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April 16, 2024 - Viva & Barnes

02:27:12

Supreme Court Oral Arguments on Jan. 6 "Obstruction" Charges - Did They Go Too Far? Viva Frei Live

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	What's in Budget 2024?
	More infrastructure and less red tape so we can build more homes and build more affordable homes.
	A national school food program, serious investments in youth mental health, and contraceptives covered by a national pharmacare plan.
	We are driving productivity and creating good jobs by supercharging our innovation in AI.
	Bottom line, fairness for every generation.
	I'm going to play this again.
	Hold on.
	Stop, stop, stop, please.
	Sorry, hold on.
	Am I in the right mic?
	I'm going to play this again.
	I should make a little graph and just go bing, bing every time they mention a buzzword of verbal diarrhea.
	Hold on.
	Audio.
	No, we're in the good mic.
	Okay, hold on.
	Let's just go back.
	I don't know who...
	We have to start with a palate-cleansing laugh.
	This is Canadian government.
	I don't know who this woman is.
	We'll get her name in a second.
	What's in budget 2024?
	More infrastructure.
	Bing!
	Infrastructure.
	And less red tapes.
	Bing!
	Red tape.
	You can build more homes.
	Bing!
	Build more homes.
	2024.
	The Liberals campaigned off that in 2015.
	Infrastructure.
	Less red tape.
	Build more homes.
	Bing!
	And build more affordable homes.
	Bing!
	Build more affordable homes.
	No, you should build some unaffordable homes.
	That makes a whole hell of a lot of sense.
	A national school food program.
	A national food school program because one out of five Canadian children is going hungry thanks to the Liberals' eight years of power.
	Serious investments in youth mental health.
	Serious investments in youth mental health because the Liberal government has spent the last four years traumatizing adolescents.
	And contraceptives.
	Contraceptives.
	Because the population is not growing.
	Promote abortion and contraception.
	Covered by a national pharmacare plan.
	We are driving productivity.
	Driving productivity.
	And creating good jobs.
	Creating good jobs.
	By supercharging our innovation in AI.
	Supercharging our innovation in AI.
	This is not parody.
	This is not a Saturday Night Live skit, although it's on par with the quality of SNL these days.
	Bottom line?
	Bottom line.
	Fairness.
	Fairness?
	This is just diarrhea.
	This is just verbal diarrhea coming out of her mouth.
	And she looks crazy.
	I mean, it doesn't help that she looks crazy.
	Although, who am I to talk?
	Every generation.
	Oh, who is it?
	I know Rowan.
	The stallion is the one who posted.
	Lisa Hefner.
	Lisa Hefner.
	MP for Hamilton area.
	Parliamentary secretary.
	Lisa Hefner.
	Hefner?
	Hefner.
	Whatever.
	Oh my god.
	It's psychotic, delusional nonsense.
	Good morning, everybody.
	Feels like I haven't seen you in 12 hours.
	Hold on a second.
	I've got a tuft of hair.
	Why didn't anyone tell me about that?
	I got a dog on my lap.
	He's keeping me very warm.
	He got back from the place where they bored dogs, and he got a little cut, and he smells so good.
	And then, hold on, let's just stare into the camera so people can see your eyes now.
	Hold on.
	Just go like that.
	There you go.
	Okay.
	Look at the dog.
	No, wait.
	This way.
	He looks so angry.
	Like, I am the Winston.
	I am the king of the universe.
	Okay, down you go.
	Jesus.
	First of all, could you possibly STF you and let us listen without interrupting every word?
	No.
	Thank you for the input, however.
	You want to go watch that video without interruption?
	Go to Rowan Thee Stallion's Twitter feed and go listen to that verbal diarrhea uninterrupted, although I did play it uninterrupted before the thing got started.
	So yeah, thank you for the input, and I'm being tongue-in-cheek, as I presume you were, and if you were being serious, take yourself less seriously.
	Okay, today, hold on, I bit my lip on the inside yesterday, and it's still hurting, and now I keep, like, biting it.
	I'm gonna get in the backdrop.
	The oral arguments thing, so I can hear it when it comes up.
	It's oral argument in the obstruction, well, the contestation of the obstruction proceedings.
	The contestation of the obstruction charges brought against 330 of the January 6th defendants.
	It's going to be very interesting because we've been talking about this for a while.
	The obstruction charges, which were Enron-era legislation charges that had to do with obstructing official proceedings via destruction of evidence, have been imposed, levied, applied against the January 6th defendants on the basis that they were obstructing Congress by protesting.
	Or that by and through their protest, violent or not, however you want to call it, although I will not call it insurrection, and if you call it insurrection, you're an idiot, by and through their protest, they obstructed Congress.
	And that's how they were broadly applying this provision of law.
	The oral arguments are here today.
	I got my footstool because my chair is elevated and I need to rest my feet on something.
	So the oral arguments are today.
	Yeah, well, Sherry Super, I didn't know that the oral arguments were today.
	Well, I found out yesterday and I was like, well.
	We've got to do this.
	So that's what's on the menu for SCOTUS today.
	And it's going to be interesting because we're going to hear, presumably, a lot of arguments or pleading about the history of the statute because that's kind of relevant when interpreting a statute.
	Why was it enacted?
	Why is it drafted the way it is?
	Why does it say obstruction such as destruction of evidence, yada, yada, yada?
	And then it can include anything and everything like blocking someone's car from getting into their parking spot, obstruction of Congress.
	So that's what's going to happen at 10 o 'clock, give or take.
	Now I've got the thing in the backdrop here.
	Let me just bring it up so that I can see this.
	I want to share the screen for a couple more reasons because other stuff is going on.
	And other people out there, tell me if you know that this is on and I'm not bringing it up because I got it in the back.
	What was I going to say?
	So that's what I'm going to say.
	I'll read an article just to summarize what is before the Supreme Court today.
	But there was something that someone brought up yesterday to my attention.
	That Jake Lang, the man who I interviewed a week and a half ago from prison, or not prison, from jail in New York.
	Someone said, Viva, did you hear that Jake is back in solitary?
	And I was like, I hadn't heard that.
	And so I DM'd the Twitter account and got this and said, yeah, we posted an update and here's the update.
	And this is, take it for what it's worth, people.
	Everyone's entered the realm of doubt everything, believe nothing.
	And that's part of the information destruction You know, possible tactic being employed by the powers that be, but this is the update from Jake Lang, January 6th political prisoner, from his Twitter feed.
	Emergency update.
	The federal prison in Brooklyn, New York, is committing retaliatory torture against Jake for exercising his First Amendment rights.
	We are extremely worried about Jake's safety and well-being.
	The Brooklyn Metropolitan Detention Center is absolutely horrific, disgusting, and should be demolished.
	I'm not going to bring those up.
	Example one and two.
	Jake made his statements to his lawyers today.
	It is the first time we have heard from him in a week.
	So people were saying that this was a retaliatory action as a result of the...
	I'm not trying to be arrogant or anything.
	People were saying it's because...
	It followed the interview that he gave with me, apparently.
	I hadn't heard this.
	And I guess we hadn't heard it because if you go into solitary or you go into wherever the hell they throw you into this hole at this prison or jail...
	Nobody's going to find out about it for a little while.
	So I didn't know this until now.
	This is the first time they've heard from him from last week.
	This is from Jake.
	Quote, I am suffering by far the worst conditions I've ever been in.
	Worst conditions known to man.
	I've been held for a week without a change of clothes, without access to phone calls, without access to a towel hygiene products, without access to a pencil or piece of paper to write a letter, and I'm stuck in a bleak, dirty, featureless dungeon-like cell 23 hours a day with a light in the cell that never turns off.
	The one hour a day I'm given to leave myself through Monday through Friday is a 15 by 15 birdcage to stand in, which you are separated from other inmates and any human interaction.
	The environment I am in is so devoid of stimulation.
	The days and nights melt together.
	We don't have books.
	We don't have a radio.
	We don't have access to our family.
	We don't have what time it is.
	And the guards completely ignore every request of ours.
	This is hell on earth.
	I come to you.
	Not in the spirit of defeat, nor am I downtrodden by my enemy's attempt to break me.
	But these clear, evident human rights abuses at the hands of the Biden DOJ need to be exposed and immediately stopped.
	They have threatened to strip me naked and keep me in a cell in a painter's paper zip-up suit.
	For asking for grievance paperwork, legal calls, and religious services.
	The diet they force upon you is wholly insufficient and leaves you starving every day before nightfall.
	We are served our last meal at 4pm with 15 minutes to eat before they pound on our door to take our tray away.
	I am denied commissary, so I am left hungry for the rest of the day.
	Without the love of God, I would be in the most hopeless situation I could ever imagine any human being surviving under.
	Every semblance of human dignity has stripped I'll be survived if they don't kill me.
	Do not be in fear because God is still in control.
	Jake is in pretrial detainee.
	He's been stripped of his rights for refusing to be silent and refusing to be left to rot away.
	Please call MDC Brooklyn and demand Jake's release from solitary confinement.
	You got the number there, MDC Brooklyn, 718-840-4200.
	Please call your representative to bring attention to the travesties taking place.
	Edward Lang, inmate number 76480.
	So there's that.
	Here's the link to the tweet.
	Link to tweet.
	So that's what's happening with Jake.
	I'm refreshing the Supreme Court live oral argument to see when it comes up.
	Why is it not playing?
	April 16, oral arguments.
	I'm refreshing.
	I press play.
	Okay.
	So let me just bring this up here.
	Make sure I'm not doing anything wrong.
	This is it.
	And what time is it?
	It's 10.06.
	Okay, we're going to try to get...
	I'll leave this here for a second.
	I've just refreshed it.
	So hopefully...
	Okay, there's that.
	So my audio is fine.
	Anybody in the chat, if you hear it...
	Let me know.
	And if I'm on the wrong channel, let me know.
	I'm going to take it out of the screen.
	So that's what's going on with Jake.
	Typical single man cell in a lockdown unit.
	If he did the interview in violation of regulations, this is what would have happened.
	I do not support him or January 6th people being in jail, but this is drama.
	Well, I disagree.
	I mean, Avenatti is giving jail cell interviews.
	When I did the interview with him and my first question was, how the heck are you allowed to do?
	Interviews, podcasts, because I'm by no means the first that he's ever done it with.
	Apparently, if you can buy a cell phone, you can buy Axis, you can do them.
	Avenatti gave an interview on MSNBC.
	Who's the guy that he gave the interview with?
	Ari something or other.
	So there's that.
	Sorry, I got ahead of myself.
	In fact, we didn't even double check that we're live across all platforms.
	We are live on Rumble.
	We are.
	Looks good.
	Hold on.
	Refresh.
	That's my face right there.
	No, hold on one second.
	Refresh.
	Okay.
	Now I'm seeing an ad for a drone.
	Okay, good.
	We look like we're live on Rumble and we are.
	Good.
	Are we live on vivabarneslaw.locals.com?
	We are Bureau of Prisons, says Joe Maskew for BOP.
	The court is not live yet, says Dreary or Spider.
	That's in our vivabarneslaw.locals.com community.
	Okay, and while the court goes live, I'll just, while we have time right now and not to get too far behind, Crash Bandit says, how do these actions from our governments not make people crazy?
	Or is this how the FBI performs a nudge?
	A little bit of A and a little bit of B. Some people do not get outraged.
	And this is how they nudge people into...
	Provoking responses that they can then use to warrant further egregious government overreach.
	Absolutely.
	Abraham P says, Lisa is heifer.
	And then Abraham P says, is there a local stream or is it just not loading or refreshing for me?
	Let me go.
	Locals looks like it's good.
	We got...
	They arrested Trump.
	They arrested Trump's lawyers.
	They arrested Trump's advisors.
	They arrested Trump's supporters.
	They arrested Trump's chief of staff.
	They arrested Trump's chief strategist.
	They arrested Trump's security advisor.
	That is a meme coming from lying in state.
	And Zvi Hansis says, locals working great.
	Okay, good.
	So now I'm going to take this out, bring back in the backdrop the SCOTUS live oral, and take it out.
	I'll just refresh.
	So this is what's happening today.
	I'm going to...
	Keep playing that in the backdrop.
	Okay.
	Let's read a little bit of article from how the MSNBC, the MSM News is covering the story and I will make my prediction before the hearing and I will make my prediction after the hearing.
	This is from CBS News.
	Now, why am I bringing it up?
	Because they're filthy propagandists.
	I'm bringing it up because they're filthy propagandists and when they have to cover something and their reporting is almost If it's favorable to what is my prediction as to how SCOTUS is going to rule, then you know that's how bad it is.
	So, how are they reporting it?
	Supreme Court considers the scope of federal obstruction law used to prosecute Trump.
	Trump and January 6th reporters.
	Washington.
	Supreme Court is set to weigh on the scope of a federal obstruction statute used to prosecute hundreds of people who breached the Capitol, yada, yada, yada.
	Legal ramifications that could have ramifications for election interference for Trump's case.
	Fine.
	At the crux of the fight.
	Fisher v.
	U.S. is the one who brought it.
	Whether federal prosecutors can apply a law passed in the wake of the Enron scandal to January 6 assault.
	That framing already leads me to believe that there's a big problem with how that statute's been applied.
	We know why it was applied in the context of Enron.
	The fact that they have to contextualize it with that unfavorable historical contextualizing leads me to believe that even MSM knows that this is a bridge too far and a load of crap.
	The measure makes it a crime to, quote, corruptly, end quote, obstruct or impede an official proceeding, and defense attorneys argue that the Justice Department has stretched the statute too far.
	Why?
	The first provision of the law prohibits altering, destroying, mutilating, or concealing a document, i.e., evidence...
	23, we're hearing arguments.
	Here, boom, shakalak.
	Let's do this.
	Mr. Chief Justice, and may it please the court.
	Please, please the court.
	The Congress enacted 1512C in 2002 in the wake of the large-scale destruction of Enron's financial documents.
	The statute therefore prohibits the impairment of the integrity or availability of information and evidence to be used in a proceeding.
