 

§ 1512(c)(2)); Gordon, 710 F.3d at 1148 (interpreting 

§ 1512(c)(2)). We see no basis to create a split with those 

circuits, particularly on sufficiency review when the culpability 

of Robertson’s conduct is obvious.8

 

8

 The dissent erroneously asserts that our interpretation is in 

“outright conflict” with some of the cited authorities from other 

jurisdictions. Dissenting Op. 19 n.10. The dissent notes that none 

of those authorities adopts an “independently unlawful means” 

requirement. Id. Nor do we impose such a requirement. Instead, we 

recognize that proof of independently unlawful means can suffice to 

establish “corrupt” intent or action. By the same token, in cases 

charging that conduct was corrupt because it was dishonest, proof of 
30 

The Fischer concurrence argued that its narrow view of 

“corruptly” must be exclusive to “ensure[] that [§ 1512(c)(2)] 

does not have a breathtaking scope.” Fischer, 64 F.4th at 352, 

360–61, 362 n.10 (Walker, J., concurring in part and 

concurring in the judgment); see also Opening Br. 15–16; 

Reply Br. 8–9. But, as discussed, the “corruptly” element 

works to separate culpable conduct from innocent behavior, 

even without the additional requirement advocated by the 

Fischer concurrence. See supra Section II.A.2. The element 

of “corrupt” intent or action, as we construe it, protects the right 

of peaceful advocacy and protest –– i.e., the legitimate efforts 

of lobbyists and protestors to influence policymaking or to 

express political views do not fit the ordinary meaning of 

“corruptly.” See North, 910 F.2d at 882. That is so even in the 

case of protestors who passionately, but lawfully, voice 

displeasure, suspicion, or outrage over election results. In any 

event, the potential breadth of a statute is not alone a reason to 

depart from its ordinary meaning. Even Justice Scalia’s partial 

dissent in Aguilar, on which Robertson and the Fischer 

concurrence both rely, opposed “importing extratextual 

requirements in order to limit the reach of a federal criminal 

statute.” Aguilar, 515 U.S at 612 (Scalia, J., concurring in part 

and dissenting in part) (emphasis in original). 

We note, too, that concerns about constraining lobbying 

and advocacy are not implicated in January 6 cases because the 

electoral-vote certification by Congress is not a policymaking 

exercise open to “political jousting,” see North, 910 F.2d at 

882. Instead, it is a constitutionally scripted transition of 

presidential power, with an outcome determined by the results 

of a presidential election. Fischer, 64 F.4th at 342-43; 3 U.S.C. 

dishonesty can also suffice. The cited authorities are consistent with 

our view that there are many ways to prove “corruptly.” See supra 

Section II.A.2. 
31 

§ 15 (2018), amended by 136 Stat. 4459, 5238 (2022). The 

purpose of the proceeding is to present and count the 

“certificates of the electoral votes” duly submitted by each 

state. 3 U.S.C. § 15 (2018), amended by 136 Stat. 4459, 5238 

(2022). After the votes are “ascertained and counted,” the Vice 

President, as President of the Senate, “announce[s] the state of 

the vote, which announcement shall be deemed a sufficient 

declaration of the persons, if any, elected President and Vice 

President of the United States.” Id. Although members of 

Congress may object to a state’s certificates, see id., Robertson 

does not argue that his conduct on January 6, 2021, was a 

peaceful effort to convince members of Congress to raise 

objections to the vote certification. 

The interpretations of “corruptly” posited by Robertson 

and the Fischer concurrence appear to confuse sufficiency with 

necessity: Their proposed definitions of “corruptly” may be 

sufficient to prove corrupt intent, but neither dishonesty nor 

seeking a benefit for oneself or another is necessary to 

demonstrate “wrongful, immoral, depraved, or evil” behavior 

within the meaning of § 1512(c). See supra Section II.A.2 

(explaining that corrupt intent may be proved in many ways). 

Acting “dishonestly” would be consistent with the ordinary 

meaning of acting “corruptly.” See United States v. 

Richardson, 676 F.3d 491, 507–08 (5th Cir. 2012). Likewise, 

a defendant’s obstructive conduct may often seek to secure an 

unlawful benefit for himself or another, such as preventing 

negative testimony at a trial. See United States v. Edlind, 887 

F.3d 166, 172–76 (4th Cir. 2018). But Robertson has not 

persuaded us that all the courts that have heretofore defined 

“corruptly” without the “benefit” element — i.e., in virtually 

all previous cases not involving bribery or tax offenses — were 

wrong. 
32 

For all the foregoing reasons, we decline to adopt the 

limited constructions of “corruptly” proffered by Robertson 

and the Fischer concurrence, which each insist that the broad 

concept of “corrupt” intent must be proved in only one way. 

To the extent that Robertson seeks reversal of his conviction 

under § 1512(c)(2), we also note that the Fischer concurrence 

does not appear to help him. Although the Fischer concurrence 

favored a definition of “corruptly” that required proof of the 

defendant’s intent to procure a benefit for himself or another, 

it applied that standard to support the prosecution of January 6 

defendants who, like Robertson, “used illegal means (like 

assaulting police officers) with the intent to procure a benefit 

(the presidency) for another person (Donald Trump).” Fischer, 

64 F.4th at 361 (Walker, J., concurring in part and concurring 

in the judgment). 

6. 

We respectfully disagree with our dissenting colleague, 

who asserts that the record evidence was insufficient to support 

Robertson’s conviction under § 1512(c)(2) and that Judge 

Walker’s concurrence in United States v. Fischer is binding on 

us. See 64 F.4 351 (Walker, J., concurring in part and 

concurring in the judgment). 

i. 

The dissent contends that the concurring opinion in 

Fischer is binding precedent that we must follow. See 

Dissenting Op. 1, 12–14. That contention is based on the 

erroneous belief that “[t]he definition of ‘corruptly’ endorsed 

by Judge Walker . . . was necessary to create a holding.” Id. at 

13. The only holding in Fischer was the majority’s ruling 

reversing the district court’s erroneous interpretation of a 

different part of the statute — the “otherwise obstructs” clause. 
33 

In Fischer, we reversed the district court’s decision to 

dismiss the § 1512(c)(2) charges in the defendants’ indictments 

and remanded the cases for further proceedings. 64 F.4th at 

350. The district court’s dismissal order was narrow: It rested 

solely on the conclusion that § 1512(c)(2) “requires that the 

defendant have taken some action with respect to a document, 

record, or other object.” United States v. Miller, 589 F. Supp. 

3d 60, 78 (D.D.C. 2022). We disagreed, holding that 

“otherwise . . . obstruct[ing], influenc[ing] or imped[ing]” an 

official proceeding under § 1512(c)(2) covers “all forms of 

corrupt obstruction of an official proceeding.” Fischer, 64 

F.4th at 336. We also determined that the certification of the 

Electoral College vote by Congress is an “official proceeding” 

under the statute. Id. at 342–43. We did not resolve the 

question at issue in this case: How to define and apply 

“corruptly” within the meaning of the statute. 

The district court in Fischer had expressly declined to 

address the meaning of “corruptly” in § 1512(c)(2). United 

States v. Miller, 605 F. Supp. 3d 63, 70 n.3 (D.D.C. 2022). 

Thus, the briefing in the Fischer appeal considered the role of 

“corruptly” only as context for interpreting the words 

“otherwise . . . obstructs, influences, or impedes,” which was 

the issue before us. In arguing for a broader interpretation of 

“otherwise obstructs,” the government asserted that the 

statute’s reach was constrained by the “corruptly” element, 

which requires proof that the defendant “intended to obstruct” 

an official proceeding, took actions “the natural and probable 

effect of which” was to obstruct, and did so “with a corrupt 

purpose or through independently corrupt means, or 

both.” U.S. Br. 50–51, Fischer, 64 F.4th 329 (22-3038) 

(cleaned up). The defendants responded that the term 

“corruptly” is unconstitutionally vague, Appellee Br. 32–36, 

Fischer, 64 F.4th 329 (22-3038), so would not cure “the 

uncertainty surrounding which acts are criminal,” id. at 
34 

36. Thus, the parties only tangentially addressed the meaning 

of “corruptly” in their briefs. 

Our holding in Fischer was that the district court 

erroneously dismissed the defendants’ § 1512(c)(2) counts 

based on its interpretation of “otherwise obstructs”; we did not 

decide whether the § 1512(c)(2) charge was otherwise properly 

pled, including as to the “corruptly” element. A holding of 

error as to a district court’s sole ground for dismissing an 

indictment does not affirmatively establish the indictment’s 

validity in all other respects. Cf. Dissenting Op. 13 n.8. 

Rather, our conclusion that the district court erred in its 

interpretation of “otherwise obstructs” left room for the 

defendants to raise other challenges to the statute on remand — 

including any claims regarding “corruptly.” Nothing in the 

Fischer opinion prevented the district court from entertaining 

such a claim on remand. 

 

Robertson and the government agree that the three 

separate opinions in Fischer produced no holding on the 

meaning of “corruptly.” Def.’s Suppl. Br. 1; Gov’t’s Suppl. 

Br. 1. The lead Fischer opinion saw no need to settle on a 

statutory interpretation of that term, 64 F.4th at 339–42, nor did 

Judge Katsas in dissent, id. at 382. Only Judge Walker, 

concurring in part and concurring in the judgment, presented 

his view of how “corruptly” in § 1512(c)(2) should be defined. 

His discussion on that point was dicta. 

Judge Walker agreed with Judge Pan that the district court 

erred in dismissing the indictments for failure to sufficiently 

allege that the defendants “otherwise . . . obstruct[ed], 

influence[d] or impede[d]” an official proceeding. He noted 

that, “[i]f proven at trial, the Defendants’ efforts to stop 

Congress from certifying the results of the 2020 presidential 

election are the kind of ‘obstructive conduct’ proscribed by 
35 

(c)(2).” 64 F.4th at 351 (Walker, J., concurring in the lead 

opinion’s interpretation of “otherwise obstructs” in 

§ 1512(c)(2) and concurring in the judgment) (cleaned up). He 

went on to explain his view that the statutory requirement that 

obstruction be undertaken “corruptly” requires proof that the 

defendant acted “with an intent to procure an unlawful benefit 

either for himself or for some other person.” Id. at 352 

(quoting Marinello, 138 S. Ct. at 1114 (Thomas, J., 

dissenting)). 

Judge Walker suggested that his interpretation of 

“corruptly” might be binding on the court, emphasizing its 

importance to him in his decision to embrace the broader 

reading of “otherwise obstructs.” Fischer, 64 F.4th at 362 n.10 

(Walker, J., concurring in part and concurring in the 

judgment). Although Judge Walker was free to forecast in his 

concurrence how he would interpret “corruptly” in an appeal 

requiring that it be resolved, the role his interpretation played 

in his own thinking did not make it precedent that is binding on 

this court. See Doe v. Fed. Democratic Republic of Ethiopia, 

851 F.3d 7, 10 (D.C. Cir. 2017) (“[B]inding circuit law comes 

only from the holdings of a prior panel, not from its dicta.” 

(cleaned up)). 

In any event, even if we assume, arguendo, that Fischer

included a holding about “corruptly,” any such holding was 

limited to a conclusion that the “corruptly” element was 

adequately alleged. Two members of the panel agreed on that 

outcome but relied on different reasoning — a way to resolve 

an appeal that is not unusual. See, e.g., W. Org. of Res. 

