US, Department of Justice _Attomes Werk Proet / Mey-Contin- Materia} Protected tinder Fed-Rt-Gria-P-6} 1519 each reach conduct that Section 1512(€)(2) does not, the overt provides no reason to give Section 1512(¢)(2) an artificially limited construction. See Shaw, 137 S.C, at 469." 3, ‘The Legislative History of Section 1 ing Te “Given te straightforward statutory command” in Section 1512(¢X2), “ther is no reason to resort to legislative history.” United States v. Gonzales, 520 U.S. 1,6 (1997). In any event, the legislative history of Sostion 1512(6)(2) fs nota reason to impoce extratentual imitations om ie reach, (Congress enacted Section 1512(6)(2) s part the Sarbanes-Oxley Act of 2002, Pub. No. 107-204, Ti. X{, § 1102, 116 Stat. 807. The relevant section of the statute was entitled “Tampering with a Record or Otherwise Impeding an Official Proceeding." 116 Stat. 807 (emphasis added), ‘That tte indicates that Congress intended the two clauses to have independent ‘feet, Section 1512(6) was added asa floor amendment inthe Senate and explained as closing 3 certain “loophole” with respect to “document shredding.” See 148 Cong. Rec. S6S45 (lly 10, 2002) (Sen, Lot) iat $6549-6550 (Sen. Hatch). But those explanations do not limit the enacted text. See Piaston Coal Group v. Sebben, 488 U.S, 105, 115 (1988) (lt isnot the law that saute can have no effects which are not explicitly mentioned in its legislative history") see also Encino Motorears, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018) (“Even if Congress did not foresee all ofthe applications of the statute, tha is no reason not to give the statutory txt a fair reading”), ‘The floor statements thus eannot detract fom the meaning of the enacted text. See Barnhart ». Sigmon Coal Co, $34 US. 438, 457 (2002) (“Floor statements from two Senators cannot amend the clear and unambiguovs language ofa statute. We see no reason to give greater Weight to the views of two Senators than to the collective votes of both Houses, which are ‘memorialized in the unambiguous statutory text."). That prineiple has partiular force where one of the proponents of the amendment to Section 1512 introduced his remarks as only “briefly clahorifing] on some of the specific provisions contained inthis bil.” 148 Cong. Rec. $6550 (Sen, Hatch), Indeed, the language Congress used in Section 1512(6)2)-protibiting “eorruptly obstneifing],influeneing}, or impeding] any official proceeding” or atempting to do so— parallels a provision that Congress considered years earlier in bill designed to srengthen protections against witness tampering and obstruction of justice. While the earlier provision isnot 4 direct antezedent of Section 1512(€)@), Congress's understanding of the broad scope of the "68 The Supreme Couns decison in Marinella». United Stats, 138 S.Ct. 1101 (2018), doesnot support mmpsing a on-exta intation oa Section 1S12()2). Mariela interpreted the ax obstruction statue, 26 US. § 7212(), ro require "a ‘nexus’ between the defendant's conduct and patcuar ‘dminsrative procseding.” 7d. at 1109, The Court adoped that coastetion in light of the similar interpretation given o “aber obstreton provisions," i. (eking Agar and Arthur Andersen), 38 wells ‘onsiertions of eontet,lpsative history, rte ofthe criminal ax la, flr warning and lent. 11106-1108. The ype of "nexus element the Cour adopted in Marinella applies under Section 15122, andthe emalning considerations the Cou ited donot juny reading nto Seton 151202) language that snot there. See Rats» United States, $22 US. 23,29 1997) the Court “rail resists) reading words or elemens ino astute tat donot appear on its ace." 168Us. Department of Justice _Atomey-her Prot May Contin Mater Protete Under Fed Crim Pe) catlier provision is instructive, Recognizing that “the proper administration of justice may be impeded or thwarted” by a “variety of eorupt methods limited only by the imagination ofthe criminally inclined,” S, Rep. No. $32, 97h Cong, 2d Sess. 17-18 (1982), Congress considered a bill that would have amended Section 1512 by making i a crime, ier alfa, when a person “corruptly... influenoes obstructs, or impedes ...[Jhe enforcement and prosecution of federal law,” “administration ofa law under which an official proceeding is being or may be conducted,” cor the “exercise ofa Federal legislative power of inquiry.” Jd. at 17-19 (quoting S. 2420) “The Senate Comminee explained tha: {T)he purpose of preventing an obstruction of or miscasiage of justice cannot be fully catried out by a simple enumeration of the commonly prosecuted obstruction offenses. ‘There must also be protection against the rate type of conduct that isthe product ofthe inventive eriminal mind and which also thwarts justice. 1. a 18, The report gave examples of conduct “aetally prosecuted under the curent residual clause (in 18 U.S.C. § 1503}, which would probably not be covered inthis series [of provisions] Without a residual elause." Jd. One prominent example was “[a] conspiracy t0 cover up the ‘Watergate burglary and is aftermath by having the Central Intelligence Agency sek to interfere ‘an ongoing FBI investigation of the burglary.” 4d. (citing United Stars. Haldeman, 559 F.24 31 (D.C. Cir. 1976) The report therefore indiates a congressional awareness not only that residusl-clauce language resembling Section 1512(€)2) broadly covers a wide variety of obstructive conduct, but also that such language reaches the improper use of governmental processes to obstruct justce—specifically, the Watergate covers orchestrated by White House officials including the President himself, See Haldeman, $59 F.3d at S1, 86-87, 120-129, 162." 