	In 2002, Congress hedged a little bit and added Section C2 to cover Mm-hmm.
	The catch-all, otherwise impedes.
	Into a catch-all.
	Ooh, I like it.
	Ooh, I like it.
	Our construction of this statute at least leaves C1 and C2 to do some independent work.
	From Cashall to Dragnet, that's good.
	The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct.
	A Sarbanes-Oxley-based, Enron-driven, evidence-tampering statute is not one of them.
	I welcome the court's questions.
	What?
	That's it?
	Mr. Green, how do we determine what these two provisions have in common?
	Sounds like Clarence Thomas.
	How do we look after the otherwise or before and why?
	You look at before, Justice Thomas, and you look at the kinds of manner in which documents and records are to be impaired, and then you look after to see what the effect is.
	But I would submit that the effect is the same.
	It has to be evidence tampering.
	The impairment of the integrity of the evidence that's to be used in a proceeding or to prevent its availability.
	So we look back and we look forward.
	Wouldn't it be just as easy to look at the C2 and then ask what it has in common with C1 and use C2's provisions as a basis of that similarity?
	No, because C2 speaks to the effect of the actions that the otherwise clause covers.
	So, in other words, we look at C1 and we see that Congress is concerned about documents and records and other objects and things that are done to those to impair the integrity of those.
	And the effect of that is to obstruct.
	And so C2 omits that object and verb.
	But you could just as easily say that Congress is really concerned about things that obstruct, influence, or impede official proceedings.
	And that's C2.
	So why isn't that the basis for the similarity?
	Well, because of the presence of the otherwise provision.
	So otherwise, as I mentioned, otherwise, this court has said, means to do similar conduct in a different way.
	So what we've got here is the impairment of evidence being done in a different way.
	I'm sorry.
	I thought it was, yes, doing it in a different way.
	Such as preventing people from convening?
	is a sign on the theater.
	Here's an example.
	You will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance.
	If you start yelling, I think no one would question that you can be expected to be kicked out under this policy, even though yelling has nothing to do with photograph or recording.
	The object that the verb is looking at...
	The verbs are looking at is the obstruction.
	It's not the manner in which you obstruct.
	It's the fact that you've obstructed.
	Isn't that the structure of this provision?
	It is, Your Honor.
	It's in part the structure of the provision.
	But what your hypothetical omits is that there is a specific retriculation, I guess it's called, of all of the different sorts of things that might be done to evidence to begin with.
	Except that what's fascinating about one, which is not about two, is that one doesn't require you to have actually impeded.
	The proceeding.
	One requires you to have that intent, but you don't actually have to accomplish the intent.
	Two requires you to accomplish the intent.
	And so that's a very different articulation of what the object of two is.
	The object of two is the actual disruption of the proceeding.
	Well, I respectfully disagree because...
	Well, why?
	Look at the language.
	Well, let him answer that.
	...mutilates or conceals a record.
	I do that in my home.
	And I do it anticipating that it might be needed.
	All I have to do is have the intent to impair.
	By that very language, I don't have to have an actual proceeding that I've impaired.
	On two, you need an actual proceeding to impair.
	I guess I'm a little confused, Justice Sotomayor, because as I read this, I would think that the government would say that any attempt at one is also covered by the statute, and I'm not sure that I would disagree.
	So I don't think that there has to be an actual impairment.
	No, I do think under one, you don't need an actual impairment.
	Under two, you do.
	If you read it, the verb requires you to actually obstruct the proceeding in two.
	Nowhere in one do you actually have to obstruct.
	Well, in two, you only have to attempt to do the things that are in two.
	No, otherwise obstructs or impedes, or attempts to, yes.
	Counsel, can I ask you whether, let's imagine that we agree with you.
	On remand, do you agree that the government could take a shot at proving that your client actually did try to interfere with or under C1, or actually, no, sorry, under C2, obstruct evidence because he was trying to obstruct the arrival of the certificates arriving to the vice president's desk for counting?
	So there would be an evidence impairment theory?
	I'm quite sure that my friend would take a shot, Your Honor, but I would say no.
	And the reason why is that this statute prohibits operation on specific evidence in some way, shape or form.
	Attempting He's departing from the historical purpose of the act of this legislation.
	Well, he's obstructing evidence in my hypothetical.
	I mean, he's not actually altering the vote certificates, which is why I corrected myself and said under C2.
	I mean, would that be different than someone, say, in a trial or criminal proceeding trying to prevent evidence that was going to be introduced in the proceeding from making it there?
	So I'm imagining him acting on the certificates, not the...
	Is this Amy Coney that we're listening to?
	We're talking about trying to impair just anything other than the evidence itself.
	We're trying to obstruct a proceeding.
	And there's questions about what proceeding means here, as Your Honor doubtless knows.
	The government would essentially be doing, as you noted, is converting what they've charged in C2 to a C1 type of crime.
	No, no, no, no.
	C2, I mean, maybe I'm misunderstanding your argument, but I thought your argument was that C2 has to deal with destruction.
	Other things, but they just have to be evidence-related.
	Other means of destruction of evidence.
	So, in the hypothetical I'm giving you, it's evidence-related because it's focused on the certificates, but it's obstruct.
	Obstruct or impede, say.
	The certificates arriving to the vice president's desk insofar as the goal is to shut down the proceeding and therefore interfere with the evidence reaching the vice president.
	That's closer.
	It's definitely closer.
	But if you zoom out and look at all of 1512 in order to understand what kinds of impairment we're talking about, we are talking about or Congress is prohibiting the kinds of impairments that actually change documents that actually affect their integrity.
	If it's just impeding or delaying, we'd submit actually that that is not part of 1512C.
	Delays are mentioned.
	In five other parts of 1512, but not in C. Mr. Green, if Justice Barrett is wrong, then what work is C2 doing?
	I mean, it seems like you've just now re-articulated only the theory of C2 says, otherwise obstructs, influences, or impedes any official proceeding.
	You have to make it into C1 in order to have this statute apply.
	So can you help me at least understand, under your theory, what additional thing does C2 offer?
	Let's look at the verbs of C1, which are alter, destroy, mutilate, conceal.
	And let's think about their antonyms.
	So one, instead of destroy, would be actually to create.
	So one could use some sophisticated computer program.
	This is an interesting argument.
	And we've heard about the possibility of deep fake photographs.
	So I think you would violate C2 if you created a photograph that established your alibi in some extremely sophisticated way.
	They're going to ask them why would C2 not be incorporated in C1 if it were part and parcel of the same thing.
	So you're saying there are other things other than particularly altering, destroying, mutilating, or concealing, but it has to be limited to a record?
	Not necessarily, because, I mean, one other example, if I might, Your Honor, would be not to conceal, but to disclose.
	So if I disclosed a witness list in a large multi-defendant drug trial...
	That's a good example.
	...my purpose in doing that, though I haven't altered the document...
	Would be to intimidate the witnesses or prevent their...
	And how about if you protest it on the front lawn?
	Our submission would also violate...
	Can I just ask you one other question just so that I can fully understand your theory?
	You keep using the term evidence and that does not appear in the statute.
	The statute C1...
	It says record or document.
	That's what it means.
	...document or other object.
	Now I appreciate that...
	Evidence can be such a thing, but you can imagine a world in which those two are different.
	So where does evidence come in, in your theory, and why is it there?
	Well, the title of the statute refers to tampering of witnesses, victims, and informants.
	But along with witnesses, victims, and informants comes evidence that they provide, whether in the form of testimony or whether in the form of doctrine.
	I understand, but the statute, the provision we're talking about here does not use the term evidence.
	And so instead, or in addition, it uses the term official proceeding, which is elsewhere defined, not in terms of court proceedings or investigations.
	It's just a proceeding before Congress.
	So is it your argument that the only thing that this provision covers Record.
	investigation record document or other object it is your honor and we're not limiting in our our position does not limit it to documents or records um i would submit c1 which we say carries into c2 through the otherwise caused He's having problems.
	And it need not be as 1512F provides.
	It need not be admissible.
	So it could cover things like electronic records.
	It could cover communications.
	It could cover emails.
	It could cover all kinds of...
	Things that we think get used by fact-finders in a formally convened hearing.
	I mean, just to take you back to...
	Just a quick question.
	What about the Second Circuit's decision in U.S. v.
	Reich where what was involved was not evidence.
	It was a forged court order.
	Would that fall within C2?
	Oh, for sure.
	That's a document.
	Yes, we think that does fall within C2.
	And I think anything that is...
	Falsified in this operative way that is used to obstruct a proceeding would be covered by C2.
	Mark, thank you.
	Just to take you back to the question that Justice Thomas started you with, it seems to be there are two choices here, and you could read this as otherwise...
	obstructs a proceeding or otherwise spoils evidence.
	And you are using it to say, otherwise spoils evidence and that spoils being all those verbs but it doesn't say that it says otherwise obstructs a proceeding there are plenty of ways to write the statutes that you um want to You could just say otherwise obstructs, influences, or impedes any official proceeding.
	You could combine official proceeding with evidence in other ways.
	You know, one with you could replicate the mens rea that C1 has.
	I mean, there are ways in which C2, multiple ways in which the drafters of C2 could have made it clear that they intended C2 to also operate only in the sphere of evidence spoliation.
	It doesn't do that.
	All it says is otherwise obstructs, influences, or impedes.
	Certainly, the statute could be written more precisely.
	Any statute could be written more precisely.
	That might be part of the problem.
	It's not a question of precisely.
	The question is, what is this otherwise?
	This is what Justice Thomas said at the beginning.
	What is this otherwise taking?
	From C1.
	Of course there's commonality that's involved in an otherwise.
	There's both commonality and difference.
	But what is the commonality that C2 is drawing from C1?
	It tells you what the commonality is.
	The commonality is that the things that fall into C2 also have to obstruct, influence, or impede.
	But what C2 does not say...
	Is that it only relates to documents.
	I would have one answer to all of this.
	The statute tells you what the effect is.
	The conduct that's specified in C1 is altering, destroying, mutilating or concealing a document, a record or other object.
	And so a drafter of the statute could easily Omid something like that and would omit something like that for the sake of economy and also to hedge.
	Because we know that what comes before might not be exactly the same as after.
	So we're not going to repeat what we said there, but we're going to use a connector like otherwise to demonstrate that we're talking about similar conduct.
	But then why not include it in the same provision?
	That is...
	Please.
	What's your best case for this, like, going backward and trying to find language that does not appear in the otherwise provision and trying to incorporate it into the otherwise provision?
	Well, I think Begay is our best case for sure.
	And that's not a very good advertisement, I would think.
	I mean, what Begay does is exactly that.
	So you have a very good case there.
	And it was a complete failure.
	You know, Begay said, we look back...
	At this thing that Congress did not use in the otherwise provision, and we derived various things from it, and we put it in.
	It was purposeful, violent, and aggressive.
	And then a few years later, we said, where did that come from?
	We made it up, and we get rid of the whole thing.
	So that's not a great advertisement for rewriting a statute to...
	This is not going well for this lawyer.
	We would submit that Begay was abrogated on other grounds, Your Honor.
	And the other grounds are the members of the court could not decide between an assessment of the types of things that came before otherwise versus the level of risk.
	And when that began to play out in complicated cases like Chambers and many others involving escape from a halfway house, it became, and the court said, an untenable proposition to figure out what a...
	potential harm to another person might be looking at what came before I don't understand what you just said there.
	I'm sorry, Mr. Green, go ahead and finish your sentence.
	Yeah, but that doesn't mean that the court's holding about how to construe a statute and its significant holding about otherwise was abrogated in and of itself as a result of the cases that came after Begay.
	Well, I'm not a fan of Begay.
	Some of us perceived at that time that they're...
	Or problems, different problems with what the court did there.
	But I think there's a point in the colloquy that you've been having.
	The specific types of conduct that are enumerated in one.
	Alter, destroy, mutilate, conceal a record document.
	Or otherwise.
	Had it been one provision, how would they read it?
	One, they all involve documents or objects.
	and they also all involve the impairment of the object's integrity or availability for use in an official proceeding.
	So, the similarity could be either of those things.
	And so, I think that you may be biting off more than you can chew by suggesting, if you are indeed suggesting, that the otherwise clause can only be read the way you read it.
	One might say it can certainly be read the way the government reads it, and that might even be the more straightforward reading.
	But it is also possible to read a clause like this.
	Why hasn't he gotten into the history of the provision?
	Judge Katz has provided an example of that in his opinion.
	If you had a statute that says anyone who kills or injures or assaults someone or otherwise causes...
	A serious injury commits a crime.
	You wouldn't think that that applies to defamation.
	So it could be read your way.
	So then I think you have to go on to some other arguments and explain why.
	your reading is better than the government's reading.
	Because it's part and parcel of the same provision and historical interpretation.
	There are plenty of other reasons why our reading is the better reason.
	And I'm not going to contest or bite up more than I can chew and say that the government's reading of C2 is implausible.
	We think it's unsound, but it's unsound for the additional reasons that if one zooms out and looks at what the prohibited conduct is in 1512, generally, we are talking about interference or operation on forms of evidence and testimony that obstruct That's what 12 is all about generally.
	And I would submit your honor, too, that, as the briefing indicates, Eus Gemma Generis and Nosotero Socius, those two venerated Latin canons, also operate in our favor here, as well as the broader context of Chapter 73 and Section 15. All of these things are about doing things that...
	The title of the section is Tampering with a Witness, Victim or an Informant.
	1512 and 1512C zero in on witnesses.
	Well, you have other arguments.
	You have surplusage arguments.
	You have arguments about the breadth of the government's reading of the provision.
	Do you want to say anything about those?
	Well, this guy's helping them out because the lawyer's not helping himself here.
	With respect to surplusage, Your Honor, I would refer to Judge Katz's opinion, as you did, in particular in the joint appendix at page 88, which lists out all of the different provisions in section 1512.
	15 of the 21 would be subsumed by the government's reading of C2.