Councils v. Zinke, 892 F.3d 1234, 1246 (D.C. Cir. 2018) 

(Henderson, J., concurring) (“I do not join the portion of the 

opinion that identifies alternative avenues by which the 

plaintiffs might press their claim. . . . I would leave it up to a 
36 

future court to decide whether the alternatives discussed are 

sufficient to pursue the claim we reject in this appeal.”). 

The lead opinion in Fischer determined that the facts 

alleged in the indictments were sufficient to support any 

definition of “corruptly,” but did not adopt a definition, i.e., the 

opinion did not state what was necessary to prove corrupt 

intent. See 64 F.4th at 339–41 (opinion of Pan, J.); id. at 340 

(“[T]he sufficiency of the indictments in this case does not turn 

on the precise definition of ‘corruptly.’”). By contrast, Judge 

Walker opined in his concurrence that it was necessary to 

prove that a defendant intended to procure an unlawful benefit 

to establish corrupt intent, and that the allegations in the 

indictments satisfied that requirement. Id. at 361–62 & 362 

n.10 (Walker, J., concurring in part and concurring in the 

judgment). Thus, in reversing the judgment of the trial court 

dismissing the indictments, both Judge Pan and Judge Walker 

agreed that the “corruptly” element — as well as the “otherwise 

obstructs” element — was adequately alleged. Contrary to the 

dissent’s analysis, it was not necessary for Judge Pan and Judge 

Walker to adopt the same reasoning about the definition of 

“corruptly” to conclude that the element was met. Although 

the dissent emphasizes that “Judge Walker conditioned his vote 

on one definition — the one he called the ‘long-standing 

meaning’ of ‘corruptly,’” Dissenting Op. 12, Judge Walker’s 

statement did not, and could not, change Judge Pan’s view of 

the “corruptly” requirement, which was plainly different from 

his. 

 

Our dissenting colleague asserts that Judge Walker’s 

reasoning was the narrowest holding of Fischer and therefore 

is binding. Dissenting Op. 14 n.9. That characterization is 

inapt because, as we have explained, there was no “holding” 

about “corruptly” in Fischer. Moreover, the dissent’s logic is 

drawn from the Supreme Court’s Marks rule, which this court 
37 

has never adopted for the purpose of determining its own 

holdings. See Fischer, 64 F.4th at 341 n.5 (opinion of Pan, J.) 

(discussing Marks v. United States, 430 U.S. 188 (1977)). 

In any event, even under Marks, the narrowest holding 

must be the lowest common denominator, or a “subset,” of any 

broader opinion’s reasoning: In that circumstance, the 

narrower “subset” commands the majority needed to bind the 

court and therefore can be characterized as a “holding.” Cf. 

King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) 

(Silberman, J., concurring) (“Marks is workable — one 

opinion can be meaningfully regarded as ‘narrower’ than 

another — only when one opinion is a logical subset of other, 

broader opinions.”). In Fischer, where the lead opinion 

reasoned that proof of options A, B, or C would be sufficient 

to establish “corrupt” intent, Fischer, 64 F.4th at 339–41 

(opinion of Pan, J.), and the concurrence stated that option C is 

necessary to prove “corruptly,” id. at 352, 361–362 (Walker, 

J., concurring in part and concurring in the judgment), the 

concurrence is not a subset of the lead opinion — the two 

opinions rely on rationales that do not overlap.9

 Judge Pan’s 

acceptance of C as sufficient but not necessary — i.e., that C 

need not be proved in every case — conflicts with Judge 

Walker’s insistence that C is invariably required. Thus, neither 

9

 By contrast, if the lead opinion had said that options A, B, and

C are necessary to prove “corruptly,” and the concurrence had said 

only that C is necessary, then the concurrence would be a logical 

subset of the lead opinion. Under such circumstances, a defendant’s 

claim that a jury instruction was inadequate for failing to require 

proof of C would support reversal because two judges agreed that C 

was necessary. By contrast, if a defendant objected to instructions 

failing to require A, there would be no binding law because only the 

lead opinion reached such a conclusion. 
38 

opinion is narrower than the other.10 The Fischer concurrence 

is not a “holding” but instead reflects the opinion of a single 

judge. 

ii. 

The dissent claims that we are bound by Judge Walker’s 

view that “corruptly” in § 1512(c)(2) requires the defendant to 

act with the intent of obtaining an unlawful benefit for himself 

or another. See Dissenting Op. 8–15. But in applying that 

standard, Judge Walker reasoned that the indictments at issue 

in Fischer should be upheld, stating that “it might be enough 

for the Government to prove that a defendant used illegal 

means (like assaulting police officers) with the intent to 

procure a benefit (the presidency) for another person (Donald 

Trump).” Fischer, 64 F.4th at 361 (Walker, J., concurring in 

part and concurring in the judgment). The dissent does not 

explain why that reasoning, in an opinion that the dissent 

believes is binding, does not dictate affirmance in this case. 

Instead, the dissent contends that we must overturn the 

jury’s verdict in this case because “[t]here is no evidence in the 

record suggesting Robertson obstructed the election 

certification proceeding in order to obtain an unlawful benefit 

for himself or someone else.” Dissenting Op. 33. That is 

incorrect. Robertson believed that the election was “rigged”; 

announced that he refused to be “disenfranchised”; and 

declared that he was “prepared to start” an “open armed 

10 The dissent posits that “[a]nother way of phrasing Judge 

Walker’s conclusion that C is necessary is to say that only C is 

sufficient,” and that phrasing “yields a logical subset.” Dissenting 

Op. 14 n.9. The dissent’s formulation makes little sense because 

“necessary” and “sufficient” mean different things. There is no way 

to make Judge Walker’s opinion a subset of Judge Pan’s opinion 

because Judge Pan did not agree with him that C is necessary. 
39 

rebellion.” S.A. 110, 190. That evidence was plainly sufficient 

to support a finding that Robertson intended to secure the 

unlawful benefit of installing the loser of the presidential 

election, Donald J. Trump, as its winner. See Fischer, 64 F.4th 

at 361 (Walker, J., concurring in part and concurring in the 

judgment); see also id. at 356 n.5 (reasoning that “the 

beneficiary of an unlawful benefit need not be the defendant or 

his friends” and § 1512(c)(2) could apply to a defendant 

“trying to secure the presidency for Donald Trump”). 

To shore up its assessment of the evidence, the dissent 

states in a footnote that “[t]he ‘unlawful benefit’ the defendant 

seeks must be financial, professional or exculpatory.” 

Dissenting Op. 34 n.18. But Judge Walker’s concurring 

decision in Fischer, which the dissent believes is binding, see 

id. at 1, did not endorse such a limited definition. See Fischer,

64 F.4th at 356 n.5 (Walker, J., concurring in part and 

concurring in the judgment). And Judge Walker himself 

emphasized that, even were the requisite “benefit” so limited, 

the defendants’ conduct “may have been an attempt to help 

Donald Trump unlawfully secure a professional advantage — 

the presidency,” so would likely suffice. Id. The dissent’s 

position, in any event, ignores the fact that it can be “corrupt” 

to obstruct an official proceeding for the purpose of gaining a 

personal, social, or political favor. See United States v. 

Brenson, 104 F.3d 1267, 1273–81 (11th Cir. 1997) (affirming 

defendant’s conviction under 18 U.S.C. § 1503 where he 

disclosed details of a grand jury investigation to its target in 

order to get a date with the target’s daughter). 

iii. 

In explaining their adoption of the expectation-of-benefit 

formulation of “corruptly,” the dissent and the Fischer 

concurrence rely on bribery and tax law as asserted foundations 
40 

of the expectation-of-benefit requirement. See 64 F.4th at 352–

56 (Walker, J., concurring in part and concurring in the 

judgment); Dissenting Op. 15–19. But both of those types of 

cases are poor comparators. For a bribe to be a bribe and not 

merely a payment, there must be some sort of quid pro quo, 

i.e., an agreement by a public official to perform an official act 

to benefit the payee. See McDonnell v. United States, 579 U.S. 

550, 562–63 (2016); United States v. Gatling, 96 F.3d 1511, 

1522 (D.C. Cir. 1996); Lonich, 23 F.4th at 902–07. Likewise, 

it is difficult to “imagine a scenario where a taxpayer would 

‘willfully’ violate the Tax Code (the mens rea requirement of 

various tax crimes, including misdemeanors) without intending 

someone to obtain an unlawful advantage.” Marinello, 138 S. 

Ct. at 1108. Thus, in bribery and tax cases, the expectation of 

a benefit is inherent in the crime in a way that it is not in the 

obstruction context. Unlike in tax and bribery cases, there are 

many corrupt ways or reasons for a defendant to obstruct an 

official proceeding that do not involve seeking to obtain an 

unlawful advantage for himself or another. Moreover, for a 

person who attempts to influence a congressional proceeding, 

the intent to procure a benefit — e.g., a change of policy — 

may be entirely lawful. Thus, requiring proof of a benefit 

would not protect the innocent lobbying or advocacy that 

concerns the dissent. We therefore see no apparent reason to 

import the expectation-of-benefit requirement into the 

obstruction context, and we discern no justification for making 

such a requirement the exclusive way to prove corrupt intent. 

We also reject the assertion by the dissent and the Fischer 

concurrence that the common-law history of bribery 

determines the meaning of “corruptly” in this obstruction 

statute. Our court has previously traced the historical 

provenance of a related obstruction statute, 18 U.S.C. § 1505, 

to an 1831 contempt statute that punished attempts to 

“corruptly, or by threats or force, endeavour to influence, 
41 

intimidate, or impede any juror, witness, or officer” or to 

“corruptly, or by threats or force, obstruct, or impede, or 

endeavour to obstruct or impede, the due administration of 

justice.” Act of Mar. 2, 1831, ch. 98, § 2, 4 Stat. 487, 488; see

Poindexter, 951 F.2d at 380 (citing Walter Nelles & Carol 

Weiss King, Contempt by Publication in the United States, 28 

COLUM. L. REV. 401, 430–31 (1928)); see also Felix 

Frankfurter, Power of Congress over Procedure in Criminal 

Contempts in ‘Inferior’ Federal Courts — A Study in 

Separation of Powers, 37 HARV. L. REV. 1010, 1026–27 n.75 

(1924) (recounting legislative history of Act of Mar. 2, 1831). 

That predecessor contempt statute does not include any 

mention of a required intent to procure a benefit. Moreover, 

courts interpreting a later version of that provision, which 

incorporated similar statutory language, have held that the 

word “corruptly” is “capable of different meanings in different 

connections,” and that requiring that obstruction be 

accompanied by a promise of payment would “quite 

unreasonably restrict the obvious purpose of the legislation.” 

See Bosselman v. United States, 239 F. 82, 86 (2d Cir. 1917) 

(“As used in this particular [contempt] statute, we think any 

endeavor to impede and obstruct the due administration of 

justice in the inquiries specified is corrupt.”); see also United 

States v. Polakoff, 121 F.2d 333, 334 (2d Cir. 1941) (“Exact 

precedents appear to be lacking, but the decisions under the 

[contempt] statute are illuminating in their unwillingness to 

limit the court’s protection from improper obstructions.”); id. 

at 335 (discussing Bosselman). Neither the dissent nor the 

Fischer concurrence address contempt statutes in the history 

that they recount.

The dissent raises three additional objections to our 

holding that a defendant obstructs “corruptly” when he does so 

by independently felonious means. First, the dissent reiterates 
42 

concerns expressed by the Fischer dissent that relying on 

independently unlawful means to prove “corruptly” could 

inappropriately “supercharge a range of minor advocacy, 

lobbying, and protest offenses into 20-year felonies.” 