4, General Principles of Stastory Construction Do Not Suggest That Section 5174632) is Inapplicable tothe Conduct in this Investigation ‘The requirement of fur warning in criminal law, the interest in avolding due process ‘concems in potentially vague statutes, and the rule of lenty donot justify narrowing the reach of. Section 1512(c)(2)'s text" 1. As with other eriminal laws, the Supreme Court has “exercised restraint in interpreting obstruction-of justice provisions, both out of respect for Congress’ role in defining crimes and in the interest of providing individuals with “fair waning” of what a criminal statute prohibit. Marinello¥. Unied States, 138 S. Ct. 1101, 1106 (2018); Arthur Andersen, 544 U.S. at 703; TO The Scale ultimately acccped dhe Howse vervion ofthe bil, which excluded an ome lase, See United States» Poindester, 081 F.2d 369, 382-383 (D.C. Ci. 1991) (acing history of the Proposed omnibus provision in the witnese protection feesaton). During th leo debate onthe bl, Senator Heinz, one ofthe inate and primary hackers o te legislaton, explained tha the omnibus else ‘was beyond the scope of the witness protection measure wt ianbe and likely “duplicative” of oer bsruton avs, 128 Cong. Res, 26,810 (982) (Sen. Hein), peesumably refering to Sections 1503 and 10s, we tna separate ction adeesing consideration unique tothe presidency, we consider principles of statutory construction relevant in that context. See Volume Il, Section IB, ia 16sUS. Department of Justice -Asomey ork Brndust "hla Conteh Seeeiah tetra aber RCo Do hse| Aguilar, 515 VS, at 599-602. In several obstruction cases, the Court has imposed a nexus test that requires that the wrongful conduct targeted by the provision be sufficiently connected tan official proceeding to ensure the requisite culpability. Marinell, 1388. CL at 1109; Arthur Andersen, SU US. at 707-708; Aguilar, 51S US. at 600.602. Section 1512(¢)(2) has been interpreted t0 require a similar nexus. See, e., United States. Young, 916 F.3d 368, 386 (4th Cie. 2019); United States v, Perak, 781 F 3d 438, 445 (8h Cir. 2015); United Siaes v. Philips, 383 F.3d 1261, 1264 (10th Cit. 2009); United States v. Reich, 479 F.3d 179, 186 24 Cit. 2007). ‘To satisfy the nexus requirement, the government must show as an objective matter that a defendant acted “ina mariner tha ikely to obstruct justice," uh that the saute “excludes defendants who have an evil purpose but use means that would only unnaturally and improbably be successful” Aguilar, $15 US. at 601-602 (internal quotation marks omitted); see id. at $99 (the endeavor ‘must have the natural and probable effect of interfering with the due administration of justice”) (internal quotation marks omitted). "The government must also show as a subjective mater that, the actor “contemplated a particular, foreseeable proceeding.” Petruk, 781 F-3d a 445. Those requirements alleviate fairwarning concerns by ensuring that obstructive conduct has a close enough connection to existing or future proceedings to implicate the dangers targeted by the obstruction laws and that the individual actually has the obstructive result in mind, , Cours also seek to construe statutes to avoid du process vagueness concems. See, 6.8, MeDonnelly. United States, 136. Ct 2355, 2373 (2016); Skilling v. United States, $6| US. 358, 368, 402-404 (2010). Vagueness doctrine requires that a statute define a crime “with suicient ‘efiniteness that ordinary people can understand what conduc is prohibited and “in a manner that ddaes not encourage arbitrary and discriminatory enforcement.” 1d at 402-403 (intemal quotation ‘marks omitted). The obstruction statutes’ requirement of acting “corrupkly” satis that est. “Acting “corruptly” within the meaning of § 1512(6)2) means acting with an improper purpose and to engage in conduct knowingly and dishonesty withthe specific intent to subvert, lmpede or obstruct” the relevant proceeding. United States v. Gordon, 710 F.3d 1124, 1151 (Oth Cir. 2013) (some quotation marks omitted) The majority opinion in Aguilar did not addres the defendants vagueness challenge tothe word “corruptly,” $15 US. at 600.1, but Justice Sealia’s separate opinion did reach tht issue and Would have rejected the challenge, i at 616-617 (Seal 1, joined by Kennedy and Thomas, JJ, concurring in part and dissenting in part), “Statutory language need not be colloquial," Justice Scalia explained, and “the tem ‘eoruply” in criminal Jaws has a longstanding and wellaccepted meaning, Tt denotes an act done with an intent to give some advantage inconsistent with official duty and the rights of others." dat 616 (intemal ‘quotation marks omitted; citing lower court auhorty and legal dictionaries). Justice Scalia added that “in the context of obsirdcting jury proceedings, any claim of ignorance of wronadoing is incredible” Id, at 617. Lower courts have also rejected vagueness challenges to the word Soormupty.” Soe, eg, United States 9. Edwards, 869 F 3d 400, 301-502 (Hh Cir, 2017); Unit ‘States v, Bronson, 104 F.3d 1267, 1280-1281 (U1th Ci. 1997); United States v. Howard, $69.28 1331, 1336 n.9 (Sth Cit, 1978). This wellestablished intent standard precludes the eed to Timit the obstruction situs to only certain kinds of inherently wrongful conduct." "In Unled States». Pobuestar, 951 F.2d 369 (D.C. Ci. 1991, the cout of appeals fund the term “coruply” in 18 USC. § 1505 vague as applied to person who provide false infomation fo ‘Congress After suggesting tha the word “corruptly” was vague on is fe, 951 F.2d at 378, the cour 166