	The government's reading of C2, I remind the court, is so broad that it would cover anyone who does something understanding that what they're doing is wrong in some way, that in any way influence impedes or obstructs an official procedure.
	Has he not mentioned the word Enron?
	There's a good case that this provision, everybody knew it was going to be superfluous because it was a provision that was meant to function as a backstop.
	It was a later enacted provision.
	Congress had all these statutes all over the place.
	Yeah, and this was a drag then.
	What Enron convinced them of was that there were gaps in these statutes.
	And they tried to fill the gaps.
	They tried to fill the particular gap that they found out about in Enron.
	And then they said, you know, this is a lesson to us.
	There are probably other gaps in this statute.
	But they didn't know exactly what those gaps were.
	So they said, let's have a backstop provision.
	And this is their backstop provision.
	And of course, in that circumstance, I mean, superfluity is very often a good argument when it comes to statutory interpretation.
	But it's not a good argument when Congress is specifically devising a backstop provision to fill gaps that might exist.
	Backstop, fill gaps, catch all, dragnet, stay it.
	But they think that they probably do exist.
	Which judge is this again?
	In the pre-existing statutory provision.
	Is this Sotomayor or Kagan?
	reading of Yeats, both the majority opinion and the dissenting opinion, demonstrates that this court thought that 1519 was the backstop.
	That was supposed to be the omnibus provision, and the court was fighting over what the meaning of tangible object was in 1519.
	But that was meant to plug the whole Counsel, I have such a hard time with the superfluidity argument because this entire obstruction section is superfluidity.
	There isn't one provision you can point to.
	You just said it.
	You can point to 1512 and you have 1519, which says destruction of evidence.
	How are they different?
	They're really not.
	You can point to any series, any provision and point to superfluidity in this section, 1512 and otherwise.
	So we go back to Justice Kagan's position, which is what you don't have is a freestanding, otherwise The backstop is anything.
	A tweet.
	It's an awfully odd place to put it, isn't it?
	I mean, in a subsection of a subsection in the middle back of the statute to include a preventative.
	You're not supposed to fight with the judges.
	They wanted to cover every base.
	And they didn't do it in a logical way, but they managed to cover every base.
	Every base.
	I think you can reconcile.
	I mean, again, that's what the court said about 1519 in Yates.
	And I don't understand how it is that the government can come before you today and say we need yet another catch-all, yet another omnibus crime.
	Because that's how they drafted it.
	We didn't get what we wanted.
	In Section 15, so now we'll go to 1512C2 and see if we can expand that in this way to cover something that it has never covered before.
	Thank you, Counsel.
	Justice Thomas, Justice Alito, Justice Alito.
	We've never had a situation before.
	Oh, like this insurrection.
	Where there's been a situation like this with people attempting to stop a proceeding.
	Oh, really?
	Kavanaugh hearings?
	Dummy?
	Didn't have that.
	Oh, is she an idiot?
	I'm sorry.
	That's true.
	I'd point to the Hatfield Courthouse problems in Portland, Oregon.
	Point to Kavanaugh hearings.
	Obstruction.
	Holy cows.
	It's easy to think on your feet when you're not there, people.
	In Bond, in Yates, in Kelly, all of these cases.
	But there was a difference in the use of words.
	Here, otherwise, obstructs, influences, and repeat.
	Might have a problem with breath, and the government can address that.
	But it's not unclear what those words mean.
	But the government has no way to address its problem with breath.
	Well, now he's changing his arguments.
	That didn't go well.
	uh whoever corruptly obstructs influences or impedes c2 without the word otherwise that were the whole provision do you acknowledge that the language would then be applied properly to a situation like this unfortunately no and the reason for that is that again applying all the other canons And applying the whole text canon and zooming out and looking at 1512,
	we would submit that C2 should still be read in the way we have suggested that it be read as something that...
	Is an evidence impairment statute.
	Or a witness tempering statute.
	I think also, as I mentioned, the Latin canons, the surplusage problem that C2 would create, all of those would still obtain if it sat there by itself without the otherwise.
	The otherwise is the icing on the cake.
	And finally, Justice Kavanaugh, I would mention that, as I mentioned to Justice Barrett, there's an issue.
	Let me just, if you didn't have C1, just had C2.
	Without the otherwise, I'm not sure I was clear on that.
	Oh, okay.
	Well, in that case, I think it gets even harder, but I would still say if we look at what 1512 is about, and if we look at this court's cases on broad, plausible, but broad readings of criminal statutes.
	Well, he's got two arguments.
	Overbreath, overbroad, versus misapplied.
	We would still say that C2 doesn't perform the massive...
	Dragnet function that the government submits.
	Thank you.
	Two different arguments there, and it's confounding.
	I have a question about the phrase in C1, the specific intent.
	Do you agree it's specific intent with the intent to impair the object's integrity?
	Okay.
	What is your view about how that parenthetical applies to C2, if at all?
	Do you think that that intent requirement carries over?
	The corruptly intent requirement?
	Not corruptly.
	This is Amy Coney, I believe, as well.
	Yes, we do, Your Honor.
	So it carries over.
	And we say that's the object of the overarching mens rea.
	But how can that be?
	I mean, it seems like that, you know, C2 would read awfully oddly then.
	would be otherwise obstructs influences or impedes any official proceeding with the intent to impair the objects integrity or availability for use in an official proceeding that would be your position of how it would read Well, I think that's right.
	I mean, it's awkward.
	I mean, there's no doubt that it's an awkward statute.
	But if you do the operation that I talked about earlier, which is we're just going to use otherwise to replace the verbs and the nouns in C1, then the statute...
	His retort should be what use is C1 if C2 is a catch-all.
	Why you didn't put C1 in?
	...is a specific form of intent.
	The corruptly, which has been construed to be the mens rea up there, is not different than, at least on this reading, or on the accepted reading by the DC Circuit right now, is not different than some form of specific intent.
	So corruptly is redundant?
	It seems like it's getting to be, yes.
	That's true, and our submission is that corruptly should mean something different.
	So should proceeding.
	That's how you marry 1512 with 1519.
	Justice Jackson.
	So I'm just still wondering if your theory about this provision might be too narrow in a sense because you've got evidence going.
	It's foliation in a sense.
	What I'm trying to work out in my mind is whether you would still have a decent argument if this 1512 language I didn't understand a word you just said.
	You had me.
	You lost me.
	C1 is an example of, you know, the corrupt tampering with certain things.
	And C2 brought...
	What do you think about that?
	Well, I think that's a correct reading, Your Honor.
	I mean, as 1512 As 1512F demonstrates, 1512F we would submit actually supports our position because it says the evidence need not be admissible or free of a privilege claim.
	Now what would that mean about what the statute of addressing if it's not evidence?
	That C2 has been applied, and occasionally C1 has been applied...
	In a non-evidentiary way.
	Yeah, to things that could become evidence, to the efforts to shape someone's...
	This is all too confusing, and if it's too confusing, it's lost.
	Let me ask you about the question that Justice Barrett asked before.
	You know, you suggested that it has to be to the document, but...
	Related to.
	The activity has to be actually to the document, but I don't know why that's the case under C2.
	Justice Alito says, well, one of the commonalities between C1 and C2 could be the impairment of the object's integrity or availability.
	Justice Barrett posits a scenario in which you have someone who is impairing the availability by doing something to prevent the object from getting to.
	Why wouldn't that count under C2?
	So this is preventing Congress from counting the electoral votes, for example.
	What purpose would C1 function if C2 means what they say it means?
	impair or prevent that from happening.
	Why isn't that what C2 could cover?
	Well, first, it's not affecting the integrity of the document, Your Honor.
	Availability is also in the statute.
	Availability, it says, too.
	But as I mentioned earlier, simply delaying the arrival of evidence at the courthouse.
	So not delay.
	Let's say the person steals the envelope and takes it away.
	Then it gets harder.
	I agree.
	They steal the envelope.
	They take it away.
	They rip up all of those things.
	That's destruction.
	That's quite clear.
	It's not in the indictment.
	The ballots or the vote count is not even in the indictment.
	But we wouldn't have to decide that.
	We could send it back if we clarified that that is what the statute means.
	I'm trying to understand if you agree that that's what the statute could mean.
	No, I don't agree that that's what the statute could mean.
	Why not?
	The reason is that if you look at 1512, it is about a direct effect.
	Or in some senses, an indirect effect, but in a limited way, on...
	Evidence that's to be used in a proceeding, right?
	And proceeding, as I mentioned earlier...
	So as to limit its availability.
	So what I'm suggesting is in C2, if you're doing something to limit its availability, why doesn't it count?
	Because we're limiting the availability of its use by a fact finder in a proceeding.
	Again, that's the way to marry 1519, which covers all kinds of investigations and all kinds of other events with 1512.
	I can hear Barnes yelling at this guy now.
	Drop bombs, lawyer.
	You want to criminalize what they did for Kavanaugh?
	You want to criminalize what they did in Tennessee?
	Thank you, counsel.
	Not good.
	That did not go well.
	Channeling Will Ferrell here.
	How'd that go?
	Mr. Chief Justice, and may it please the court, on January 6th, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power.
	Many crimes occurred that day, but in plain English, the fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election.
	That's a lie, but it doesn't matter.
	That is, they obstructed Congress's work in that official proceeding.
	Sounds like an AI robot.
	Yes, he obstructed that official proceeding.
	Unambiguously.
	The captioner doesn't really argue that his actions fall outside the plain meaning of what it is to obstruct.
	Instead, he asked this court to impose an atextual limit on the actus reus.
	In his view, because Section 1512C1 covers tampering with documents and other physical evidence, Must also apply the document.
	of evidence impairment, but that limit has no basis in the text or tools of construction.
	His reading hinges on the word otherwise, but that word means in a different manner, not in the same manner.
	And the two prohibitions in Section 1512C2 aren't unified items on a list where you could apply associated words canons.
	They're separate provisions.
	They have their own sets of verbs and their own nouns.
	They each independently prohibit a tense, which would be duplication that makes no sense on petition.
	Vocal fries drive me crazy.
	Because C2 is supposed to be in conjunction with...
	Mm-hmm.
	Catch-all.
	drag them specified acts that obstruct an official proceeding and c2 covers all other acts that obstruct an official proceeding in a different manner the court should say so and allow this case to proceed to trial i welcome the court's That was already better.
	There you go, Thomas.
	Ever done this.
	to other protests.
	No, because the head was never so bad.
	And this has been the government's position throughout the lifespan of this It has certainly been the government's position since the enactment of 1512C2 that it covers the myriad forms of obstructing an official proceeding and that it's not limited to some kind of evidence impairment gloss.
	Has it ever been applied to another protest?
	Answer the question.
	Answer the question.
	a building in order to prevent an official proceeding from occurring with all of the elements like intent to obstruct knowledge of the proceeding.
	having the corruptly mens rea but that's just because i'm not aware of that circumstance it's never been done it's never been done but just to give you a flavor of some of the other circumstances where we have prosecuted under this provision for example there are situations where we've brought c2 charges because someone tipped off the That's witness tampering?
	Obviously.
	There's no specific evidence, no, you know, concrete testimony or physical evidence that the conduct is interfering with.
	Instead, it's more general obstruction.
	Father, did you get convictions in those cases?
	Toledo mentioned the right case as well, and that's another one where it was a forged court order that prompted...
	Quite different?
	Quite different.
	But that didn't have anything to do with the evidence that was going to be considered.
	Oh, forged court?
	What role does C1 play in your analysis?
	So we understand 1512C to split up the world of obstructive conduct of an official...
	And to everything else.
	And C2 covers everything.
	other objects, and then C2 would only pick up conduct that obstructs an official proceeding in a different way.
	So there's no duplication of continuity on our reading.
	Instead, Congress was taking this universe and dividing it up into two separate offenses.
	And I think that's actually a virtue of our reading as compared to petitioners, because I have not heard him articulate anything that would fall within C1 that wouldn't also contribute to the other Well, I mean, in the way you're reading it, C2 almost exists in isolation, certainly not affected by C1.
	We don't deny at all that there is a relationship between the two provisions, Justice Thomas.
	And the relationship is the one Congress specified in the text.
	It's what follows the word otherwise.
	That is the relevant degree of similarity.
	What both C1 and C2 have in common is that they...
	Or aim at conduct that obstructs an official proceeding.
	C1 does so in one way, tampering with records and documents.
	C2 does so with respect to all other conduct that in a different manner does that.
	And I think that this has to be the road the court goes down to look at what Congress actually prescribed with respect to similarity.
	Because in contrast, if you take up petitioner's invitation to come up with some...
	A textual gloss from C1 to port over into C2.
	I don't understand what the court could look at to guide its determination of exactly what the relevant similarity would be.
	General, I'm sure you've had a chance to read our opinion released Friday in the Boycennet case.
	It was unanimous.
	It was very short.
	I didn't read it.
	What did it say?
	But it explained how to apply the doctrine of Houston Generous.
	And what it said is that...
	Specific terms, a more general catch-all, if you will, term at the end.
	And it said that the general phrase is controlled and defined by reference to the terms that precede it.
	The otherwise phrase is more general, and the terms that precede it are alters, destroys, mutilates, and seals a record and document.
	And applying the doctrine as was set forth in that opinion, the specific terms, alters, destroy, and mutilate, Carry forward into two, and the terms record, document, or other object carry forward into two as well.
	And it seems to me that they, as I said, sort of control and defined the more general term.
	So, Mr. Chief Justice, I think that the...
	I'm sorry, just to interrupt, so I put out exactly what...
	And the otherwise means in other ways.
	It alters, destroys, and mutilates record document or other objects that impede the investigation and otherwise, in other ways, accomplishes the same result.
	So I think the problem with that approach with respect to 1512 is that it doesn't look like the typical kind of statutory phrase that consists of a parallel list of nouns or a parallel list of verbs where the court has applied a usedem generous or the noskader canon.
	You know, these are separate prohibitions that have their own complex, non-parallel internal structure.