Dissenting Op. 30, 32 (quoting Fischer, 64 F.4th at 380 

(Katsas, J., dissenting)). But that is not so: Obstruction of 

Congress by corrupt means is a distinct harm from that 

associated with the unlawful means used to carry out the 

obstruction. In any event, prosecutions seeking to demonstrate 

that a defendant “corruptly” obstructed a proceeding by relying 

on proof that the defendant’s means were misdemeanors or 

otherwise unlawful are not before us and should be addressed 

when they arise. See supra Section II.A.4. 

Second, the dissent complains that our opinion responds to 

such concerns by “imposing a limitation plucked from thin 

air,” i.e., that we “suggest[] that the ‘unlawful-means’ 

requirement is satisfied only when a defendant acts through 

‘independently felonious means.’” Dissenting Op. 30 

(emphasis in original). The dissent is again mistaken. In 

holding that felonious means are sufficient to establish 

“corrupt” behavior, we do not suggest that they are always 

necessary to prove the “corruptly” element. 

Third, and finally, the dissent contends that our reading of 

“corruptly” “strip[s] the word of any independent meaning.” 

Dissenting Op. 24. That, too, is wrong. The requirement that 

a defendant act via corrupt means or corrupt purpose plays the 

crucial role of ensuring that § 1512(c)(2) does not penalize 

innocent efforts to obstruct an official proceeding, including by 

engaging in constitutionally protected expression. See supra 

Section II.A.2. 

For all the foregoing reasons, we respectfully disagree 

with our dissenting colleague. 
43 

B. 

 Robertson challenges his sentence, arguing that the district 

court erroneously applied an 11-point increase to his offense 

level based on the specific offense characteristics in U.S.S.G. 

§ 2J1.2(b)(1)(B) and (b)(2). Section 2J1.2 sets forth the base 

offense level and enhancements for obstruction-of-justice 

crimes. Subsection (b)(1)(B) instructs that an eight-level 

increase applies “[i]f the offense involved causing or 

threatening to cause physical injury to a person, or property 

damage, in order to obstruct the administration of justice,” id.

§ 2J1.2(b)(1)(B); and subsection (b)(2) provides that a threelevel increase is appropriate “[i]f the offense resulted in 

substantial interference with the administration of justice,” id. 

§ 2J1.2(b)(2). 

In Robertson’s view, his conduct does not fall within either 

subsection (b)(1)(B) or (b)(2) because Congress’s certification 

of the Electoral College vote does not implicate the 

“administration of justice.” Instead, he asserts, “administration 

of justice” refers only to judicial or quasi-judicial proceedings 

and related investigations, relying primarily on a district court 

decision issued after his sentencing. See Opening Br. 24–28 

(citing United States v. Seefried, 639 F. Supp. 3d 8, 11-19 

(D.D.C. 2022)). 

Although Robertson objected to the application of 

subsections (b)(1)(B) and (b)(2) in the district court, he never 

argued that Congress’s certification of the election was not an 

“administration of justice.”11 We therefore review Robertson’s 

11 Specifically, Robertson’s sentencing memorandum argued only 

that the offense characteristics did not apply because “at no time did 

[he] cause or threaten physical injury to a person or property,” and 

because he “did nothing that increased the resources” expended by 
44 

claims for plain error. See United States v. Hunter, 809 F.3d 

677, 681 (D.C. Cir. 2016); United States v. Gewin, 759 F.3d 

72, 78–79 (D.C. Cir. 2014). Under that standard, Robertson 

bears the burden of showing “(1) that there was an error, (2) 

that the error was clear or obvious, (3) that it affected [his] 

substantial rights, and (4) that it seriously affected the fairness, 

integrity, or public reputation of the judicial proceedings.” 

United States v. Gooch, 665 F.3d 1318, 1332 (D.C. Cir. 2012); 

accord Greer v. United States, 141 S. Ct. 2090, 2096–97 

(2021); United States v. Olano, 507 U.S. 725, 732–35 (1993). 

Robertson’s argument fails to clear the second hurdle: We 

need not even decide whether the district court erred to 

conclude that it is far from clear or obvious that it did so. First, 

the ordinary meaning of “administration of justice” does not 

necessarily exclude Congress’s certification of the Electoral 

College vote under 3 U.S.C. § 15. The term “justice” is defined 

as the “fair and proper administration of laws,” which may 

pertain to the administration of laws by a legislative body. 

Justice, Black’s Law Dictionary (7th ed. 1999); see also 

Contempt, Black’s Law Dictionary (7th ed. 1999) (explaining 

that contempt of a “legislature” impairs the “administration of 

justice”). Moreover, Robertson cites no binding authority 

limiting the administration of justice to judicial or quasijudicial proceedings. Thus, we cannot conclude that the district 

court clearly or obviously erred when it found that Robertson’s 

obstruction of the Electoral College vote also obstructed and 

interfered with the “administration of justice.” In short, 

Robertson fails to meet his burden to demonstrate that the 

the government. S.A. 54–55. Likewise, at the sentencing hearing, 

his counsel repeated that “the enhancement does not apply when the 

government fails to identify any expenses in addition to the costs of 

bringing the defendant to trial” and that “if we take the definition of 

what ‘substantial interference’ means, that doesn’t apply here at all.” 

Id. at 212, 214. 
45 

district court plainly erred when it determined that the specific 

offense characteristics in U.S.S.G. § 2J1.2 (b)(1)(B) and (b)(2) 

apply to his conduct. See Greer, 141 S. Ct. at 2097. 

* * * 

 For the reasons discussed, we affirm the judgment of the 

district court. The evidence at trial was sufficient to support a 

finding that Robertson acted “corruptly” under 18 U.S.C. 

§ 1512(c)(2) by engaging in independently felonious conduct 

to obstruct the certification of the Electoral College vote. 

Moreover, the district court did not plainly err when it 

increased Robertson’s sentencing range under the Sentencing 

Guidelines based on findings that he obstructed or interfered 

with the administration of justice. 

So ordered. 
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: 

The best laws should be constructed as to leave 

as little as possible to the decision of the judge.

Aristotle*

It is not every day that a criminal appeal gives the court a 

“multiple choice” of grounds on which to vacate a conviction. 

I believe that Thomas Robertson’s appeal has done so. For me, 

the simplest ground for vacatur can be described as “done and 

dusted” because our court already decided the issue sub judice

in United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023). My 

colleagues stray from that precedent and I cannot join them.

Even if Fischer did not bind us, the majority’s formulation of 

the requisite mens rea—“corruptly” defined as having an 

“unlawful” purpose or acting through “unlawful” means—

makes the commission of any crime “corrupt” because any

crime requires the use of unlawful means or an unlawful 

purpose or both. Perhaps in attempting to define “corruptly,” 

we are “faced with the task of trying to define what may be 

indefinable,” as Supreme Court Justice Potter Stewart once 

observed regarding a different criminal statute. Jacobellis v. 

Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). But 

as Mr. Justice Stewart also noted (regarding pornography), see 

id., I know what “corruptly” does not mean. It does not mean 

what the majority says it does. Accordingly, I respectfully 

dissent.

I. BACKGROUND

Every four years, state-appointed “Electors,” equal to the 

total number of Senators and Representatives for each state, 

“vote by Ballot” for the President and the Vice President of the 

*

 Rhetoric, bk. I, ch. 1 (as reprinted in The Quotable 

Lawyer 165 (David Shrager & Elizabeth Frost eds., 1986)).
2

United States. U.S. Const. art. II, § 1. After voting in their 

respective states, the electors sign, seal and forward their votes 

to the President of the Senate. The President of the Senate, “in 

the presence of the Senate and House of Representatives,” then 

counts the votes. Id. amend. XII. “The person having the 

greatest number of votes for President, shall be the 

President . . . .” Id. The certification proceeding occurs “on the 

sixth day of January” following the presidential election. 3 

U.S.C. § 15.

On January 6, 2021, as the certification of the electoral

vote progressed, hundreds of people made their way past law 

enforcement and into the United States Capitol building to 

protest the certification.

1 Some of them assaulted police 

officers and damaged property, halting the certification 

proceeding for nearly six hours. 

Thomas Robertson was among the protesters who entered 

the Capitol. He was then a patrol sergeant in the Rocky Mount 

(Virginia) Police Department. According to the record, he

believed that the 2020 presidential election had been “rigged.” 

Suppl. App. 110. Robertson and two other men—a neighbor 

and a fellow police officer, Jacob Fracker—drove together to 

Washington, D.C., on January 6, 2021. They carried with them

water, food, three gas masks and a large wooden stick. Both 

Robertson and Fracker brought their department-issued 

handguns but, at Robertson’s suggestion, left them in 

Robertson’s car at a northern Virginia Metro station. 

Upon arriving in D.C., Robertson, Fracker and 

Robertson’s neighbor headed to the Washington Monument, 

where they listened to speeches by then-President Donald

Trump, among others. The three men then walked with a “big 

1

 The following description of the facts is drawn from the trial

record.
3

crowd” toward the Capitol building. Suppl. App. 120. By the 

time they arrived, the crowd was “pretty out of hand.” There 

was “yelling, screaming, [and] people . . . throwing things,” 

including “flash bangs [and] smoke grenades.” Id. at 121. 

Capitol Police were “overwhelm[ed]” by the rioters, id., and 

“severely outnumbered,” id. at 67. Fearing the Capitol Police’s 

use of pepper spray or tear gas, Robertson and the other two

donned their gas masks. 

Not long after, Metropolitan Police Department (MPD)

officers arrived to reinforce the Capitol Police. One group of 

MPD officers, known as unit CDU-42, walked in two singlefile lines toward the Capitol building, passing through 

protesters who were holding “large sticks” and “[t]hrowing 

cement.” Suppl. App. 93–95. When the MPD officers

approached his position, Robertson stood in their path, holding 

his wooden stick in the “[p]ort arms” position.2Id. at 103. One 

MPD officer testified that Robertson used the wooden stick to 

strike another officer before taking a “swipe[]” at the testifying 

officer. Id.

Robertson and Fracker then entered the Capitol. While 

inside, they posed for pictures in the Capitol Crypt (the room 

directly beneath the Capitol Rotunda), where they remained for 

about ten minutes. As police observed them from across the 

room, the crowd began chanting and Robertson banged his 

wooden stick to the chant. Eventually, law enforcement

officers regained control of the area and directed Robertson and 

Fracker to leave, which they did. Following January 6th, 

Robertson made a number of social media posts, including one 

with a photograph of him and Fracker in the Capitol Crypt,

expressing his pride in having protested. 

2

 “Port arms” is a “tactical position” in which a baton or stick 

may be used “both offensively and defensively.” Suppl. App. 85.
4

After the FBI contacted Robertson and Fracker and told 

them to turn themselves in, Robertson asked Fracker for 

Fracker’s cell phone. Fracker understood that Robertson 

intended to “make it disappear.” Suppl. App. 169–70. When 

Robertson was arrested on January 13, 2021, he did not have a 

cell phone on his person. An FBI search of his house the 

following week discovered a cell phone that had been activated 

on January 14, 2021—one day after Robertson’s arrest. In a 

text message exchange the day after he activated the phone, 

Robertson told a correspondent that “[a]nything that may have 

been problematic is destroyed.” Id. at 196. 