	And I think actually the best evidence that it's hard to figure out how you would define a degree of similarity between them just based on the word otherwise is that there are multiple competing interpretations at issue in this case.
	You know, Justice Alito touched on them and they're reflected in the competing interpretations between Judge Caxas on the D.C. Circuit.
	And it relates to exactly the question you asked me, which is that Judge Nichols thought that C1 should limit C2, and he looked at it and said, well, the relevant thing about C1 is it deals with records, documents, and other objects.
	And so that means C2 should be limited only to other acts that impair physical.
	Meanwhile, Judge Katzis looked at the specific intent requirement in C1 to take action that impairs the availability or use of the evidence, and he divined a broader gloss to put on C2 and said it should be other impairment of all other evidence.
	Well, they're just applying the same doctrine to different aspects of it, and I think you do that as well.
	What are the common elements?
	Alters, destroy, and mutilates.
	Or otherwise.
	You have the first few, what you're doing, and what you're doing it to.
	And what you're doing is for.
	As it said in Poisonette, controlling and defining the term that follows.
	So that it should involve something that's capable of alteration, destruction, and mutilation with respect to a record or a document.
	That's how you apply that doctrine.
	Again, as we did on Friday, it responds to some of the concerns that have been raised about how broad uh c2 is you can't just tack it on and say look at it everything if it's standing alone because it's not and if it did respond to that i do want to have a chance to address any concerns about breadth but the more fundamental point i think is that I don't even understand petitioner to be suggesting that you can mix and match the verbs and the nouns from C1 and C2 in this way.
	Judge Nichols had a more limited view that C2 exclusively focuses on physical objects.
	It wouldn't apply to things like testimony because of the limitation that he gleaned from C1.
	Judge Katzis, I think, maybe in line with your question, would interpret it more broadly.
	And the basic point as a textual matter is that there is nothing in the text of C2 itself to disclose what the relevant similarity from C1 ought to be.
	Instead, we think...
	See, the more she talks, the she digs the hole.
	Because I think I might, as I'm hearing you, think that whoever corruptly obstructs, influences or impedes any official proceeding or attempts to do so stands alone.
	And the otherwise, I'm not hearing what work it does.
	Can you explain to me what work it does on your view?
	Yes.
	It's a catch-all.
	The work it otherwise does is to set up the relationship between C1 and C2 and make clear that C2 does not cover the conduct that's encompassed by C1.
	Now, I acknowledge that there were...
	Beyond that.
	Beyond that.
	Beyond saying, okay, C1 does some things and the whole rest of the universe obstructing, impeding, or influencing.
	Is conducted by C2.
	Is that a fair summary of your view?
	Yes, but there was a good reason for Congress to do it this way.
	It traces to the statutory history.
	I understand that.
	If I might.
	So what does that mean for the breadth of this statute?
	Would a sit-in that disrupts a trial or access to a federal courthouse qualify?
	Would a heckler in today's audience qualify at the State of the Union address?
	Would pulling a fire alarm before Jamal Bowman qualify for 20 years in federal prison?
	Yes.
	multiple elements of the statute answer it might not be satisfied by those hypotheticals and it relates to the point I was going to make to the chief justice about the breadth of this statute uh the the kind of built-in limitations are the things that I think would potentially suggest that many of those things wouldn't be something the government could charge or prove as 1512c2 beyond a reasonable doubt would include the fact that the actus reus does require obstruction which we Bullshit.
	That's a terrible response.
	Some minimal outbursts require the court to reconvene after the proceeding has been brought back into line, or the pulling of the fire alarm, the vote has to be rescheduled, or the protest outside of a courthouse makes it inaccessible for a period of time.
	Are those all federal felonies subject to 20 years in prison?
	Good question.
	So, with some of them, it would be necessary to show nexus.
	So, with respect to the...
	Oh, shut up!
	Weasel!
	Weasel!
	Yeah, they were trying to stop the proceeding.
	Yes, and then we'd also have to be able to prove that they acted corruptly, and this sets a stringent mens rea.
	It's not even just the mere intent to obstruct.
	We have to show that also, but we have to show that they had corrupt intent in acting in that way.
	We went around that tree yesterday.
	I know.
	I heard the argument.
	I guess what I would say, to the extent that your hypotheticals are pressing on the idea of a peaceful protest, even one that's quite disruptive, it's not clear to me that the government would be able to show that each of those protesters had corrupt intent.
	protests that actually obstructs and impedes an official proceeding.
	For an indefinite period would not be covered?
	Not necessarily.
	We would just have to have the evidence of intent.
	And that's a high bar.
	They intend to do it all right.
	Yes, if they intend to obstruct and were able to show that they knew that was wrongful conduct with consciousness of wrongdoing, then yes, that's a 1512 C2 offense.
	Oh, there you go.
	She said it.
	Protests.
	By the way, for everyone asking what C1 and C2 is, here's the link.
	To confirm the deep historical roots with a subtle meaning and that it connotes not just knowledge of your actions, which is the intent to obstruct in this case, but further requires that it be done corruptly.
	And just to give you a more concrete example of how this has played out in the January 6th prosecutions, I'd point to the jury instruction in the Robertson case, which we refer to and quote in part on page 44 of our brief.
	There, the jury was instructed that in order to show the defendant acted corruptly, the jury had to conclude that he had an unlawful purpose or used unlawful means or both, and that he had consciousness of wrongdoing.
	So I think that that is an encapsulation of what the jury is asked to decide on top of the mere intent to obstruct.
	General, let me give you a specific example, which picks up but provides a little bit more detail with respect to one of the examples that Justice Gorsuch provided.
	Sounds like Roberts.
	That today, while you're arguing or Mr. Green is arguing...
	Five people get up one after the other, and they shout either, keep the January 6th insurrectionists in jail, or free the January 6th patriots.
	Well, did they have corrupt intent?
	Our police officers have to remove them forcibly from the courtroom, and let's say it delays the proceeding for five minutes.
	20 years.
	Right to jail.
	And I know that experienced advocates like you and Mr. Green are not going to be flustered by that, but, you know, in another case, an advocate...
	It's Alito.
	lose his or her train of thought and not provide the best argument.
	So would that be a violation of 1512?
	Did they have the corrupt intent?
	I think it would be difficult for the government to prove that.
	At the outset, we don't think that 1512C2 picks up minimal de minimis minor interference Well, it doesn't say.
	I'm sorry.
	C2 does not refer just to obstruct.
	It says obstructs, influences, or impedes.
	Impedes is something less than obstructs.
	I think that this is a verb phrase where iteration was obviously afoot.
	What the hell does that mean?
	You're preaching the plain meaning interpretation of this provision.
	The plain meaning of impede...
	In Webster's is to interfere with or get in the way of the progress of to hold up.
	In the OED, it is to retard in progress or action by putting obstacles in the way.
	So it doesn't require obstruction.
	It requires the causing of delay.
	So again, why wouldn't that fall within...
	You could say, well, we're not going to prosecute that.
	Yeah, that would be the selective prosecution.
	The Justice Department has not charged any serious offenses, and I don't think any one of those protesters has been sentenced to even one day in prison.
	Why isn't that a violation of 512?
	Infowars.
	We read the actus reus more narrowly.
	Now, perhaps you could look at some of the broader dictionary definitions and adopt a broader understanding of the actus reus.
	Still, there would be the backstop of needing to prove corrupt intent.
	I think that's a stringent mens rea.
	Well, that's not a corrupt intent.
	It's wrongful.
	Do you think it's not wrongful?
	I could imagine defendants in that scenario suggesting that they thought they had some protected free speech right to protest.
	Oh, I'm sorry.
	You think the defendants in January 6th don't say that?
	Oh, pounce on her, judges.
	Oh, shut up.
	Yes, indeed.
	Absolutely.
	What happened on January 6th was very, very serious, and I'm not equating this with that.
	But we need to find out what are the outer reaches of this statute.
	Given your interpretation.
	Let me give you another example.
	Yesterday, protesters blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco.
	What if something similar to that happened all around the Capitol so that all the bridges from Virginia were blocked and members from Virginia who needed to appear at a hearing?
	couldn't get there or were delayed in getting there.
	Would that be a violation of this provision?
	It sounds to me like that wouldn't satisfy the proceeding element, nor the nexus requirement.
	Why not?
	Let's say they want to get to the Capitol to vote.
	Well, if we have clear evidence that the purpose of the protesters who had set up the blockage...
	Let's just slow them down.
	Then yes.
	...some distance away from the court was because they had a specific proceeding in mind.
	Maybe you have the proceeding, but still, the court has required a nexus, and that's been the requirement...
	In the nexus.
	...Marinello, Aguilar, and Arthur Anderson, where the court has said it does real narrowing work because you have to show that the natural and probable effect of the action is to...
	They're blocking the bridge to prevent them from getting there.
	...causation and logic.
	But Justice Alito, the other thing I would say to this set of concerns is that there are other obstruction provisions, including in 1503, 1505, the tax obstruction statute 7212, that use this exact same formulation that the court has characterized as an omnibus clause and never suggested could be subject to an evidence clause.
	So I don't think that to the extent you have concerns about those hypotheticals, your question about what would happen in this courtroom could be covered by 1503.
	And interpreting this tax primarily isn't going to cure that issue.
	Go ahead.
	One more example.
	An attorney is sanctioned under Rule 11 of the Federal Rules of Civil Procedure by filing pleadings, written motions, or other papers for the purpose of causing unnecessary delay or needlessly increasing the cost of litigation.
	And in a particular case, the judge imposes.
	Article, Rule 11 sanctions, and says this caused a lot of trouble.
	I can tell you it caused at least five work days for me personally, all of this unnecessary paper, and it delayed the progress of this litigation.
	So I'm imposing Rule 11 sanctions.
	Why doesn't that fall within your interpretation of this provision?
	Congress created a specific safe harbor in 1515C.
	It's reprinted at page 17A to the appendix of our brief that specifies that advocacy or legal representation that is conducted as part of a proceeding shouldn't be understood as obstruction.
	Unless you're Trump's lawyer, by the way.
	Participation in a proceeding on the one hand versus external forces that obstruct the proceeding.
	It falls within the language, doesn't it?
	What kind of evidence do you typically present in these January 6th cases?
	To prove the corruptly element.
	So, the January 6th prosecutions require us to show first that the defendants had knowledge that Congress was meeting in the joint session on that day.
	We have to show that the defendants specifically intended to disrupt the joint proceeding.
	And then with respect to using unlawful means with consciousness of wrongdoing, we have focused on things like the defendants' threats of violence, willingness to use violence here.
	We allege that petitioner assaulted a police officer.
	We have focused on things like preparation for violence, bringing tactical gear or paramilitary equipment to the Capitol.
	And I want to emphasize, Justice Kagan, that this is a stringent mens rea requirement that has very much constrained the U.S. Attorney's Office.
	We've charged over $1,350.
	defendants with crimes committed on January 6th.
	Bit of a problem.
	We only had the evidence of intent to bring charges against 350 for a 1512 violation.
	Bull crap.
	So how do you make that decision?
	How do you decide which defendants get charged Yeah, what about Ray Epps?
	The dividing line has hinged usually on the evidence we have of intent.
	So we're looking for clear evidence that the defendant knew about the proceedings that were happening in the joint session in Congress that day, clear knowledge of the official proceeding.
	We've looked for evidence that the defendant specifically intended to prevent Congress from certifying the vote and so used his actions to obstruct that proceeding.
	And then also, as I mentioned, the knowledge of wrongfulness or unlawful conduct can come about with respect to particular preparations that the defendants have made.
	And, you know, there are a number of cases where even though we thought we had the evidence beyond a reasonable doubt, there have been acquittals because there was testimony that was credited that the defendant thought the proceedings were over and wasn't intending to obstruct.
	or one person thought and said he thought that Into the building.
	Feel that.
	Feel that.
	and it's because of the stringent mens rea.
	Oh bullshit, sorry.
	So let me ask you about your obstruction theory because you said that you see 1512 C as dividing the world of an obstruction and that the nexus between one and two is the official proceeding and the obstruction of an official proceeding.
	I guess what I'm concerned about is how you then account for the rest of 1512 where official proceeding comes up over and over again By the way, Ketanji Brown Jackson doesn't want this interpretation either.
	Probably more on our side than you think.
	So that if we read C2 to be...
	So to the extent you're pressing on the idea that there's surplusage, I don't think that that's true.
	There is certainly overlap or duplication.
	Well, that's a surplus.
	That's a surplus young lady.
	In part, it might even be more true on petitioners reading because he says that C2 is likewise focused on all of the evidence impairment ways to obstruct interfering with testimony, interfering with documents and so forth.
	And so that very same duplication is going to be present on his reading.
	But with respect to superfluity, our interpretation doesn't create any technical superfluity, and that's because each of those other provisions that you cited, and in fact, each of the other provisions of the obstruction laws, cover situations that 1512C2 wouldn't cover.
	There are three principal distinctions.
	The first is that some of them have less than a corruptly mens rea.
	So for many of the provisions, they can be violated in ways that wouldn't require the government to prove corruptly, and it might mean that we could charge particular applications of those provisions under them and not under C2.
	The second thing is that some of the provisions meet more broadly than an official proceeding.
	They apply in a wider range of circumstances.
	circumstances.
	So that would enable us to charge in those situations where we can't actually prove the official proceeding element.
	And then third and finally, some of the provisions have a higher penalty specifically because they target more culpable conduct.
	And that's like 1512a, the one you referenced about killing a witness.
	There, the government would charge under that provision because it's subject to higher penalties than C2.
	Can I ask you, would the government necessarily We wouldn't necessarily lose in the sense that they would not be able to bring charges against some of the people that you have described with Justice Kagan.
	If we looked at C2 as being more limited, perhaps not all the way to evidence, but related to conduct that prevents or obstructs an official proceeding insofar as it is directed to preventing access.
	We'll talk a lot more when they're done.
	I explored with Mr. Green, and as did Justice Barrett, the idea that to the extent that there were people who knew that the votes were being counted that day, and that's done in a documentary way in our system.
	Interfering by storming the Capitol might qualify under even an evidence or document interpretation of C2.
	What does the government think about that?
	Yes, I think that if the court articulated the standard that way, these would likely be viable charges.
	And as we note in the last footnote of our brief, we preserved an argument that we could satisfy even an evidence-related understanding of C2, in part because the very point of the conduct, when we have the intent evidence, was to prevent Congress from being able to count the votes, from being able to actually certify the results of the election.
	Now, we'd obviously need to evaluate whether these charges can go forward based on whatever this court says.
	And I would very much caution the court away from any holding that would require specific evidence by the government of precise electoral certificates.
	General, the district court and the dissent below had a different variation on The statute and how to read it.
	You were starting to explain that to the chief.
	Could you do it if we accepted the district court's view?
	I presume that you could do it if we accepted the dissent below, correct?
	Yes.
	Your whole response to Justice Ketanji, to Justice Jackson, sorry, to Justice Jackson, is that it assumes the dissent's view.
	I thought that Justice Jackson was potentially proposing even a broader view, including focusing on the availability part and making clear that when the whole point is to prevent the proceeding, including the consideration of evidence in the proceeding from happening, that could qualify.
	I think it becomes potentially harder on Judge Katz's view and especially harder on the Judge Nichols' view, and that's precisely because Judge Nichols seemed to think that to prove obstruction, it had to be limited to taking action with respect to the documents themselves, and that would be a difficult standard.
	You read our discussion on corruptly yesterday.
	It's clear.
	You've endorsed the Robertson view.
	Could you tell me what you feel about the Walker view, Judge Walker being part of the majority below?
	I assume you know that.
	Yes.
	So Judge Walker articulated an idea that corruptly has to turn exclusively on the government being able to show that the defendant sought to secure an unlawful advantage for himself or someone else.
	We certainly agree that that's one way for the government to prove corrupt intent.
	It's a way that has traditionally been deployed in the tax context because the very theory of the case is that the defendant is violating the tax laws or taking efforts to secure an unlawful advantage under the tax laws.
	But I think that it would be incorrect for the court to suggest that that's the exclusive mechanism for the government to try to prove corruptly.
	You know, there are various other ways where we might have evidence of, as we think we do here, unlawful means committed with consciousness of wrongdoing.
	And there's no basis in the common law or in how the term corruptly has long been understood to limit the government's rights.
	The draw in this case appears to be the fear that reading the government's view of...
	Either yesterday's case or today, on its plain terms, would make it so broad that somehow that presents a problem.
	I think the judges below struggled with that by saying that gets addressed in the word corruptly and in the nexus requirement, which is the point you've made today.
	But neither of those two issues were...
	Resolved below because that wasn't the question below, correct?
	That's right.
	The only issue that the D.C. Circuit resolved was the meaning of the actus reus.
	And the only issue between us is whether we read the words...
	How we read these words.
	That's right.
	But I don't want to lose sight of the fact, as your question touched on, that there are inherent constraints built into the other elements of the statute.
	The nexus constraint is a really critical one.
	It is the paradigmatic constraint the court has pointed to to ensure that obstruction statutes don't sweep too broadly and scoop up everyday conduct that might be happening out in the world.
	It has to have that tight connection, the relationship and time causation or logic with the official proceeding.
	And of course, corruptly, we think, sets a very high bar, as evidenced by the...
	General, are you putting a violence requirement as an overlay on obstruct?
	No, absolutely not.
	Hypotheticals, it seemed like you kept emphasizing the aspect of violence that was present on January 6th.
	So am I understanding you to say there has to be some sort of violence?
	No, we don't think that's a requirement under the statute.
	I think it will clearly be easier for us to satisfy things like the corruptly mens rea when we can point to action here, like assaulting a police officer that is obviously wrongful, unlawful conduct, and everyone knows that that's a crime and you cannot do that.
	What I was trying to say to Justice Alito is in situations where hypotheticals press on the idea that people are engaging in conduct that maybe they think is constitutionally protected, they might be wrong about that.
	There might not be a First Amendment right that they think they have, but that can demonstrate that they don't have the requisite consciousness of wrongdoing.
	That would mean we couldn't prove an obstruction charge.
	Thank you, counsel.
	I'm not quite sure I understood the answer you gave earlier about whether or not you've previously used C2 in this type of case.
	Have you done that before or not?
	We have tried C2 in situations that don't involve evidence impairment, and the litigating position of the department has long been that, as its plain language suggests, it covers myriad ways of obstructing.
	I'm not aware of any other factual circumstance or event out in the world where we could have proved all of the elements of Section 1512C2.
	Beyond the cases where we've brought those prosecutions.
	Just so I understand, the prosecutions are limited in what way?
	They're limited to a requirement that the specific people had in mind an official proceeding.
	So that would take out the category of hypotheticals where, you know, maybe you're protesting a branch of government, you're outside this court, but you don't have this specific argument in mind.
	And then we would also need to show an intent to obstruct the proceeding and the nexus to the proceeding.
	And that can take care of, you know, situations where maybe someone's killing a fire alarm in a different building.
	But it's not even where the proceeding happens.
	In prior cases, you have applied C2 in a situation, what?
	Not involving specific documents?
	Correct.
	So things like tipping off someone to the existence of a grand jury investigation, or the identity of an undercover officer, or creating a fake court order that has nothing to do with the evidence in the case.
	Orgery, witness tampering.
	Very different.
	And your friend points to an Office of Legal Counsel opinion from 2019 that I haven't looked at it yet, but I will.
	He says it is consistent with Judge Katsas' opinion below.
	So that advice that was offered to the Attorney General and never adopted as a formal position of the Department of Justice related to distinct issues that arose out of the special counsel investigation and distinct issues that involved the office of the presidency, I don't think that it would be right to suggest that the memo took any firm stand, although it did suggest that maybe 1512c2 should be understood more narrowly, but it certainly didn't represent any formal adoption of that position, and that would have been inconsistent with how the government has always litigated under C2.
	It constitutes a formal acceptance of OLC opinions.
	I should probably know the answer to that one as a matter of DOJ policy.
	But what I can tell you is the reason I'm saying that wasn't an official position is because it specifically said there's no need to go down the road of even deciding exactly what 1512C2 covers, because even assuming that it covers the full range of obstructive conduct, the allegations, according to the memo, didn't satisfy the standards there.
	So it ultimately just punted on the issue and said it's not necessary to engage with that issue further.
	Thank you.
	Justice Thomas?
	General, you said, as I understand it, that you have applied C-2 in previous cases.
	That's right.
	We've applied it in cases that do not fit the evidence impairment model that petitioners...
	What she described, though, does fit the evidence impairment.
	And it's not just C-2, Justice Thomas, but it's the omnibus clauses of 1503, 1505, 7212.
	You know, these are statutes that use the exact same verb phrase.
	Those are fine, but C-2...
	Yes.
	I'm not clear as to whether or not the specific instances in which you have used C2.
	Because you seem to think or argue that C2 is a standalone provision almost.
	We think that it covers the full range of obstructive conduct that's not covered by C1.
	But then why have C1?
	Why have C1?
	So if you have applied C2...
	Have there been previous, other than the D.C. Circuit, previous courts of appeals that looked at this?
	Yes, and the uniform consensus among the Court of Appeals has been that C2 is not limited by this kind of evidence impairment gloss that petitioner is asking the court to read into the statute.
	There has been no Court of Appeals that's gone the other way.
	We cite a string side of them that have recognized, looking at the plain language of this provision, that it sweeps in the myriad forms of obstructive conduct.
	So much of your argument seems to hinge on...
	This being fairly clear, your interpretation of C2.
	Yes, we certainly think we have the best of the plain text.
	Okay, if we think, if I happen to think it's more ambiguous, what would your argument be?
	So, what I would say is I think that if you look at the terms in the statute themselves, that the plain language of the statute supports our view, but it doesn't end there.
	And I have mentioned several times the other provisions in 1503, 1505, but we think that's actually really relevant because Congress wasn't writing on a blank slate when it enacted 1512C2.
	It's not like it just thought of for the first time, this verb phrase, obstructs, influences, or impedes.
	That wasn't taken out of the ether.
	That was a...
	And as this court has said many times, when Congress takes a phrase like that, it brings the old soil with it.
	And so Congress would have clearly known that the courts, this court and lower courts, had interpreted the omnibus clause in those other statutes to encompass the full range of obstructive conduct.
	That's also consistent with all precedent, as I mentioned to you earlier.
	So I think when you put it all together, there's no real ambiguity here.
	We clearly have the best reading.
	And the only other thing...
	If I could, is that if actually what Congress wanted to do is write a statute that focused only on evidence impairment, there was a really But
	that's beginning to sound more like a contextual argument.
	Which you seem to eschew in this case.
	Well, no, I think actually that the statutory context in history does bear weight here.
	And we think that the roots of this language and those other obstruction provisions help fortify or reinforce how the court has always understood the plain language.
	Justice Alito?
	You argue that there's an exception for conduct that has only a minimal effect on official proceedings.
	Where does that come from in the text?
	That comes from the verb phrase obstruct, influence, or impede, which we think, if you look at dictionary definitions, conveys the type of action that blocks, hinders, makes difficult, persistently interferes with.
	You know, this is the kind of—the verbs themselves, we think, inherently contain this limitation.
	There can't be a minor impediment?
	I think as a colloquial matter, yes, maybe.
	But, you know, we think that if you look at what Congress was trying to do as a whole, the lead term here is obstruct.
	These were various ways of trying to capture the world of obstructive conduct.
	And I think that that adequately conveys the idea that some kind of very minimal de minimis interference doesn't qualify.
	Well, it didn't stop with obstruct.
	It added impede.
	But what is the meaning of how would you define?
	A minimal interference.
	I suppose a jury would have to be charged on that in order to prove that the person violated this provision.
	A minimum.
	Yeah, so what they did with Kavanaugh, that was de minimis.
	How did you define it?
	Getting in the elevator, de minimis.
	This is an AI lawyer.
	Sorry, what about the example I gave you about the five protesters?
	I think that sounds minimal to me.
	I mean, it sounds to me like if it hasn't actually forced any substantial halt to these proceedings, it seems like that wouldn't pick up the track.
	Substantial.
	They counted the votes by that afternoon.
	Note a crap.
	You haven't said anything about the surplusage arguments.
	Let me just ask you a question or two about that.
	Suppose someone commits conduct that falls squarely within 1512D.
	The person intentionally harasses another person and therefore dissuades that person from attending or testifying in an official proceeding.
	So you've got a square, you know, a clear violation of 1512D, punishable by no more than three years in prison.
	But when Congress added 1512C2, Which seems to cover exactly that conduct.
	It said, well, the punishment shouldn't be, you could punish that person for up to 20 years.
	There's a key difference between 1512D and 1512C in that D doesn't require the intent to obstruct.
	And so the effect of the defendant's harassment action is to prevent the testimony or the production of the document.
	But the government has not read that statute to require an actual intent to obstruct, which I think means there are certain factual scenarios where the government might be able to prove a 1512D offense without satisfying C2.
	But I do want to be responsive to the broader concern that there's something anomalous about the 20-year penalty here.
	Let me say at the outset that no matter which statute the government charges under, with respect to all of the relevant obstruction statutes here, they would be funneled through the same sentencing guideline.
	So the charging decision wouldn't make a difference with respect to the sentencing range.
	And the concern you have with the hypothetical arises equally on petitioners reading, because so too everything that would be considered.
	So I don't think the existence of a statutory max when there's no mandatory minimum should drive intuitions about how to interpret this.
	Well, I'm not sure that's the correct interpretation of subsection D1.
	How about 1512B, which also has a 20-year penalty, but it seems to be completely subsumed by C2.
	I think there is a lot of overlap between B and C. I don't deny that.
	Again, that would be true on either reading because B is paradigmatic witness tampering.
	And so even on petitioners' understanding of the statute, there would be equal duplication there.
	What I would say is there's no actual superfluity because there are ways of violating B that wouldn't fall within our understanding of C2, including acting in a misleading manner towards someone, which wouldn't necessarily satisfy a corrupt intent definition.
	Really?
	You think you can knowingly threaten?
	Mislead, she said.
	Mislead.
	Corruptly persuade, corruptly mislead someone?
	I don't understand that.
	So my recollection is that there are multiple different means of carrying out that offense.
	Of course, something like threatening or corruptly persuading.
	How about a mean?
	How about a mean?
	Prosecutor.
	Another way you can violate B is through intentionally misleading someone.
	That wouldn't necessarily require corrupt intent.
	Douglas Mackey is going to jail for 20. Have we had enough here?
	I've had enough.
	Any more questions?
	Thank you.
	Sorry, one more question.
	I was struck by the contrast between your argument here that the court should read in a minimal exception with the argument that you made earlier this term.
	This is going to be good.
	Muldrow versus the City of St. Louis, where the question was whether an adverse employment action has to be significant or not.
	And you said, no, it doesn't have to be significant because, quote, the text likewise admits of no distinction between discrimination that results in a significant or insignificant disadvantage.
	This is interesting.
	In Muldrow, you told us, no, don't read in an atextual requirement of significance.
	But here you're telling us you have to.
	Yes, you've got to read in an atextual requirement.
	No, that is not our argument here.
	We are grounding this in the text, so we're not suggesting that there's a basic principle that applies around all the various legal statutes that are out there, not anything like that.
	Instead, we ground this in a particular understanding of what it means to obstruct and what that word conveys.
	Thank you.
	Justice Sotomayor?
	I know the Risch case because I decided it.
	Oh, good for you.
	However, the tip cases, are they in your briefs?
	We cite Ehrensfeld.
	That's the case where a subject of a grand jury investigation was tipped off about the existence of the investigation, but there was no, you know, kind of material impact or clear evidence of...
	Impairment of the evidence or availability of testimony or physical documents.