On March 23, 2022, Robertson was charged in a second 

superseding indictment with six counts based on his January 

6th-related conduct. Five of the counts charged: (1) civil 

disorder; (2) entering and remaining in a restricted building 

while carrying a dangerous weapon; (3) disorderly conduct in 

a restricted building while carrying a dangerous weapon;

(4) disorderly conduct in the Capitol building; and 

(5) destroying cell phones with the intent to render them 

unavailable for a grand jury investigation.

The sixth count forms the basis of Robertson’s appeal. It

charged Robertson with obstructing an official proceeding in 

violation of 18 U.S.C. § 1512(c)(2). Section 1512(c) reads in 

full:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a 

record, document, or other object, or 

attempts to do so, with the intent to impair 

the object’s integrity or availability for use in 

an official proceeding; or
5

(2) otherwise obstructs, influences, or 

impedes any official proceeding, or attempts 

to do so,

shall be fined under this title or imprisoned not 

more than 20 years, or both.

Before trial, Robertson moved to dismiss the subsection 

(c)(2) count. Robertson argued inter alia that the mens rea

adverb “corruptly” rendered subsection (c)(2) 

unconstitutionally vague, both on its face and as applied to him.

The district court denied Robertson’s facial vagueness 

challenge, concluding that, notwithstanding that there “may be 

scenarios at the edges that present vagueness problems,” the 

statute sufficiently specified the “‘core’ behavior to which it 

constitutionally applies.” United States v. Robertson, 588 F. 

Supp. 3d 114, 123 (D.D.C. 2022) (quotation omitted). The 

court likewise rejected Robertson’s as-applied challenge, 

concluding that the allegations in the indictment sufficed for a 

jury to conclude Robertson acted “corruptly.” Id. at 123–24.

The jury charge defined “corruptly” as used in section 

1512(c)(2) as follows: 

To act corruptly the defendant must use 

unlawful means, or act with an unlawful 

purpose, or both. The defendant must also act 

with consciousness of wrongdoing. 

Consciousness of wrongdoing means with an 

understanding or awareness that what the 

person is doing is wrong.

Not all attempts to obstruct or impede an official 

proceeding involve acting corruptly. For 

example, a witness in a court proceeding may 

refuse to testify by invoking his constitutional 
6

privilege against self-incrimination, thereby 

obstructing or impeding the proceeding. But he 

does not act corruptly. 

In contrast, an individual who obstructs or 

impedes a court proceeding by bribing a witness 

to refuse to testify in that proceeding or by 

engaging in other independently unlawful 

conduct does act corruptly.

Suppl. App. 203. 

The jury convicted Robertson on all counts. After trial, 

Robertson moved for a judgment of acquittal under Rule 29 of 

the Federal Rules of Criminal Procedure.3 Robertson argued 

that, in order to prove he acted “corruptly,” the Government 

was required to show that he acted “knowingly and dishonestly 

with the intent to obtain an unlawful advantage for himself or 

an associate, and that he influenced another to violate their 

legal duty.” App. 38. Robertson argued that the Government 

failed to meet that burden, relying instead on his “mere 

presence” inside the Capitol to establish that he acted 

“corruptly.” Id. at 39.

The district court denied Robertson’s motion, holding that 

section 1512(c)(2) is “properly narrowed” by the requirement 

that the Government prove Robertson acted with 

“consciousness of wrongdoing,” United States v. Robertson, 

610 F. Supp. 3d 229, 233 (D.D.C. 2022) (quoting Robertson, 

588 F. Supp. 3d at 123), and concluding that the evidence 

3

 See Fed. R. Crim. P. 29(a) (“[T]he court on the defendant’s 

motion must enter a judgment of acquittal of any offense for which 

the evidence is insufficient to sustain a conviction.”). 
7

“comfortably support[ed] the jury’s verdict on each element,” 

id. at 235. 

Robertson was sentenced to eighty-seven months’ 

imprisonment followed by three years of supervised release.

He timely appealed.

II. ANALYSIS

Robertson appeals the denial of his motion for judgment 

of acquittal and seeks vacatur of his section 1512(c)(2) 

conviction because the Government’s evidence was 

insufficient to show that he acted “corruptly.”

Reviewing a sufficiency-of-the-evidence challenge, the

court asks “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 

(1979) (emphasis omitted). Our sufficiency review “‘does not 

rest on how the jury was instructed’ but rather on how a 

properly instructed jury would assess the evidence.” United 

States v. Hillie, 14 F.4th 677, 682 (D.C. Cir. 2021) (quoting 

Musacchio v. United States, 577 U.S. 237, 243 (2016)); see 

also United States v. Khatallah, 41 F.4th 608, 634 (D.C. Cir. 

2022) (per curiam) (acquittal motion “tests sufficiency against 

‘how a properly instructed jury would assess the evidence,’ not 

on ‘how the jury was instructed’” (quoting Hillie, 14 F.4th at 

682)). The reason for this standard is simple: “To allow a 

conviction to stand where the defendant’s conduct ‘fails to 

come within the statutory definition of the crime,’ or despite 

insufficient evidence to support it, would violate the Due 

Process Clause.” Hillie, 14 F.4th at 683 (quoting Griffin v. 

United States, 502 U.S. 46, 59 (1991)). Even where, as here,

the defendant fails to object to the definition of the offense used

in the jury charge, his conviction must be set aside if the 
8

prosecution failed to produce sufficient evidence of one or 

more elements of the properly formulated offense. See id. (“A 

defendant does not ‘waive’ his rights . . . by failing to present 

the correct interpretation of the offense to the district court.”); 

cf. Boyle v. United Techs. Corp., 487 U.S. 500, 513–14 (1988) 

(“If the evidence presented in the . . . trial would not suffice, as 

a matter of law, to support a jury verdict under the properly 

formulated defense, judgment could properly be entered for the 

[defendant] at once, without a new trial. And that is so even 

though . . . [the defendant] failed to object to jury instructions 

that expressed the defense differently, and in a fashion that 

would support a verdict.”).

A. UNITED STATES V. FISCHER

To assess whether a properly instructed jury could have 

found the essential elements of the offense beyond a reasonable 

doubt, the court must first determine what the essential 

elements of the properly formulated offense in fact are.

Robertson’s appeal involves only one of section 1512(c)’s 

elements: the requirement that the defendant obstruct an 

official proceeding “corruptly.” 18 U.S.C. § 1512(c). As noted 

supra, United States v. Fischer defined “corruptly” and we are 

required to apply its definition. 64 F.4th 329.

4

The three Fischer defendants were indicted on various

offenses arising from their participation in the January 6, 2021, 

Capitol protest. Id. at 332. Of relevance here, each was charged 

with one count of Obstruction of an Official Proceeding under 

18 U.S.C. § 1512(c)(2). Fischer, 64 F.4th at 333. Each 

subsequently moved to dismiss the section 1512(c)(2) count.

Id. at 333–34. The district court granted each defendant’s

4

 Although Robertson concedes that Fischer does not bind us, 

the precedential effect of an earlier decision is a matter for the court, 

not the parties, to decide.
9

motion to dismiss. Id. at 334. The court first concluded that 

section 1512(c) is ambiguous regarding subsection (c)(2)’s 

relation to subsection (c)(1). The court explained that (c)(2) 

could be read as prohibiting any act that obstructs an official 

proceeding or as prohibiting only obstructive acts similar to 

those covered by (c)(1).5See United States v. Miller, 589 F. 

Supp. 3d 60, 67–68, 70–71 (D.D.C. 2022). The court chose the 

latter reading, in part because the former would render 

superfluous both subsection (c)(1) as well as (c)(2)’s use of the 

word “otherwise.” Id. at 68, 70. It concluded that (c)(2) 

“requires that the defendant have taken some action with 

respect to a document, record, or other object in order to 

corruptly obstruct, impede or influence an official proceeding.” 

Id. at 78. Because the indictments did not allege that the 

defendants committed obstructive acts in conjunction with “a 

document, record, or other object,” see 18 U.S.C. § 1512(c)(1),

the court dismissed the section 1512(c)(2) counts. Miller, 589 

F. Supp. 3d at 78; see United States v. Fischer, No. 1:21-cr234, 2022 WL 782413, at *4 (D.D.C. Mar. 15, 2022) (relying 

on Miller to dismiss section 1512(c)(2) count); Min. Order, 

United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022) 

(same).

This Court reversed. The Fischer majority held that under 

“the most natural reading of the statute,” section 1512(c)(2)

unambiguously “applies to all forms of corrupt obstruction of 

an official proceeding, other than the conduct that is already 

covered by § 1512(c)(1).” 64 F.4th at 336. In so doing, the 

majority explained that “otherwise” as used in (c)(2) does not 

limit the reach of that subsection to obstructive acts similar to 

5

 As noted supra, subsection (c)(1) prohibits “alter[ing], 

destroy[ing], mutilat[ing], or conceal[ing] a record, document, or 

other object, or attempts to do so, with the intent to impair the 

object’s integrity or availability for use in an official proceeding.” 18 

U.S.C. § 1512(c)(1).
10

those mentioned in subsection (c)(1) but instead means “in a 

different manner.” Id. at 336–37. Regarding section 

1512(c)(2)’s actus reus element, Judge Pan—who authored the 

lead opinion—explained that, notwithstanding that section 

1512(c)(2) “plainly extends to a wide range of conduct,” the 

provision contains “important limitations”: The obstructive act 

described in (c)(2) must be accompanied by “corrupt” intent 

and must target an “official proceeding.” Id. at 339.

In a section of her opinion not joined by Judge Walker,

who was the concurring judge, Judge Pan discussed the 

meaning of “corruptly.” She began with the observation that 

“the allegations against appellees appear to be sufficient to 

meet any proposed definition of ‘corrupt’ intent.” Id. (emphasis 

added). Although she declined to “express[] a preference for 

any particular definition of ‘corruptly,’” she “consider[ed] 

three candidates.” Id.6 Using any of the three definitions, she

concluded, a jury could find that the defendants acted 

“corruptly.” Id. at 339–40. She then opined that the sufficiency 

of the indictments did not turn on the “precise definition of 

6

 First, citing Arthur Andersen LLP v. United States, 544 U.S. 

696, 705 (2005), Judge Pan stated that “corruptly” can mean 

“wrongful, immoral, depraved, or evil.” Fischer, 64 F.4th at 339–40. 

Second, she stated that a defendant has a “corrupt” state of mind if 

he acts “with a corrupt purpose, through independently corrupt 

means, or both.” Id. at 340 (internal quotations omitted) (citing 

United States v. North, 910 F.3d 843, 942–43 (D.C. Cir. 1990)

(Silberman, J., concurring in part)). Third, Judge Pan suggested that 

“[a]n act is done corruptly if it’s done 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. at 340

(quoting United States v. Aguilar, 515 U.S. 593, 616–17 (1995)

(Scalia, J., concurring in part)). 
11

‘corruptly’” and the “exact contours of ‘corrupt’ intent” could 

be left “for another day.” Id. at 340.

Judge Walker’s concurrence—required in part to achieve 

a majority holding—adamantly (and, in my view, correctly) 

disagreed, declaring that “we must define [corruptly] to make 

sense of (c)(2)’s act element,” thereby not joining Judge Pan’s 

failure to do so. Id. at 351 (Walker, J., concurring in part). He

gave “corruptly” its “long-standing meaning,” which requires 

a defendant to act “with an intent to procure an unlawful benefit 

either for himself or for some other person.” Id. at 352 (quoting 

Marinello v. United States, 138 S. Ct. 1101, 1114 (2018) 

(Thomas, J., dissenting)). Otherwise, he went on, if subsection 

(c)(2) “has a broad act element and an even broader mental 

state,” the statute would have “breathtaking scope.” Id. at 351–

52. Under his interpretation (Judge Pan’s third option), a 

defendant “must not only know he was obtaining an ‘unlawful 

benefit,’ it must also be his ‘objective’ or ‘purpose.’” Id. 