	And there are a number of cases in that line, including, I don't think we specifically cited, but it includes the disclosing the identity of an undercover officer.
	Where do I find those?
	We would be happy to supply additional citations if you're looking for them.
	I believe that the D.C. Circuit decision as well cited a range of C2 cases and made clear that they didn't cover evidence impairment.
	Thank you.
	Justice Kagan?
	Mr. Green referred a few times to 1519 and basically said, well, that's supposed to be the catch-all provision, the omnibus provision.
	You know, why are you asking 1512 to do the same thing that 1519 is supposed to do?
	Good question.
	So that's one question I have for you.
	And the other question I have is just, you've referred a number of times to other omnibus provisions, 1503, 1505.
	What's the tax one?
	7212.
	26 U.S.C.
	7212.
	If we go down Mr. Green's road in terms of importing other limits from other places in the statute, are any of those likely to be challenged in the same kind of way, or are they written sufficiently differently so that we wouldn't have to worry about that?
	So let me take the questions in order.
	With respect to petitioner's reliance on 1519 as the catch-all here, I understood the court's decision in Yates to say precisely the opposite.
	In fact, Yates drew a direct comparison between 1519 on the one hand, which it said was a more narrow obstruction provision based on some of the contextual clues there, and 1512C1 on the other hand, which has the phrase record, document, or other object, and said, well, that's the broad obstruction provision.
	That's the one that's intended to be codified in this broader prohibition that's aimed at official proceedings.
	And that C1 language is actually quite broader and would scoop up the entire world of physical So I don't think the idea that 1519 was the broad catch-all can in any way be squared with what that statute says or how this court interpreted it in Yates.
	And instead, I think that the example to draw from Yeats or the lesson to learn from it is that this court recognized that Congress was plugging the specific hole in the Enron scandal, and it did so with overlapping provisions 1512C1 and 1519, but it was 1512 that the court pointed to as the place where you would sensibly locate this broader provision that aims at the full range of obstructive acts to catch the known unknowns.
	With respect to I'm sorry, now I'm forgetting the second question.
	Oh, about the other statutes and whether they would be endangered.
	I would be concerned about that.
	I'm sure defendants would try to make arguments.
	The language, the verb phrase, is exactly the same or in different order sometimes, but it obstructs, influences, or impedes.
	And so the relevant verbs in the actus reus would be similar.
	There are different direct objects there.
	For example, in 1503, it's the due administration of justice.
	In 1505, it's the administration of the power of Congress's inquiry and investigation.
	But it's not clear to me whether whether defendants might seek to try to now artificially limit those those clauses beyond their plain terms, even though these kinds of provisions have been in the obstruction law.
	I think it traces all the way back to 1830.
	And they've never been understood to have that kind of narrow limitation to evidence impairment or anything else.
	Thank you.
	Scorsuch?
	That is the key word.
	That's what it hinges on.
	Under the Begay precedent.
	And you've used the phrase a few times, catch-all.
	Dragnet.
	Use Dragnet.
	A Garner book describes Houston Generous as how you interpret catch-all provisions.
	Does used and generous apply here or not?
	No, we don't think it can sensibly apply here.
	So the court has said many times that otherwise is a natural way for Congress to create a broad catch-all category.
	And I certainly don't dispute that there can be situations where you have a parallel list of nouns or a parallel list of verbs where the court might further think that used and generous principles apply.
	But that's just not how 1512C is structured.
	It has, as I've mentioned, its own complex internal structure.
	We've got the mens rea requirement that's unique to C1, and Congress did not transplant that into C2.
	That triggers the other canon, that when Congress uses disparate language and two adjacent provisions, usually it means something by that.
	So I think that this just isn't the kind of situation where the court could sensibly apply used and generous.
	And the other thing I would say is that, you know, if the court goes down the road of trying to glean some kind of requirement from C1, the other reason the canon is inapplicable here is that it's not evident on its face what the As you know, that's true in almost every Eustom Generous case, and the treatise explains that as well, which is it's hard sometimes to figure out what the common link among the words in the phrase is.
	So that point I don't think distinguishes this case from other Eustom Generous cases, but you can respond to that.
	Speaker of English would recognize that usually the common link or the connective tissue is the language that follows the word otherwise.
	That's the congressionally approved similarity.
	That's what C1 and C2 have in common.
	They both Relate to obstructing an official proceeding.
	And, you know, I recognize that petitioner has invoked Begay.
	Your question touched on it.
	But the statute in Begay, which we think is not the model of statutory interpretation to follow here, the statute itself was was relevantly different.
	It had a list of nouns.
	And so it was the kind of statute where potentially a Euston Generis could apply.
	What about the contextual points, a couple of them that I think have come up, but I just want to make sure you have a chance to respond, that it would be odd to have such a broad provision tucked in and connected by the word otherwise.
	I don't think that the placement in the statute is odd at all for a couple of different reasons.
	One is the point I was trying to make to Justice Kagan about this court's own recognition that 1512 is one of the big obstruction statutes.
	This is the statute that is aimed generally at official proceedings.
	It's not more discreet, and there are other provisions like 1519 and some of the ones that come right before it that are more narrowly confined and are intended to reflect discreet circumstances.
	That doesn't describe 1512 at all.
	So when Congress was trying to broadly prohibit obstruction of official proceedings, 1512 was exactly the right place to go.
	Then petitioner says, well, Congress buried it in the middle of the statute.
	But I think it's actually quite explicable when you look at how the other provisions are structured.
	1512D, which I was discussing with Justice Alito, has a much more minimal penalty and doesn't require the intent to obstruct.
	So it made sense to put 1512C before it, but also after 1512A, which is the most serious obstruction, like killing a witness.
	Punishable by 30 years or up to life.
	Last question.
	There's six other counts in the indictment here, which includes civil disorder, physical contact with the victim, assault, entering and remaining in a restricted building, disorderly and disruptive conduct, disorderly conduct in the Capitol building.
	And why aren't those six counts?
	Good enough, just from the Justice Department's perspective, given that they don't have any of the hurdles.
	This is all specific to January 6th.
	the root problems with petitioners'conduct is that he knew about that proceeding.
	He had said in advance of January 6th that he was prepared to storm the Capitol, prepared to use violence.
	He wanted to intimidate Congress.
	He said they can't vote if they can't breathe.
	And then he went to the Capitol on January 6th with that intent in mind and took action, including assaulting a law enforcement office And then charge him with assault, not obstruction under that provision.
	Then charge him for assault.
	Thank you.
	Any of the other counts or all of them together?
	There you have your answer.
	defendant, someone who doesn't have a prior criminal history and who committed violent conduct at the Capitol, accepting responsibility.
	I think the average guidelines range or the range that would yield is If they plead.
	If they plead.
	For someone who didn't commit violence, it would be 6 to 12 months of imprisonment.
	Can you imagine that?
	Itch Bay is saying this in front of the Supreme Court.
	Sentencing on just a 1512C2 is the only felony, so I think that's the best way to gauge it.
	This was when the sentencing enhancement did apply.
	6 to 12 months for non-violent.
	The average sentence among the approximately 50 people is 26 months of imprisonment, and the median has been 24 months.
	So there's no reasonable argument to be made that the statutory...
	The maximum here is driving anything with respect to sentencing.
	Thank you.
	Two years.
	General, I want to ask a clarifying question about the distinction in the government's charging decisions between C1 and C2.
	Actually, let me make that stronger, not charging decisions like what you could charge under the statute.
	So as you pointed out to Justice Kavanaugh just now, you know, C1 has this additional mens rea requirement.
	But, you know, there is overlap if you read otherwise obstructs influences, et cetera.
	Broadly, it would encompass, you know, frankly, even on the other reading, it would encompass things like alters, destroys, mutilates, et cetera.
	But you wouldn't have to prove the X. I thought I heard you say, and I just want to clarify to Justice Jackson earlier in the argument that the government could not charge an alteration, mutilation, concealing.
	A document or a physical object under C2, am I?
	That's correct.
	We usually charge the specific paragraph, and so if the conduct fits within C1, we would charge it under C1, and that would be the proper place to locate the charge.
	And is that charging, is that prosecutorial discretion, or do you think the statute would permit you to charge it under C2, thereby escaping the specific intent requirement?
	Well, let me say that there is a specific intent requirement under C2, so there's no distinction between them in that regard.
	So you're right that we wouldn't have to prove intent to, you know, mutilate a document or something.
	But we would still have to show the intent to obstruct the proceeding.
	You know, this is pressing on, honestly, what's a difficult question about means versus elements.
	And I think the best reading of the statute is that these are different elements because they have these different actus rei.
	They have the different mens rea requirement that's specific to C1.
	They each independently prohibit attempts.
	But it's a hard question, ultimately.
	If we charged under the wrong paragraph accidentally, I think we could usually say that that was harmless error or else recharge under the correct paragraph.
	We have our choice.
	Let me ask you a question that kind of gets at some of the same points that Justice Alito's questions were getting at.
	So what if on January 6th the Capitol itself had not been breached?
	The protest is going on outside the Capitol.
	Stop the steal.
	Stop the steal.
	Police are, you know, in megaphone saying disperse, disperse.
	They're too close to the Capitol.
	Their goal is to impair, impede, stop the proceeding, stop the counting of votes.
	Does that violate the statute, in your view, under this impede language?
	Yes.
	So I think that one relevant question would be whether we can satisfy the nexus requirement and show that actually the natural and probable effect of that conduct would be to have some effect on what's going on in the Capitol.
	Yes, you can.
	Yes, so if you're assuming that the same thing happened where Congress had to go into recess and couldn't hold the joint session after all because there was such a security risk, I think that that probably would be chargeable if we had the intent evidence.
	As I mentioned before, even with respect to the riot that happened, which was a much more serious breach, we don't have that evidence of intent for everyone.
	But if we had, for example, organizers where it was absolutely clear that they were the ringleaders who had intended to obstruct and undertook the action with that specific intent and did so knowing it was wrongful, and especially if they went, you know, I'm assuming you're saying they're in the unauthorized area right outside the Capitol, that is unlawful conduct committed with consciousness of wrongdoing if we have the proof of it.
	Let's say that I am having a hard time seeing your limiting construction of the verbs obstruct, influence, or impedes to have this extra element.
	Tell me why I shouldn't be concerned about the breadth of the government's reading just relying on...
	Oh, because we'll only use the property.
	Should I be concerned?
	Or could you just embrace it and say, yeah, there might be some as-applied First Amendment challenges or that sort of thing?
	I mean, can I...
	Be comfortable with the breath, if that's what I think.
	Of course you can, because we're good people.
	You don't have to agree with us that a de minimis hindrance wouldn't qualify.
	If you thought that this was unqualified and swept broadly to any kind of hindrance whatsoever, there would still be really important limits in the statute.
	Oh.
	Limits on...
	Yeah, they got they got limits.
	I think the nexus requirement could be somewhat harder to establish in a circumstance where you might not think that the natural and probable effect of the conduct is going to be to obstruct the proceeding.
	You'd have to show that the defendant knew that the natural and probable effect would do that.
	You'd still have to show the corruptly mens rea.
	And as you mentioned, even if you could show all of that, if it were a circumstance that really did infringe on First Amendment rights, there would always be the backstop of an as applied constitutional.
	Do you think it's plausible that Congress would have written the statute that broadly?
	I mean, let's say that I think that Justice Alito's example of the protesters in the courtroom, you know...
	Is a good example.
	It's corrupt.
	It impedes the proceeding because we have to go off the bench and things are stopped.
	Let's say I think that that's...
	Covered by the word impedes and let's there's the nexus and it's crumpled.
	Then you've criminalized protests Congress wrote a statute that would sweep that in yes I think that there are a lot of legitimate ways to She's asking the executioner if she has the right to kill.
	At least she's saying it out loud.
	Just a max.
	Just a max.
	Oh, yeah.
	Justice Jackson?
	So you've emphasized several times that Congress wasn't writing on a blank slate in 1512C, but do you dispute that it was writing on a blank slate?
	Against the backdrop of a real-world context.
	It was in the wake of Enron.
	There was document destruction.
	Not a terrible question so far.
	There was nothing, as far as I can tell, in the enactment history, as it was recorded, that suggests that Congress was thinking about obstruction more generally.
	They had this particular problem, and it was destruction of...
	This is the best question of the day.
	reassure us why we shouldn't think of this as being a narrower set of circumstances Reassure me.
	That you're not going to use it against my cause.
	That was the best question so far.
	So that was front of mind for Congress, and Congress wanted to address it.
	It did address it with C-1 and with 1519 separately.
	And C2.
	You can't.
	You can't.
	Let me just ask you this.
	Was C2 enacted at the same time as C1?
	Yes, it was.
	So they're not separate.
	relate to other ways in which one might prevent a proceeding from accessing information.
	I kind of like Justice Jackson right now.
	But the known unknown, we don't know, you know, could it be intangible, for example, that C2 is sort of getting at when one gets at physical objects?
	I guess I'm struggling with leaping from what's happening To a dragnet catchall in two.
	So I think the reason why we wouldn't suggest that the context could bear that narrower reading is because of the actual language that Congress used.
	If it was really just worried about other kinds of record-based, proceeding-based, evidence-based ways of obstructing, then there were easy templates to add that in as a residual clause to see one.
	There was no need to have this entirely separately numbered prohibition, and especially there was no need to use the well-recognized verb phrase obstructs, influences, or impedes, which was clearly drawn from these.
	other omnibus clauses that suite more broadly.
	So I think it, you know, we think that it's perfectly consistent with the statutory history here to recognize that after Enron, what the Exactly, but that's why two fits into one.
	She just made the best argument here.
	Thank you.
	Thank you, counsel.
	Rebuttal, Mr. Green?
	Nope.
	Justice Sotomayor, a defendant who tips off a grand jury witness or tips off the targets of a search warrant is someone who is certainly attempting to impair the integrity or the availability of evidence and would be covered by C2.