(cleaned up) (quoting Marinello, 138 S. Ct. at 1114 (Thomas, 

J., dissenting)). Critically, Judge Walker expressly conditioned 

his vote on his reading of “corruptly.” He explained: “[M]y 

reading of ‘corruptly’ is necessary to my vote to join the lead 

opinion’s proposed holding on [the actus reus]. If I did not read 

‘corruptly’ narrowly, I would join the dissenting opinion.” Id. 

at 362 n.10. He also suggested his reading of “corruptly” may 

be controlling. Id. (citing Marks v. United States, 430 U.S. 188, 

193 (1977)).

Judge Katsas dissented. In his view, section 1512(c)(2) 

applies only to obstructive acts related to the specific acts of 

evidence spoliation covered by subsection (c)(1). To reach that 

conclusion, he read “otherwise” in (c)(2) to mean “in a manner 

similar to” rather than “in a manner different from.” Id. at 363 

(Katsas, J., dissenting). He also relied on “normal linguistic 

usage” and interpretive canons to find that subsection (c)(2), a 
12

catch-all provision, must not render superfluous the longer, 

more complex list of examples in (c)(1). Id. And, most notably 

here, he concluded that the majority’s reading renders 

subsection (c)(2) implausibly broad and unconstitutional in a 

significant number of its applications. Id. at 363, 378–79. On 

the mens rea question, Judge Katsas explained that, in his view, 

none of the three definitions of “corruptly” proposed by Judge 

Pan “inspire[d] much confidence.” Id. at 379. Thus, “[r]ather 

than try to extract meaningful limits out of that broad 

and vague adverb,” he would have “acknowledged that 

Congress limited the actus reus to conduct that impairs the 

integrity or availability of evidence.” Id. at 382. 

The determinative question for us is whether Fischer 

constitutes a holding regarding the meaning of “corruptly.” It 

does. Judges Pan and Walker agreed that a defendant acts 

“corruptly” if he acts with the intent to obtain an unlawful 

benefit for himself or another. Recall that Judge Pan considered

three definitions of “corruptly” and concluded that the

indictments sufficiently charged the Fischer defendants under 

any of the three. Id. at 339–40 (opinion of Pan, J.). And Judge 

Walker conditioned his vote on one definition—the one he 

called the “long-standing meaning” of “corruptly.” See id. at 

352, 362 n.10 (Walker, J., concurring in part). That “longstanding meaning” was one of the three definitions Judge Pan

considered.

7 Two judges, then, agreed that the Fischer

7

 Compare id. at 340 (opinion of Pan, J.) (“[A]n act is done 

corruptly if it’s done 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.” (quoting Aguilar, 515 U.S. at

616–17 (Scalia, J., concurring in part))), with id. at 352 (Walker, J., 

concurring in part) (“‘[C]orruptly’ . . . requires a defendant to act 

‘with an intent to procure an unlawful benefit either for himself or 
13

defendants could be found to have acted “corruptly” if they 

obstructed the election certification proceeding with the intent 

to obtain an unlawful benefit.

8

The definition of “corruptly” endorsed by Judge Walker 

binds us because that definition was necessary to create a 

holding. See Fischer, 64 F.4th at 362 n.10 (Walker, J., 

concurring in part) (“[M]y reading of ‘corruptly’ is necessary 

to my vote to join the lead opinion’s proposed holding on [the 

actus reus]. If I did not read ‘corruptly’ narrowly, I would join 

the dissenting opinion.”). We must follow “those portions of 

the opinion necessary to that result by which we are bound.” 

Util. Air Regul. Grp. v. EPA, 885 F.3d 714, 720 (D.C. Cir. 

2018) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 

67 (1996)); see also Holding, Black’s Law Dictionary (11th ed. 

2019) (defining “holding” as “[the] court’s determination of a 

for some other person.’” (quoting Marinello, 138 S. Ct. at 1114 

(Thomas, J., dissenting))).

8

 Although Judge Pan declared that she took “no position on the 

exact meaning of ‘corruptly,’” id. at 341 n.5 (opinion of Pan, J.), that 

cannot be right. In reviewing a motion to dismiss an indictment, the 

operative question is whether the allegations are sufficient for a 

reasonable jury to conclude the defendant committed the charged

offense. See United States v. Sampson, 371 U.S. 75, 76 (1962). In 

order to uphold the Fischer indictments, then, Judge Pan had to

conclude that the allegations were sufficient for a jury to find that the 

defendants acted “corruptly.” And, to so conclude, she had to assign 

a meaning to “corruptly” that at least one panel member agreed with.

See Fischer, 64 F.4th at 362 n.10 (Walker, J., concurring in part) 

(“Without taking a position, the lead opinion could not conclude, as 

it does, that the indictments should be upheld.”).
14

matter of law pivotal to its decision”). Accordingly, I believe

the improper-benefit reading of “corruptly” binds us.

9

The majority resists this conclusion by focusing only on 

the result in Fischer while ignoring its rationale. According to 

the majority, “the only holding in Fischer was the majority’s 

ruling reversing the district court’s erroneous interpretation of 

a different part of the statute – the ‘otherwise obstructs’ 

9

 Even assuming arguendo that Fischer cannot be explained by 

a “single rationale,” the improper-benefit reading of “corruptly” 

controls because Judge Walker’s reading represents the “position 

taken” by the judge “who concurred in the judgments on the 

narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg v. 

Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). We 

have explained that the “narrowest ground” is a “logical subset of 

other, broader opinions.” King v. Palmer, 950 F.2d 771, 781 (D.C. 

Cir. 1991) (en banc). Although Judge Pan would have upheld the 

indictments under any of three definitions of “corruptly,” see

Fischer, 64 F.4th at 340, Judge Walker agreed to do so under only

one of those definitions, see id. at 362 (Walker, J., concurring in 

part). Put differently, Judge Pan concluded that “corruptly” could 

mean A or B or C and, regardless of the definition chosen, the 

indictments should be upheld; Judge Walker, however, concluded 

that “corruptly” must mean C. His concurrence, then, represents the 

“position taken” by the judge “who concurred in the judgments on 

the narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg, 428 

U.S. at 169 n.15).

The majority argues that Judge Walker’s and Judge Pan’s 

opinions “rely on rationales that do not overlap” because the latter 

focused on the sufficiency of the three possible definitions but the 

former found one definition necessary. Maj. Op. 36–37. That 

characterization does not prevent Judge Walker’s concurrence from 

forming a logical subset of the lead opinion. Another way of phrasing 

Judge Walker’s conclusion that C is necessary is to say that only C 

is sufficient. Thus, Judge Pan found that A or B or C is sufficient and 

Judge Walker found that only C is sufficient. That yields a logical 

subset.
15

clause.” Maj. Op. 32. But that overlooks entirely how the Court 

reached the result of reversal. What gives a judicial opinion 

precedential effect beyond the parties is not its judgment but its 

rationale. Ramos v. Louisiana, 140 S. Ct. 1390, 1404 (2020) 

(plurality opinion) (“It is usually a judicial decision’s 

reasoning—its ratio decidendi—that allows it to have life and 

effect in the disposition of future cases.”); see also United 

States v. Montague, 67 F.4th 520, 531 n.2 (2d Cir. 2023) 

(“[W]e do not apply prior judgments ‘stripped from any 

reasoning’ articulated in those cases.”) (citation omitted). The 

reasoning necessary to the result in Fischer includes Judge 

Walker’s definition of “corruptly” because he expressly 

conditioned his interpretation of the “otherwise obstructs” 

clause on his understanding of “corruptly.” Fischer, 64 F.4th at 

362 n.10 (Walker, J., concurring in part). Thus, Fischer did 

reach a holding on the question before us.

B. MEANING OF “CORRUPTLY”

Even assuming arguendo that Fischer did not decide what 

“corruptly” means, I believe “corruptly” is best read to require 

the defendant to act with the intent of obtaining an unlawful 

benefit for himself or another. To reach that conclusion, I rely 

on (1) the historical treatment of the “corrupt” mental state; 

(2) other federal statutes requiring evidence of “corrupt” intent; 

(3) the structure of Chapter 73 of Title 18 in general and of

section 1512(c) in particular; and (4) the rule of lenity.

1. Common-Law Meaning of “Corruptly”

As Judge Walker explained in Fischer, “corruptly” has a 

settled mens rea meaning. See Fischer, 64 F.4th at 352 

(Walker, J., concurring in part); see also United States v. 

Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concurring in 

part) (“[T]he term ‘corruptly’ in criminal laws has a 

longstanding and well-accepted meaning.”). The criminal 
16

proscription against “corrupt” behavior first appeared in 

England around the 13th century—a time when public 

officials, most notably the sheriff, “carried a broad range of 

powers” and “were only loosely accountable to any central 

authority.” Jeremy N. Gayed, “Corruptly”: Why Corrupt State 

of Mind Is an Essential Element for Hobbs Act Extortion Under

Color of Official Right, 78 Notre Dame L. Rev. 1731, 1737 

(2003). Despite wielding considerable power, officials “were 

both poorly and irregularly paid [by the Crown].” 2 William 

Holdsworth, A History of English Law 294 (4th ed. 1936); see 

Gayed, supra, at 1737 (“Although the sheriff was revenue 

collector, administrator, and law enforcer for the king, he 

received little or no compensation from the crown for his 

duties.”). To compensate for this deficiency, officials exacted 

fees from those they served, which fees were fixed by law or 

custom. See Gayed, supra, at 1737–38; 10 Holdsworth, supra, 

at 153. Because the amount that officials were authorized to

charge was in their view insufficient, however, they resorted to 

“blatant and widespread disregard for legal and customary 

limits on their fees.” Gayed, supra, at 1738.

This practice gave rise to the earliest laws against 

corruption, “particularly th[ose] proscribing extortion and 

bribery.” Id. at 1739. Early extortion laws provided that 

officials “could not knowingly charge more than the customary 

amount.” Fischer, 64 F.4th at 353 (Walker, J., concurring in 

part) (citing Gayed, supra, at 1735–38). Thus, even if an 

official overcharged for his services, if he did not knowingly 

do so, he did not act “corruptly.” See Gayed, supra, at 1748 

(“[T]he case law ostensively defines ‘corruptly’ as . . . the 

purpose to give, take, receive, or accept, anything of value that 

is illegal or inappropriate to that particular office, knowing that 

it is illegal or inappropriate.”). Common-law bribery statutes

provided that “the mere payment of a fee to an official for a 

benefit was not enough—the bribe payer had to know he was 
17

seeking an unlawful benefit.” Fischer, 64 F.4th at 353 (Walker, 

J., concurring in part); see also James Lindgren, The Elusive 

Distinction Between Bribery and Extortion: From the Common 

Law to the Hobbs Act, 35 UCLA L. Rev. 815, 823 (1988) 

(“[E]ven someone who is paying to influence official behavior 

in his favor may not be acting corruptly if he is merely buying 

back fair treatment from an official who threatens to inflict 

unfair treatment.”).