	Just as somebody who creates a document And then that document is shown to counsel, and counsel withdraws a mandamus petition, has in fact created something that has caused an interference with an official proceeding.
	I heard my friend...
	Say twice in response to your questions, Justice Gorsuch and Justice Barrett, that C2 would cover peaceful protests as long as she could demonstrate or the government could demonstrate that there was the adequate mens rea and a nexus.
	As the nexus, let's look at what 1512F says.
	For the purposes of this section, an official proceeding need not be pending.
	We're about to be instituted at the time of the offense.
	There is no nexus.
	Congress has written it out of the statute right there.
	If the J6 defendants came on January 5th and did all the kinds of things that they did, maybe one would hope, but if it had happened that way, it would still be a C2 violation.
	With respect to the corruptly mens rea, Justice Kavanaugh, you asked a question yesterday about the fact that mens rea as a break only works at trial.
	Because the government's allegations are taken as true at the motion to dismiss stage.
	And I think that's exactly right.
	And that's why it's not a break at all.
	Or if it's any kind of break, it's a break on a go-kart.
	It's a wooden stick.
	What it means is that people like Mr. Fisher...
	Have to sit and go to trial and seek to win on a Rule 29 motion because the government hasn't proved their mens rea.
	The same is true of First Amendment defenses if peaceful protesters are charged with C2.
	My friend referred to 1503 and 1505, other statutes within, and a number of the justices have pointed out that there are much lower penalties for significant crimes.
	I would point the court to 1752, which is civil disobedience in a restricted space, which is what Mr. Fisher is charged with.
	That's a misdemeanor.
	If you cause substantial bodily injury, that is a tenure.
	A tenure.
	The government wants to unleash a 20-year maximum penalty on potential peaceful protests.
	That in and of itself is a bad idea because it's going to chill protected activity.
	This is a final, finally made a good argument.
	The kinds of protests they engage in, even if they're peaceful, because the government has this weapon.
	Finally, I think...
	We haven't touched very much on the breadth of influence, because that's one of the words that's used in C12.
	And not only would it be peaceful protest, it could be advocacy, it could be all kinds of lobbying.
	Those things would be covered as well, we've pointed out in our briefs.
	And finally, I would say to the court, let's not forget that civil proceedings are covered here.
	We would submit civil evidentiary proceedings, but civil proceedings.
	So the government is suggesting that the court should unleash a 20-year maximum obstruction statute on civil litigation in federal courts.
	I submit that that is, and we would submit, that that is a very serious tool to put in the hands of prosecutors.
	Oh, she'd agree with you.
	We urge that the court reverse.
	The D.C. Circuit.
	Thank you, counsel.
	The case is submitted.
	Well, that's it for now.
	The Honorable Court is now adjourned until tomorrow at 10 o 'clock.
	10 o 'clock.
	Okay, I got lots to say, and I want to see the number go up now that we can actually talk freely over this.
	That was interesting.
	That was boring, painful, and uninspiring.
	It's actually kind of depressing.
	Let's start from the very beginning here.
	The lawyer.
	I'm not going to make fun of her accent because she's from Boise, Idaho.
	And so she raised good arguments.
	And we might be picking on her because we do not like the fact that she raised good arguments.
	But she's got the easiest argument of the bunch.
	That's what the la says, eh?
	So Solicitor General.
	It is Solicitor General Elizabeth B. Prelogar.
	Let's see.
	Prelogar, 48th Attorney General.
	Yeah, yeah.
	I think she's one year younger than me.
	Solicitor General previously served multiple roles in Department of Justice.
	Before her confirmation as Solicitor General, she served as Acting Solicitor General, yada, yada, yada, for nearly seven months.
	She also served as Assistant, whatever, yada, yada, yada.
	Okay, fine.
	Graduating from law school.
	Where did she go to law school?
	Solicitor General was born and raised in Boise, Idaho.
	That's where Napoleon Dynamite was filmed, I think, eh?
	And, well, that's Minnesota, Fargo.
	Graduated in the area's public school.
	She received her bachelor's degree, summa cum laude, from Emory University.
	Master's degree in creative writing with a distinction from the University of Angeles.
	She went to St. Petersburg, Russia.
	She's a commie.
	She's a commie.
	At Fulbright, she graduated magna cum laude from Harvard Law School.
	Well, now we know that she's a problem.
	All right.
	So that's the solicitor general.
	And Wikipedia.
	I just want to bring this one up because it's fun when you zoom all the way into the eyes.
	She looks like someone I know, actually.
	So that's the lawyer.
	I'm not going to make fun of the accent because it's Boise, Idaho, and it's not fun to make fun of people's accents if they come from Canada.
	But some of the frustration might be that I think she had a better presentation than Fisher's lawyer, personally and honestly.
	I initially was going to make the prediction that, of course, the court is going to strike this down.
	I even think Katanji Jackson Brown or Katanji Brown Jackson is on the side of Fisher here.
	But what you could clearly tell is that she was just like, just assure me that you're never going to use this against Black Lives Matter.
	Just assure me that you're never going to use this against progressive anti, not anti-trans, but rather trans-supporting protests.
	Just assure me that you're not going to use it against the people that protested Kavanaugh and only against the far-right.
	Mega-extremist Republicans who are, you know, insurrectionists.
	And look, other than the discretion, that's what Katanji Brown-Jackson's concerns are, in my view.
	We were talking a lot of the C1 and the C2, and nobody who hadn't read this piece of legislation knew what the hell they were talking about.
	Here.
	This is the provision.
	The code.
	United States Code 18. Section 1512.
	Tampering with witness, victim, or informant.
	I will preface this, everybody, by saying I am now a former practicing attorney from Quebec, never did criminal law, I have no expertise in this, and you take my analysis and my thoughts and my queries with a grain of salt, as you should.
	I pick the brains of people who have bigger legal minds than me, I absorb their information, and it becomes mine.
	They can never take it back.
	So take that all, what I'm about to say with a grain of salt, because...
	I read this and I try to make sense of it at the same time.
	Now we go down.
	Okay, now we keep going down.
	Now we're in this.
	Hinder, delay, prevent communication of law enforcement or officers.
	So you've got a whole slew of these things here.
	Deals with violence, witness, intimidation.
	Now, because of the Enron edition, destruction of documents.
	STI, and it has two parts, one and two.
	STI, whoever corruptly 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 otherwise obstruct.
	So they can do it this way or in any other way, obstructs, influences, or impedes any official proceeding or attempts to do so.
	The question is, they kept on saying, well, what's included in one that's not included in two?
	One says alters, destroys, mutilates, or conceals a document.
	And then two says otherwise obstructs.
	Do you read two in conjunction with one, or is it standalone, in addition to one?
	And that's the argument.
	My argument, that I've been screaming out loud that I wish they could have heard, if two is a standalone, and it's not to be read in addition to one, and thus complementary to it, two includes one.
	Any obstruction, influence, or impedes any official proceedings includes altering, destroying, mulet necessarily.
	So if two was not intended to be read as complementary to one, how can it add what might be missing from one without just being a standalone catch-all or dragnet, as they said?
	I mean, I forgot the way I was going to finish.
	If two was intended to be a dragnet catch-all, why even include one?
	That's my argument.
	It's quite clear.
	You have alter, destroy, mutilates, or conceals.
	Now, hypothetically, you get to the year 2024, where you can have...
	AI generated fake testimony.
	That's not altering.
	That's not destroying.
	That's not mutilating.
	That's not concealing.
	But it sure as hell is otherwise obstructing or influencing if you create fake testimony in ways that were not contemplated at the time.
	Or you say, look, I don't want some witty, snark-ass criminal saying, ah, I didn't alter, destroy, mutilate, or conceal a record, but I sure as hell did what I wanted to do in terms of obstructing.
	Or influencing or impeding any official proceeding in a way that wasn't captured in alter, destroy, mutilates.
	And so they said, well, we don't want some smartass criminal weaseling out of responsibility by saying we didn't enumerate it in one, so we're going to complement what we said in one with or otherwise obstructs always to be read in conjunction with one.
	That's the argument.
	Then you have some other more complex arguments where they're referencing other provisions of law that we're not going to get into.
	That's the argument.
	And what you have, what was her name again?
	Proligar, saying, well, no, no, no.
	You see, two is totally standalone, totally independent, and is much broader than one.
	I mean, basically, because it's not...
	They're talking catch-all versus dragnet.
	I like that analogy, and they should have harped on that as well.
	A catch-all is to say something that we might have missed.
	A dragnet is to say we're scooping up everything even if it wasn't the intended target.
	And they did not...
	Look, it's easy to say sitting from here.
	I sure as hell have never been to the Supreme Court of the United States of America.
	It's very easy to calmly listen to the question and say, oh, that's what they're asking.
	That's what you need to get at here.
	I think the Solicitor General did a better job.
	It sounded like the court was almost amenable to her, but they started getting a little bit harder on her towards the end because the bottom line, any protest, and I wouldn't just say any protest, I would actually, I would have said this as well.
	Every protest is intended to do exactly what Section 2 criminalizes.
	Oh, why didn't they say that?
	They're like, oh, well, isn't there a risk that this would capture?
	You know, ordinary protests.
	Oh, if I'm if I'm fishing, not only is there a risk, that's the necessity.
	Every protest is intended to some extent to frustrate, impede or otherwise.
	That's the nature of protest.
	The more disruptive it is, the better the protest to the extent that operates within the confines of the law.
	The problem with this subsection, too, is it effectively, if given the interpretation that prologar wants to give it, criminalizes protest, period.
	Sitting out on the front lawns of Parliament.
	Oh, the chanting.
	The chanting is impeding.
	The chanting is making it hard for parliamentarians to get into the building.
	Oh, here.
	Well, no, because you see now Hillary corruptly destroyed documents and delayed a hampered investigation.
	Well, A, yes, but I mean meaningfully so because what did Hillary do?
	What did Hillary do?
	She altered, destroyed, mutilated, or concealed record or document or other attempts to do so with the intent to impair the object's integrity or availability for use in official proceedings.
	She obviously did that.
	Smashed it with a hammer and wiped it with bleach bit.
	Be careful about these comparisons because what Hillary did was actual obstruction.
	What these January Sixers did was not.
	Even if it was assaulting a police officer, slap on 20 years.
	It's an amazing thing that this provision can enhance otherwise other crimes or alleged crimes that had a lesser infraction that were more serious.
	Just slap it on.
	If you assaulted a police officer, obviously it was to obstruct the proceedings.
	Oh, no, don't worry, because we do the analysis, right?
	We say, did he punch the officer in the face to prevent the vote count of the electors?
	Oh, no, he didn't.
	Then we won't charge them with this one, which carries a greater sentence than the actual assault.
	Oh, trust us.
	Oh, I'm sorry.
	You think they won't slap this on to every single charge that they plausibly can?
	Was that the intent of this provision when they enacted it?
	The answer is obviously no.
	Now, again, much easier for me to sit here and say that.
	This was an Enron-level, Enron-era amendment.
	And no, it wasn't two separate and distinct amendments.
	It was part and parcel of the same add-on.
	We don't want people weaseling out the way they did out of Enron.
	Section 2 is not independent and distinct from Section 1. They were part and parcel of the Enron amendments.
	Is that what they were contemplating when they did it?
	Hell no.
	Is there a risk that it's going to be broadly abused to criminalize all disfavorable protests?
	Hell yes.
	That's my analysis.
	But it's easy to say.
	And I might just be totally wrong.
	Lawrence Tried might be watching and saying, that stupid Canuck is saying the most legally untenable things on Earth.
	Bottom line, I don't think I am.
	But it's not a legal opinion.
	That's just my analysis.
	So the next time you are somewhere protesting and some cop invites, open the doors for you to come in.
	Start walking the opposite direction, says Coder 182 from Rumble.
	They should have been doing that from the beginning, by the way.
	Okay, so hold on.
	We got some stuff here to address.
	What about FBI lawyer who changed email from yes to no?
	Kevin Kleinsmith, 15. Oh, no, no, no, no, no.
	But he didn't do that to corrupt.
	Oh, for sure he did.
	Kevin Kleinsmith, nobody on this channel who's been here for any extended period of time is unfamiliar with Kevin Kleinsmith.
	I keep saying David Kleinfeld, the lawyer from Carlito's Way.
	Kleinsmith modified an email to which he was neither a sender nor a recipient.
	To physically, materially alter the email, printed it up, said that Carter Page was not an asset when Carter Page was an asset, which explains why he had interactions with Russians.
	If he's an FBI-CIA asset and he's interacting with Russians, obviously it makes sense because that's what they do.
	If you, as Clinesmith did, edit, alter an email that you're not a party to, submit it to a FISA court judge.
	So the FISA court judge says, oh, he was in touch with Russians and he wasn't a CIA asset.
	That's suspicious.
	Everybody knew it.
	What did he get?
	No jail time.
	He had a kid.
	He got disbarred for a year.
	I think he's actually been rebarred or readmitted to the bar.
	So yeah, absolutely.
	You're right.
	Penny G. Viva, the government's lawyer, has a really good argument.
	I hate to say it, but it's fact.
	She has the easiest argument.
	That's what the law says.
	It says otherwise.
	I mean, if they wanted to limit it, I mean, the bottom line, her strongest argument is, if they wanted to limit subsection 2 to the parameters of subsection 1, they would have just written subsection 1 as alters, destroys, mutilates, dot, dot, dot, for use in any official proceeding, comma, or otherwise obstructs, influences, or impedes.
	If they wanted it to be part and parcel of the same, Clearly and unequivocally put it in the same provision.
	The fact that they broke it down into two separate provisions, I'm just going to go with a plain reading, eh?
	Otherwise obstructs MPs or influences.
	Nothing in subsection 2 talks about documents, evidence, or witnesses.
	So that would have been her strongest argument.
	If they wanted them to be read together, they would have drafted them together.
	Bottom line?
	I don't care how they drafted it, separate or together.
	This goes too far as drafted.
	Void for vagueness?
	I mean, I don't know what other statutory canons of interpretation there could be here.