The English courts’ understanding of the “corrupt” mental 

state carried over to early American courts. The Supreme Court 

of Pennsylvania declined to hold one official liable for 

charging concededly “illegal” (excessive) fees because he did 

not have “criminal intentions.” Respublica v. Hannum, 1 

Yeates 71, 74 (Pa. 1791) (per curiam). Three years later that

same court held that a criminal information lay against a justice 

of the peace who released the defendant on his recognizance 

notwithstanding the defendant’s grossly insufficient bail 

payment because the justice of the peace “could not have been 

so ignorant as not to have known, that the taking of 

recognizances in such sums, was a reproach to the public 

justice of the country.” Respublica v. Burns, 1 Yeates 370, 370 

(Pa. 1794) (per curiam). The fact that the justice of the peace

issued a certificate stating that the defendant “had entered into 

recognizance with sufficient securities, prove[d] that he knew 

he was acting wrong in his office.” Id. at 371. In Runnells v. 

Fletcher, the Supreme Judicial Court of Massachusetts 

assessed whether the defendant, a deputy sheriff collecting a 

debt, had committed extortion by “demanding and receiving of 

the plaintiff a greater fee” than he was authorized to collect. 15 

Mass. 525, 525 (1819). The court decided he had not, reasoning 

that he had not demanded the excess fees “wilfully and 

corruptly” but had believed they were warranted “as a 

compensation for labor and trouble attending a supposed 

injury.” Id. at 526; cf. Jenifer v. Lord Proprietary, 1 H. & McH. 
18

535, 535 (Md. 1774) (sheriff convicted of receiving “greater 

and larger fees” than he was entitled to). In Cleaveland v. State, 

the Supreme Court of Alabama rejected the argument that an 

official could be held criminally liable for imposing unlawful 

charges without knowing they were illegal. 34 Ala. 254, 259 

(1859). To be liable, the court held, officers must “intentionally 

charge and take fees which they know at the time they are not 

authorized to collect.” Id.

The long history of the “corrupt” mental state, then, has 

imposed two requisites: to act “corruptly,” the defendant must 

intend to secure an unlawful benefit for himself or another; and,

the defendant must know that the benefit he seeks is unlawful 

or improper. Prominent legal treatises, both historical and 

modern, reaffirm these principles. See 2 Francis Wharton, A 

Treatise on the Criminal Law of the United States § 2518 (7th 

ed. 1874) (to be “corrupt,” act must be done “above all with 

knowledge that it was wrong”); 2 Emlin McClain, Treatise on 

the Criminal Law as Now Administered in the United States

130 (1897) (official did not extort if he “had ground to believe 

and did believe that he was justified in taking the fees 

received”); Rollin M. Perkins & Ronald N. Boyce, Criminal 

Law 446–47 (3d ed. 1982) (“[E]xtortion is not committed by 

the officer who innocently receives an unlawful fee as a result 

of an honest mistake of fact or of law.”). In addition, modern 

legal dictionaries confirm the unlawful-benefit element of 

“corruptly.” Black’s Law Dictionary states, “[a]s used in 

criminal-law statutes, corruptly usu[ally] indicates a wrongful 

desire for pecuniary gain or other advantage.” Corruptly (def. 

2), Black’s Law Dictionary (11th ed. 2019). And Ballentine’s 

Law Dictionary defines “corruptly” as “[w]rongfully; acting 

with the intent to obtain an improper advantage for self or 

someone else, inconsistent with official duty and the rights of 
19

others.” Corruptly, Ballentine’s Law Dictionary 276 (3d ed. 

1969).10

2. “Corruptly” Used in In Pari Materia Statutes

Like common-law extortion and bribery, modern federal 

statutes using a “corrupt” mens rea generally require proof that 

the defendant acted with the intent to secure an unlawful 

10

 Interpreting a different criminal statute, the Supreme Court 

has recently noted that “[w]hen Congress transplants a common-law 

term, the ‘old soil’ comes with it.” United States v. Hansen, 143 S. 

Ct. 1932, 1944 (2023) (citation and some internal quotation marks 

omitted). Yet the majority here spends little time discussing the 

history just recounted. See Maj. 39–40. In fact, the only 

counterevidence it cites is a lone contempt statute from 1831, which 

“does not include any mention of a required intent to procure a 

benefit.” Id. at 40 (discussing Act of Mar. 2, 1831, ch. 98, § 2, 4 Stat. 

487). But the statute need not spell out what is already inherent in the 

mens rea of “corruptly,” as the common-law history of the word 

demonstrates.

The majority also argues that the common-law meaning “would 

come as a surprise” to our sister circuits that have not read the 

unlawful-benefit requirement into section 1512(c)(2). Id. at 28–29 

(collecting authorities). If so, the majority’s definition would come 

equally as a surprise. None of the majority’s authorities adopts its 

“independently unlawful means” definition and some outright 

conflict with it. Cf. Maj. Op. 26–27 and 22 n.3 (rejecting the 

argument that the defendant must act “dishonestly” and expressing 

doubt that he must act “knowingly”), with United States v. Bedoy, 

827 F.3d 495, 510 (5th Cir. 2016) (requiring the defendant to act 

“knowingly and dishonestly”); United States v. Delgado, 984 F.3d 

435, 452 (5th Cir. 2021) (same); United States v. Mintmire, 507 F.3d 

1273, 1289 (11th Cir. 2007) (same); United States v. Gordon, 710 

F.3d 1124, 1151 (10th Cir. 2013) (same). Further, not one of the 

cases the majority cites even mentions the common-law history of 

“corruptly.” They are, then, of little help in construing the commonlaw history of “corruptly.” 
20

benefit. For example, 18 U.S.C. § 201, titled “[b]ribery of 

public officials and witnesses,” imposes penalties on an 

individual who “corruptly gives, offers or promises anything 

of value to any public official . . . with intent . . . to influence 

any official act.” 18 U.S.C. § 201(b)(1)(A) (emphasis added).

Courts have interpreted “corruptly” in that statute to mean that 

the defendant must intend that the bribe be part of a “quid pro 

quo.” United States v. Tomblin, 46 F.3d 1369, 1379–80 (5th 

Cir. 1995); United States v. Terry, 707 F.3d 607, 612 (6th Cir. 

2013). That is, the bribe payer “must intend to secure a benefit 

from the bribe taker and vice versa.” Fischer, 64 F.4th at 

354 (Walker, J., concurring in part).

“Corruptly” is also used in other obstruction-of-justice

statutes. For most of those provisions, courts have not 

interpreted “corruptly” to require proof that the defendant 

intended to secure an unlawful benefit. As Judge Walker 

observed in Fischer, that omission reflects that, for many 

provisions, “the connection between ‘corruptly’ and the 

defendant’s intent to procure an unlawful benefit is implicit,” 

as the statutes criminalize conduct that necessarily results in 

securing some unlawful benefit. Id. at 362 (Walker, J.,

concurring in part). For example, 18 U.S.C. § 1503

criminalizes “corruptly” injuring or influencing a juror or 

judicial officer; 18 U.S.C. § 1512(b)(2) makes it unlawful to 

“corruptly persuade[]” someone to “withhold testimony,”

destroy evidence or “evade legal process”; and 18 U.S.C. 

§ 1517 criminalizes “corruptly” obstructing “any examination 

of a financial institution by an agency of the United States.” 

With respect to these statutes, then, the improper-benefit 

requirement need not be express because commission of the 

actus reus necessarily results in an improper advantage—
21

influencing a juror, suppressing evidence or avoiding financial 

investigation, respectively.11

If a criminal statute prohibits a broad range of conduct, as 

section 1512(c)(2) does, however, “it is problematic to leave 

implicit the long-established requirement that a defendant acts 

‘corruptly’ only when he seeks to secure an unlawful benefit.” 

Fischer, 64 F.4th at 355 (Walker, J., concurring in part). That

statutory silence is one reason courts give “corruptly” its 

narrow meaning in 26 U.S.C. § 7212(a), a statute that imposes 

penalties on any individual who “corruptly” “endeavors to

obstruct or impede[] the due administration of [the Internal 

Revenue Code].” See, e.g., United States v. Floyd, 740 F.3d 22, 

31 (1st Cir. 2014) (“[T]here is a consensus among the courts of 

appeals that ‘corruptly,’ as used in section 7212(a), means 

acting with an intent to procure an unlawful benefit either for 

the actor or for some other person.”) (collecting cases); see also 

Eric J. Tamashasky, The Lewis Carroll Offense: The EverChanging Meaning of “Corruptly” Within the Federal 

Criminal Law, 31 J. LEGIS. 129, 130 (2004) (“[T]he common 

law meaning [of ‘corruptly’] already is used consistently across 

the federal circuits in the context of prosecutions under 26 

U.S.C. § 7212(a).”). Whereas suppressing evidence within the 

meaning of section 1512(b)(2) or influencing a juror under 

section 1503 “will almost necessarily result in an improper 

advantage to one side in the case,” obstructing the

11

 That the improper-benefit requirement is frequently implicit, 

rather than express, has been recognized. See Aguilar, 515 U.S. at 

616–17 (Scalia, J., concurring in part) (“Acts specifically intended to 

‘influence, obstruct, or impede, the due administration of 

justice . . . are necessarily corrupt.” (quoting 18 U.S.C. § 1503));

North, 910 F.2d at 939–46 (Silberman, J., concurring in part) 

(reading “corruptly” in section 1505 as not including an unlawfulbenefit requirement “can be taken to express the view that any

endeavor to obstruct a judicial proceeding is inherently . . . corrupt”).
22

administration of the Internal Revenue Code under section 

7212(a) could encompass conduct that does not result in a party 

“gain[ing] an improper advantage.” United States v. Reeves, 

752 F.2d 995, 999 (5th Cir. 1985). With respect to the latter

statute, then, courts have required that the improper-benefit 

requirement be explicit. E.g., id. at 999–1002.

Like in section 7212(a), section 1512(c)(2)’s actus reus

can capture conduct that does not produce an improper benefit.

Not every attempt to influence an official proceeding is carried 

out “corruptly.” For example, a lobbyist “who persuades a 

congressman to ask hard questions at a committee hearing has 

influenced the proceeding” and might therefore come within 

section 1512(c)(2). Fischer, 64 F.4th at 361 (Walker, J., 

concurring in part). But the lobbyist has not acted “corruptly.” 

Thus, to ensure that such conduct does not trigger section 

1512(c)(2), the improper-benefit requirement must be 

rigorously enforced. See id. at 356 (“[T]he more conduct an 

obstruction statute reaches, the more vigilantly we must apply 

the long-established . . . meaning of ‘corruptly.’”).

3. Statutory Structure and History: Chapter 73 and 

Section 1512

Both the structure and history of Chapter 73 in general and 

of section 1512 specifically offer further support for the 

unlawful-benefit reading. Chapter 73 comprises twenty-two 

distinct obstruction-of-justice sections, several prescribing

multiple offenses. Section 1512 was initially enacted as part of 

the Victim and Witness Protection Act of 1982, Pub. L. No. 97-

291, § 4, 96 Stat. 1248, 1249. The codified statute is titled 

“[t]ampering with a witness, victim, or an informant” and

criminalizes specific types of obstructive conduct, including 

“kill[ing] or attempt[ing] to kill another person” in order to 

prevent the person from attending or testifying at an official 
23

proceeding, 18 U.S.C. § 1512(a)(1)(A); “us[ing] physical force 

or the threat of physical force” or “knowingly us[ing] 

intimidation, threat[s], or corrupt[] persua[sion]” in order to 

“influence, delay, or prevent the testimony of any person in an 

official proceeding,” id. § 1512(a)(2)(A), (b)(1), or “caus[ing]

or induc[ing] any person to” “withhold [evidence] from an 

official proceeding” or “impair [an] object’s integrity or 

availability for use in an official proceeding,” id. 

§ 1512(a)(2)(B)(i), (b)(2)(B); and “intentionally harass[ing] 

another person” to prevent the person from attending or 

testifying at an official proceeding, id. § 1512(d)(1).

Section 1512(c), the provision under which Robertson was

charged and convicted, became law twenty years later as part 

of the Corporate Fraud Accountability Act of 2002, see Pub. L. 

No. 107-204, § 1102, 116 Stat. 745, 807, one of several acts 

composing the broader Sarbanes-Oxley Act of 2002, the 

enactment of which “was prompted by the exposure of [energy 

giant] Enron’s massive accounting fraud and revelations that 

the company’s outside auditor, Arthur Andersen LLP, had 

systematically destroyed potentially incriminating 

documents,” see Yates v. United States, 574 U.S. 528, 535–36 

(2015) (plurality opinion). The Enron scandal revealed a 

“yawning gap” in the obstruction-of-justice enforcement 

scheme: although then-current statutes prohibited an individual 

from inducing someone else to destroy evidence, none imposed

liability on an individual who destroyed evidence himself. Id.

at 557–58 (Kagan, J., dissenting). In 2002, the Congress cured 

that “conspicuous omission” by enacting 18 U.S.C. § 1519, 

which criminalizes altering or destroying “any record, 

document, or tangible object” with the intent to impede or 

influence a federal investigation. See Yates, 574 U.S. at 536

(plurality opinion). 
24

Section 1512(c) was enacted at the same time as section 

1519 but as a last-minute addition, having been “introduced in 

a floor amendment late in the legislative process.” Fischer, 64 

F.4th at 347 (citing 128 Cong. Rec. S6542 (daily ed. July 10, 

2002)). Section 1512(c) has two subsections: “(c)(1) prohibits 

‘corruptly’ altering or destroying a ‘document, or other 

object . . . with the intent to impair the object’s integrity or 

availability for use in an official proceeding’” and “(c)(2) is a 

residual clause, making it an offense to ‘corruptly’ ‘otherwise 

obstruct[], influence[], or impede[] any official proceeding.’” 

Id. at 358 (Walker, J., concurring in part) (alterations in 

original). “Subsection (c)(2)’s inconspicuous place within the 

statutory scheme suggests that it is an odd place for Congress 

to hide a far-reaching criminal provision,” id., including, in 

particular, the egregiously ill-fit of prosecuting trespassing 

protesters. Giving “corruptly” its common-law meaning 

correctly limits its reach. “Even though (c)(2) has a broad act 

element—there are many ways to obstruct, influence, or 

impede an official proceeding—its mental state keeps it in 

check: A defendant is liable only if he intends to procure an 

unlawful benefit.” Id. Indeed, to conclude that hundreds—

perhaps thousands—of individuals entered the Capitol building 

“corruptly”—by reading “corruptly” to mean nothing more 

than “acting with an independently unlawful purpose or 

through independently unlawful means”—would strip the 

word of any independent meaning.

4. Other—Flawed—Definitions of “Corruptly”

Citing Arthur Andersen LLP v. United States, 544 U.S. 696 

(2005), the lead Fischer opinion suggested that “corruptly” 

may simply mean “wrongful, immoral, depraved, or evil.” 64 

F.4th at 340 (opinion of Pan, J.) (quoting Arthur Andersen, 544 

U.S. at 705). And other courts have adopted this definition (or 

a variation thereof), both in the context of section 1512(c), see, 
25

e.g., United States v. Matthews, 505 F.3d 698, 706 (7th Cir. 

2007), and related obstruction statutes, see, e.g., United States 

v. Edlind, 887 F.3d 166, 173 (4th Cir. 2018) (interpreting 18 

U.S.C. § 1512(b)); United States v. Edwards, 869 F.3d 490, 

498 (7th Cir. 2017) (same); United States v. Quattrone, 441 

F.3d 153, 170, 173–76 (2d Cir. 2006) (interpreting 18 U.S.C. 

§§ 1503, 1505, 1512(b)). Those cases have found this 

definition appealing because it gives “corruptly” its common 

or colloquial meaning.12 And although, as a general matter,

“words in statutes should be given their common or popular 

meanings[] in the absence of [a] congressional definition,” 

North, 910 F.2d at 881, “[s]tatutory language need not be 

colloquial,” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in 

part). Indeed, “where Congress borrows terms of art in which 

are accumulated the legal tradition and meaning of centuries of 

practice, it presumably knows and adopts the cluster of ideas 

that were attached to each borrowed word.” Morissette v. 

United States, 342 U.S. 246, 263 (1952). Thus, there are 

compelling reasons that “corruptly” should not be given a 

colloquial meaning in section 1512(c).

For starters, Arthur Andersen, the primary authority for the

colloquial definition, simply noted that “corruptly” is 

12

 Lay dictionaries define “corruptly” by using the adverbial 

form of “corrupt.” Corruptly, Webster’s Third New International 

Dictionary 512 (1976) (“[I]n a corrupt manner; by corruption.”); 

Corruptly, Oxford English Dictionary (2d ed. 1989) (“In a corrupt 

or depraved manner; pervertedly; by means of corruption or 

bribery.”). “Corrupt,” in turn, is defined as “depraved, evil; perverted 

into a state of moral weakness or wickedness.” Webster’s Third New 

International Dictionary, supra, at 512; see Corrupt, Oxford English 

Dictionary, supra (“Debased in character; infected with evil; 

depraved; perverted; evil, wicked.”); Corrupt, American Heritage 

College Dictionary 321 (4th ed. 2007) (“Marked by immorality and 

perversion; depraved.”).
26

“normally associated with” the adjectives “wrongful, immoral, 

depraved, or evil.” 544 U.S. at 705. The opinion never 

“suggested that this adjectival string could supply a complete 

definition.” Fischer, 64 F.4th at 379 (Katsas, J., dissenting); 

accord United States v. Watters, 717 F.3d 733, 735 (9th Cir. 

2013) (“While the Court in Arthur Andersen did 

observe . . . that ‘corruptly’ is generally associated with 

‘wrongful, immoral, depraved, or evil,’ the Court’s holding 

was not that the definition of ‘corruptly’ had to include those 

words.” (quoting Arthur Andersen, 544 U.S. at 705)). Indeed, 

the Arthur Andersen Court expressly declined to “explore[]” 

the “outer limits” of the term because, regardless of the precise 

definition, the jury instructions in question “simply failed to 

convey the requisite consciousness of wrongdoing.” Arthur 

Andersen, 544 U.S. at 706. The Arthur Andersen defendant 

argued that “corruptly” in 18 U.S.C. § 1512(b)—a different

obstruction provision—meant “‘knowingly and dishonestly, 

with the specific intent to subvert or undermine the integrity’

of a proceeding.” Id. (quotation omitted). Instructing the jury,

however, the district court declined to use “dishonestly” and 

instead added “impede” to “subvert or undermine.” Id. The 

instruction thus read: “The word ‘corruptly’ means having an 

improper purpose. An improper purpose, for this case, is an 

intent to subvert, undermine, or impede the fact-finding ability 

of an official proceeding.” United States v. Arthur Andersen, 

LLP, 374 F.2d 281, 293 (5th Cir. 2004). On review, the 

Supreme Court found the two changes “significant” because 

“dishonesty” was no longer “necessary to a finding of guilt” 

and “impede” had “broader connotations” than “subvert or 

undermine.” Arthur Andersen, 544 U.S. at 706–07 (alterations 

accepted). Thus, the district court’s instruction “diluted the 

meaning of ‘corruptly’ so that it covered innocent conduct.” Id. 

at 706. The Court also implied that a narrowing construction of 

“corruptly” was needed to counteract the statute’s broad actus 

reus: “The dictionary defines ‘impede’ as ‘to interfere with or 
27

get in the way of the progress of’ . . . . By definition, [that 

applies to] anyone who innocently persuades another to 

withhold information from the Government . . . . With regard 

to such innocent conduct, the ‘corruptly’ instructions did no 

limiting work whatsoever.” Id. at 707 (quotation omitted).

Arthur Andersen plainly warns against giving “corruptly” 

in section 1512(c) its colloquial meaning. In fact, because 

section 1512(c)’s actus reus is broader than section 1512(b)’s 

actus reus, the need to cabin “corruptly” is even more pressing 

here. Whereas section 1512(b) reaches comparatively discrete

categories of wrongful conduct such as causing someone to 

withhold evidence, section 1512(c)(2) encompasses any 

attempt to influence or impede an official proceeding, 

including conduct that is otherwise lawful. See Fischer, 64 

F.4th at 344–45. Moreover, the defendant’s mental state is 

ordinarily a question of fact for the jury. See North, 910 F.2d 

at 942 (Silberman, J., concurring in part) (“[I]t seems 

inescapable that this is a question of fact for the jury to 

determine whether an endeavor was undertaken corruptly.”). 

Reading section 1512(c) to criminalize “wrongful, immoral, 

depraved, or evil” conduct would support a guilty verdict based 

on “little more than a jury’s subjective disapproval of the 

conduct at issue.” See Fischer, 64 F.4th at 379–80 (Katsas, J., 

dissenting); see also Kolender v. Lawson, 461 U.S. 352, 358 

(1983) (“Where the legislature fails to provide . . . minimal 

guidelines, a criminal statute may permit ‘a standardless sweep 

[that] allows policemen, prosecutors, and juries to pursue their 

personal predilections.’” (alteration in original) (quoting Smith 

v. Goguen, 415 U.S. 566, 575 (1974))).13

13

 The majority also relies heavily on Judge Silberman’s 

separate opinion in North, which suggests that a defendant’s use of 

“independently criminal” means satisfies the mens rea of 
28

Defining “corruptly” by reference to ambiguous adjectives 

is also objectionable because this Court expressly rejected that 

definition in United States v. Poindexter, 951 F.2d 369 (D.C. 

Cir. 1991). That case involved the prosecution of Admiral John 

Poindexter for his role in the Iran-Contra Affair. We held that 

“corruptly” as used in 18 U.S.C. § 1505 was vague “on its face” 

and that the “various dictionary definitions of the adjective

‘corrupt’” did “nothing to alleviate the vagueness problem.” Id. 

at 378. “Words like ‘depraved,’ ‘evil,’ ‘immoral,’ ‘wicked,’ 

and ‘improper,’” we explained, did not illuminate the meaning 

of “corruptly” because they “are no more specific—indeed they 

may be less specific—than ‘corrupt.’” Id. at 379; see also 

Cartwright v. Maynard, 822 F.2d 1477, 1489 (10th Cir. 1987) 

(en banc) (“Vague terms do not suddenly become clear when 

they are defined by reference to other vague terms.”). 

Consider an alternative definition of “corruptly”—the one 

the majority adopts. “Corruptly,” it contends, encompasses 

“act[ing] with a corrupt purpose or via independently corrupt 

means.” Maj. Op. 17.

14 To avoid circularity, the majority then 

“corruptly.” See North, 910 F.2d at 943 (Silberman, J., concurring in 

part) (interpreting 18 U.S.C. § 1505). But Judge Silberman was in 

dissent in his discussion of the meaning of “corruptly.” See id. at 946 

(noting that the majority “reaches the opposite result” and “renders 

the word ‘corruptly’ meaningless”). Nor did he discuss the commonlaw history of the word in reaching his conclusion—an oversight that 

matters here, especially as we are plainly not bound by his view.

14

 Note (although it hardly bears mentioning) that “corruptly” 

requires something more than the specific intent to commit the actus 

reus. If the specific intent to influence, obstruct or impede a 

proceeding were enough, section 1512(c)(2) would be untenably 

broad, capturing anyone who attempts to influence any official 

proceeding for any reason. If we were to adopt that interpretation, 

“we might as well convert all of Washington’s office buildings into 
29

equates “corrupt” with “unlawful.” Id. at 20–21.15 My 

colleagues’ definition gives section 1512(c)(2) an eye-popping 

sweep. Start with “unlawful means.” As Judge Katsas 

explained in Fischer, “even if independently unlawful means 

were necessary, section 1512(c)(2) still would cover large 

swaths of advocacy, lobbying, and protest.” Fischer, 64 F.4th 

at 380 (Katsas, J., dissenting). Consider “[a] protestor who 

demonstrates outside a courthouse, hoping to affect jury 

deliberations.” Id. Or a federal employee who convinces a 

congressman to change his vote on pending legislation. Id. Or 

an individual who peacefully protests a bill in the Senate 

gallery. Id. Under a “corrupt means” interpretation of

“corruptly,” all three would violate section 1512(c)(2) because 

all attempted to influence an official proceeding by violating

an independent statute to do so. Id.; see also 18 U.S.C. § 1507 

(prohibiting picketing outside courthouse with intent to 

influence judge, juror or witness); id. § 1913 (prohibiting 

lobbying by agency employees); 40 U.S.C. § 5104(e)(2)(G) 

(prohibiting demonstrating inside Capitol). As a result, each 

would face up to twenty years in prison, rather than a maximum 

prisons.” North, 910 F.2d at 942 (Silberman, J., concurring in part). 

Moreover, reading “corruptly” to require only the specific intent to 

influence, obstruct or impede a proceeding would be inconsistent 

with even the colloquial meaning of corruptly, which implies some 

degree of wrongfulness. See Arthur Andersen, 544 U.S. at 706 

(“corruptly” requires “consciousness of wrongdoing”).

15 The majority’s equation of “corruptly” with “unlawfully”

belies its assertion that it is merely adopting the “ordinary meaning” 

of the word. See Maj. Op. 14. According to the majority, the plain 

meaning of “corruptly” (even in a criminal statute) is “depraved, evil: 

perverted into a state of moral weakness or wickedness.” Id. at 15 

(quoting North, 910 F.2d at 881). But “unlawfully” means something 

else entirely. Acts may be evil or depraved and yet lawful. And acts 

may not be evil or depraved and yet be unlawful.
30

of one year, a criminal fine and six months, respectively. See 

Fischer, 64 F.4th at 380 (Katsas, J., dissenting).

Like Judge Katsas, I doubt whether, in enacting section 

1512(c)(2), the Congress intended to “supercharge a range of 

minor advocacy, lobbying, and protest offenses into 20-year 

felonies.” Id. Take 18 U.S.C. § 1507, the statute prohibiting 

protesting outside a courthouse with intent to influence a judge 

or juror. The Congress specifically provided that conviction

under that provision warranted no more than one year in prison. 

See 18 U.S.C. § 1507 (violators “shall be fined under this title 

or imprisoned not more than one year, or both”). The 

Congress’s policy choice would be nullified if the same person 

could be imprisoned for up to twenty years under section 

1512(c)(2) for engaging in precisely the same conduct. Yet that 

result is possible under the majority’s reading. An individual 

convicted under section 1507 could also be convicted under 

section 1512(c)(2) because anyone who protests outside a 

courthouse with the intent to influence a judge or juror 

necessarily intends to influence, obstruct or impede an official 

proceeding by unlawful means. Thus, although the majority’s

reading “create[s] an escape hatch for those who influence an 

official proceeding without committing any other crime,” it 

nevertheless “gives section 1512(c)(2) an improbably broad 

reach.” Fischer, 64 F.4th, at 380 (Katsas, J., dissenting).

The majority responds by imposing a limitation plucked 

from thin air. It suggests that the “unlawful-means” 

requirement is satisfied only when a defendant acts through 

“independently felonious means.” Maj. Op. 24–25. But as far 

as I can tell, no decision of any court has even suggested, much 

less held, that “corruptly” can bear such a meaning. And in any 

event, imposing a “felonious means” requirement fails to cure 

the remarkable overbreadth of section 1512(c)(2) as interpreted 

by the majority. Even with that limitation, the majority’s 
31

reading is difficult to reconcile with Chapter 73’s reticulated 

scheme of penalties. For example, 18 U.S.C. § 1506 sets forth 

a maximum penalty of five years’ imprisonment for feloniously 

stealing a record or other process used in a court proceeding. 

Under the majority’s interpretation of “corruptly,” it would be

impossible to violate section 1506 (aside from the separate 

prohibition on posting false bail) without also violating section 

1512(c)(2).

Moreover, defining “corruptly” to mean “acting through 

independently unlawful means” requires the jury to find

beyond a reasonable doubt that the defendant committed some 

other offense, aside from section 1512(c), in order to find him 

guilty of violating section 1512(c). The majority’s definition 

effectively requires proof of a predicate offense that is not 

listed in the statute, an atextual and baffling result. The 

majority fails to point to a single statute in which the Congress 

uses a mens rea term—much less this particular mens rea

term—to impose a similar requirement.16

The “unlawful purpose” facet of the majority’s definition 

is no less dubious. Defining “corruptly” to mean, in essence,

“acting with an independently unlawful purpose” does nothing

to limit the scope of section 1512(c)(2). What does it mean to

act with an independently unlawful purpose? See Maj. Op. 18.

Perhaps the majority means that the defendant must intend to 

violate a law other than section 1512(c)(2). But if so, the 

16

 The majority denies that its definition requires proof of a 

predicate offense because there are ways “to establish corrupt intent 

or conduct” other than “proof of independently felonious means.” 

Maj. Op. 23 n.4. But the majority has tethered the “core” meaning of 

“corruptly” to the defendant’s independently unlawful purpose or use 

of independently unlawful means, see id. at 21–22, requiring the jury 

to look for offenses outside the four corners of section 1512(c)(2) to 

assess what is independently unlawful.
32

defendant would always act “corruptly” so long as he also has 

a distinct illegal purpose—distinct from corruption, that is. If 

that reading is truly what the Congress intended in enacting 

section 1512(c)(2), sadly, Mark Twain had it right.

17

Unlike the majority’s definition of “corruptly,” the 

unlawful-benefit definition properly limits the scope of section 

1512(c)(2). The requirement that a defendant act with intent to 

obtain an unlawful benefit means section 1512(c)(2) will 

neither cover “large swaths of advocacy, lobbying, and 

protest,” Fischer, 64 F.4th at 380 (Katsas, J., dissenting), nor 

“supercharge a range of minor advocacy, lobbying, and protest 

offenses into 20-year felonies.” Id. Section 1512(c)(2) will 

apply only where a defendant intends to secure an unlawful 

benefit for himself or another and knows the benefit he seeks 

is unlawful. See Marinello, 138 S. Ct. at 1114 (Thomas, J., 

dissenting).

5. Rule of Lenity

If Fischer had not decided the meaning of “corruptly,” and 

if the remainder of the foregoing analysis left any doubt, I 

believe the rule of lenity tips the scales in Robertson’s favor.

The rule of lenity instructs courts that “ambiguities about the 

breadth of a criminal statute should be resolved in the 

defendant’s favor.” United States v. Davis, 139 S. Ct. 2319, 

2333 (2019). Or, as the rule is often expressed, “when choice 

has to be made between two readings of what conduct Congress 

has made a crime, it is appropriate, before we choose the 

harsher alternative, to require that Congress should have 

spoken in language that is clear and definite.” Dowling v. 

United States, 473 U.S. 207, 214 (1985) (quoting Williams v. 

United States, 458 U.S. 279, 290 (1982)). The Supreme Court 

17

 2 Albert Bigelow Paine, Mark Twain, A Biography 724 

(1912).
33

has frequently applied the rule of lenity in obstruction-ofjustice cases. See, e.g., Yates, 574 U.S. at 547–48 (plurality 

opinion); Arthur Andersen, 544 U.S. at 703–04; Aguilar, 515 

U.S. at 600; see also Fischer, 64 F.4th 382 (Katsas, J., 

dissenting) (“In the specific context of obstruction of justice, 

the Supreme Court repeatedly has emphasized the need for 

caution.”). I would follow the Supreme Court’s instruction.

C. DID ROBERTSON ACT “CORRUPTLY”?

Having concluded that “corruptly” is best read to require a 

defendant to act with the intent of obtaining an unlawful benefit 

for himself or another, I turn again to the facts of this case. The 

question, to reiterate, is whether a properly instructed juror 

could have found Robertson guilty under section 1512(c) 

beyond a reasonable doubt. Hillie, 14 F.4th at 682. The answer

is no. There is no evidence in the record suggesting Robertson 

obstructed the election certification proceeding in order to 

obtain an unlawful benefit for himself or someone else. In fact, 

the Government does not contend that any such evidence

exists.

In denying Robertson’s motion for judgment of acquittal, 

the district court isolated the following evidence to support the 

jury’s finding that Robertson acted “corruptly”: 

(1) communications Robertson made before and after the 

January 6th protest; (2) Robertson’s intent to use violence; 

(3) Robertson’s decision to carry a dangerous weapon—a large 

wooden stick—outside and inside the Capitol building; 

(4) Robertson’s admission that he entered and remained in the 

Capitol without lawful authority and engaged in disorderly 

conduct in a restricted area; (5) Fracker’s testimony that, when 

he and Robertson arrived at the Capitol building, MPD officers 

were “in trouble” and the crowd was “out of hand”; 

(6) Robertson impeded MPD officers as the officers marched
34

through the protesters and (7) Robertson banged his wooden 

stick while the protesters chanted in the Capitol Crypt. None of 

this evidence comes close to establishing at all—much less 

beyond a reasonable doubt—that Robertson acted with the 

intent to obtain an unlawful benefit for himself or another.18

I would vacate Robertson’s section 1512(c)(2) conviction

and remand for resentencing on the remaining counts. 

Accordingly, I respectfully dissent. 

18

 The “unlawful benefit” the defendant seeks must be financial, 

professional or exculpatory. See, e.g., Marinello, 138 S. Ct. at 1105 

(avoiding taxes); Aguilar, 515 U.S. at 595 (concealing wrongdoing 

through illegal disclosure of wiretap); North, 910 F.2d at 851 

(fabricating false testimony and destroying documents); see also 

Corruptly (def. 2), Black’s Law Dictionary (11th ed. 2019) 

(“corruptly usu[ally] indicates a wrongful desire for pecuniary gain 

or other advantage”). Acquittal is thus required if, as I view the 

evidence, Robertson merely intended to protest the outcome of the 

election or his (perceived) disenfranchisement or to make some other 

political point.

The majority mistakenly insists that my view conflicts with 

Judge Walker’s Fischer opinion. Maj. Op. 37–38. On the contrary, 

Judge Walker did not decide how broadly to construe the “unlawful 

benefit” requirement. He merely stated that he was “not so sure” that 

the sought-after benefit must be “financial, professional, or 

exculpatory.” Fischer, 15 64 F.4th at 356 n.5 (Walker, J., concurring 

in part) (citation omitted). And even if this panel agreed with Judge 

Walker’s suggestion that the office of the President “may” qualify as 

“a professional benefit,” see id., we would remain free to conclude 

that there was no evidence presented at trial to show that Robertson 

intended—either alone or collectively—to procure that benefit.