	Void for vagueness?
	Or even reading it in the context of the time it was never intended to apply as it's currently being applied right now.
	Because otherwise, it effectively, unequivocally, and categorically criminalizes protected speech, protected protest, protected rights of association, and a number of other constitutional rights, which don't seem to mean all that much these days, neither in the States nor in Canada.
	I wish you lived near me in Central Florida.
	My daughter is a fantastic dog groomer and works well with special needs dogs.
	Where's Winston?
	They trimmed...
	We won't be having any wheel nuts on Winston for a little while.
	The groomer trimmed very close to where those little nuggets of poo-poo get caught in the hair.
	He smells delicious.
	I don't want the dog's hair to be too short.
	I like a raggedy dog, but it comes with bones.
	You will have to remove my meme from my cold, dead hands.
	I'm keeping this up because I'm actually going to steal that.
	And make a meme out of that.
	Or at least maybe ask Finboy Slick in our locals community to do that.
	And there's going to be some rumble rants in a second.
	Viva Fry, is the vocal fry getting to you too?
	Yes.
	And I don't like vocal fry.
	I find it annoying across the spectrum.
	I try to make sure not to have vocal fry.
	But, you know, every now and again when I want to sound more intelligent, I let my vocal fry fly.
	Viva, I think the court is aiming.
	It's either all acts or only those in C1.
	What do you think?
	I'm not optimistic.
	I'm not optimistic.
	I think they're going to...
	Let me think about what my prediction is going to be before I get there.
	She's already planning on selective enforcement.
	That's the other thing that I picked up.
	Just reassure us you're only going to do this when it's warranted.
	Hillary Clinton smashy smashy?
	Oh, no, no, no, no.
	You go through a door?
	Yes, yes, yes.
	Extreme agro-Republican?
	Yes, yes, yes.
	Lefty progressive?
	No, no, no.
	Black Lives Matter?
	That would be racist application of the law.
	Stop the steal?
	Ooh, interfering with progress.
	Progress, Congress, whatever, you know what I mean.
	Okay, hold on, I want to bring this up.
	Ooh, Bill Tong is in the house!
	Bill Tong, the latest shipment came in.
	It's delicious.
	Hold on.
	Hold on.
	Hold on.
	Oh, yeah.
	Hold on.
	Oh, gosh.
	Well, it seems Pudge was whining to get out of my office so that she would spare me the duty, the glory of her taking a dump on the floor.
	I went outside.
	There's a little nugget on the ground, but I didn't step in it.
	Thank goodness.
	Hold on.
	Let me just bring this out here.
	This is my recent order.
	Shipment of Biltong.
	I just want everybody to see what this looks like.
	This is the...
	This is not an ad, by the way.
	This is not...
	I'm not clicking the sponsor box because this is not a sponsored video.
	I'm just eating this.
	This is the Wagyu.
	Look at it.
	Look at it.
	Hold on.
	Focus!
	That's the built-on, people.
	I hate eating it on camera.
	It's softer than beef jerky.
	It's like eating...
	I mean, basically, if you've ever left a steak out overnight and then eaten it the next day, which I've done many times, that's close to what this tastes like.
	Hold on.
	Hold on.
	I hate eating on camera because nobody likes the sounds of someone's chewing, potching mouth.
	This is not yet ASMR, but let me read the rumble rants that came in.
	King of Biltong, good afternoon from Anton's in Roanoke.
	Meet and eat.
	Free shipping for your Biltong using code VIVA.
	This is a $30 rumble rant on www.biltongusa.com.
	Antonusa.com.
	Biltong, a dragnet for all your taste buds.
	It's objectively delicious.
	Unless you don't like meat, in which case you are objectively crazy.
	UACP 17. She's saying, please give the government massive protest crackdown power and I pinky promise to use prosecutorial discretion fairly.
	Hard pass.
	They're abusing it already.
	That's, I mean, you know, that's the thing is like if that lawyer were watching this live stream as he was talking, as they were pleading, that's an argument right there.
	Oh, just trust them.
	They're only going to use it.
	We're the mens rea of the corrupt intent to interfere with the criminal proceeding.
	Bullshit!
	First of all, I want everybody to understand this.
	Again, this is not legal advice, period.
	People think the mens rea.
	So you have actus rea, mens rea, both elements of criminal conduct that need to be proven beyond a reasonable doubt in order for there to be a conviction.
	Proof that you did the act, actus rea, and proof that you had the intent.
	Not to break the law, but to do the act that was illegal.
	Mens rea.
	And remember, people think like, oh, I didn't mean to break the law.
	Ignorance of the law.
	It's like, oh, well, did you mean to go 100 miles an hour?
	Yes.
	Did you know 100 miles an hour was illegal?
	Doesn't matter.
	Did you mean to do the act that was prohibited under the law?
	Not did you mean to break the law.
	So this one's going to say, oh yeah, it only requires the mens rea of the corrupt intent to interfere.
	With an unofficial proceeding.
	How do you corrupt intent?
	Well, that requires a little bit of mind reading or a little bit of just let's go to trial and see if the person presents a...
	What's the word I'm looking for?
	Beyond a reasonable doubt.
	A reasonable doubt as it relates to that element of the infraction.
	So there is no stopping where this would go and they should have highlighted that.
	Oh, I'm sorry.
	You want them to be able to prosecute anybody who they allege corruptly intended to impede an official proceeding.
	Oh.
	Double park your car behind a police officer?
	You corruptly...
	I mean, I'll take some absurd examples, but let's start with the reductio ad absurdum to illustrate why this cannot stand as a rule.
	So you're a thousand percent right, U-A-C-P-A.
	You know who I'm talking about.
	Abraham P. Logged out of Locals and back in, still seeing nothing, but I feel it's probably on my end.
	No, Locals is good.
	I'm going to get there in a second and interact with the chat over there.
	Let's just finish this up here.
	Excuse me.
	How do these...
	Okay, we got Crash Bandits.
	How do these actions from our government not make people crazy, or is this how the FBI performs?
	A nudge, yes.
	Is the local stream...
	It's not loading, refreshing.
	Lisa is there.
	Okay, we got that.
	Now, so that's that.
	Let me just...
	I'll get here.
	Locals.
	Let's see what's going on here.
	We got a tip in Locals.
	It says, finally got Locals to load after some effort, says Abraham P. Yeah, it's things, things.
	Finboy Slick says we're good over here.
	Finboy Slick is the master of memes or AI-generated images and wants me to not grow a mullet, but cut my hair in a manner such that it would result in a mullet.
	Nah, gonna happen.
	By the way, stay tuned later this afternoon.
	I think, I'm not sure if I'm gonna do it live because it might just be a...
	20-30 minute interview, but a follow-up with Dexter Taylor, ghost gun guy who's now entering closing arguments in his criminal defense, in his criminal trial.
	He could, in theory, be hauled off to jail tonight.
	So they are doing closing arguments.
	I presume there's going to be more than 30 minutes of deliberation, so I'm going to see when he's available.
	We're going to record a follow-up of his trial, and I'll publish it, regardless of what happens.
	S underscore Ren says, Viva, it's absurd until Alex Jones becomes the first, not the only person charged with stupid things.
	Absolutely.
	I'm trying to think of who they targeted like this before Alex Jones.
	But I think Barnes is right.
	They did this type of stuff to politically, not politically disfavored.
	That's what they're doing now.
	They did this to people with no voices.
	And so it's been going on for years.
	And, you know, you meet the guy who says, like, I've been prosecuted by the FBI and all this crap.
	And you're like, yeah, I never heard of it.
	Of course he didn't, because I'm not the president.
	I'm not Alice Jones with millions of followers to put it on blast.
	And they were smart enough to do it to people who couldn't speak out, fight back, or protest.
	So, there's that.
	What was I going to say also?
	Oh, yeah, hold on a second.
	We're on YouTube.
	We have YouTube.
	Did I close it?
	No, we got 2,500 people on YouTube.
	If you're so inclined, hit the thumbs up and subscribe.
	But more important than that, come over to Rumble and vote with your dollar and your eyeballs and your feet.
	Rumble.
	On Rumble, how many are we?
	6,100.
	Subscribe.
	Give a thumbs up.
	Have we ever gotten to a number of viewers?
	Thumbs up.
	Hit thumbs up and let's just see what we...
	We're up to 670.
	That's 10%.
	That's not bad.
	Okay, that's fine.
	Viva!
	They also went after Rush Limbaugh.
	YouTube is still a thing?
	Eh.
	Jacob Castro.
	YouTube is an advertising tool for Rumble.
	In all respects.
	Let me see what we got here.
	Smash that like, bigots, says Jacob Castro.
	So we did this.
	This was interesting.
	Okay, so the notes I took.
	Let me just see here.
	From Catch All to Dragnet.
	I like it.
	Justice Thomas was focusing on the otherwise.
	What does that word mean if it's not to be read in conjunction with paragraph one?
	Oh, I don't want to judge the lawyer too harshly.
	There could have been better arguments.
	And who asked, had C2 and C1 been drafted together, what then?
	That's the question I had.
	Then they got overbreadth, overbroad versus misapplied is one of my concerns.
	Confounding two arguments.
	Okay, so why even put C1 in if C2 is a catch-all?
	That was my note.
	C2 being the otherwise captures everything.
	Okay, we want to be specific to documents, and then we want to be general to everything under the sun.
	Okay, that's it.
	Oh, then the heckler.
	Well, did the heckler mean to meaningfully impede?
	Meaningfully impede.
	All right, I think that's it.
	And then we didn't talk about Owen Schroyer.
	Owen Schroyer.
	They didn't get him on that charge, but why not?
	He protested while Nadler, Penguin Nadler, was talking and, you know, lock him up.
	Lock him up for 20 years.
	Oh, but don't worry.
	That's just the maximum.
	There's no minimum.
	I'm sorry.
	The fact that it's a maximum of 20 years is intended to indicate the seriousness of the crime, not the arbitrary.
	Just make every crime a maximum of 100 years.
	Maximum life, but no minimum.
	And they say, well, no biggie.
	No biggie.
	Just maximum life.
	I think we do good here.
	Let's see here.
	Go back to...
	Make a damn rumble stock.
	Go up.
	It would be nice.
	It says R.P. McMurphy.
	What is the Donald Trump at these days?
	R.P. McMurphy says, Your hair finally looks good.
	It takes a long damn time.
	When I...
	Nobody cares about my hair.
	But there's that magic window.
	The day you wash it, brush it, and oil it, it doesn't look good.
	And then if you put in a ponytail, as my daughter now has told me, if you put your hair in a ponytail when it's wet, It dries straight, not curly.
	So, like, after two or three days, it gets good.
	Then it gets greasy, knotted, and then start...
	Rinse, wash, and repeat.
	People, unless I've missed anything, I'm going to go to the chat and see if I've missed anything.
	This is RumbleStreams, too rich on live streams.
	RumbleStreams, too rich on live streams.
	Oh, I see what you're saying.
	So Garrett Pace is saying...
	Oh, I can bring it up.
	Why am I not doing this?
	Rumble streams are too rich on live streams.
	Fix it as in...
	No, I think that's the feature of Rumble, not the bug.
	YouTube is a social media platform.
	Rumble is a network.
	And then I mean a network like networking, synergizing.
	People go to Rumble for long format informational educational material.
	People go to YouTube for kitty cat videos.
	There's nothing wrong with that, and there's some kitty cat videos on Rumble.
	But I think Rumble is sort of like better than, but a Spotify.
	People go there for the network of information providers that they like, and they don't go there for like frickin' TikTok videos.
	So, what are cruise braids?
	Are those cornrows?
	Jerry Curl Viva.
	So close!
	Oh, yeah.
	Okay.
	So that's...
	Look, we did this.
	This was fun.
	What else is going on?
	So tomorrow, I'm going to be on The Unusual Suspects, but I'll probably go live as well because it's an early day so I can get a stream in the afternoon.
	Friday, Jason Palmer, Vice...
	Not Vice President.
	Running for President against Joe Biden.
	It's going to be fantastic.
	I think we are scheduled from...
	Oh, no!
	Let me see.
	It's in my...
	No, it's in my calendar.
	One to two.
	Booyah.
	It's going to be fantastic.
	And what else is there?
	Locals?
	I'm going to end this on both Rumble and YouTube.
	Come over to Locals and we're going to have our after party.
	I don't know how long it's going to last, but I'm going to eat during the after party because I'm hungry.
	I haven't eaten breakfast yet.
	Link to Locals.
	Come on, boys.
	We had a good one last night after the stream.
	I got to upload.
	Yesterday's stream, I got to upload the audio.
	And I'm going to go do another video, catch up on Trump trial.
	Have there been any news there?
	We'll find out in our locals community.
	So thank you all for being here.
	Viva Frye, David Frye, Montreal litigator, turned current Florida, former Montreal litigator.
	And, um, Frye, it means the freedom, yeah.
	Uh, like dreadlocks.
	Oh, no, I'm not doing dreadlocks.
	I did dreadlocks once, cut my hair the day before I met Marion for the first time in 1999.
	Rumble is floating at just over $6.
	It never does anything.
	Long run, think Bitcoin, but maybe actually tangible and something that you know how it works and what it does.
	Rockstar, thanks, Vs.
	Nice to see you again, Rockstar.
	Wait, there's two Rockstars.
	There was one that had the turkey, the wild turkey in the avatar.
	Do you need the cow poop in your head?
	There will be no cow poop!
	Do you need the cow poop?
	And make sure I didn't miss anything before we head out and check out for the day to the Rumble after party.
	Okay, we're good.
	So here's what we're doing.
	I'm ending it.
	I will see you all tomorrow, probably this afternoon with a short car vlog.
	Although I think I'm going to do the car vlog in the office because the wind drives me crazy.
	Thank you all for being here.
	I hope you enjoyed.
	My prediction?
	I don't think they're going to overturn it.
	And the problem is now I'm saying that knowing that my predictions tend to be wrong because that's what I want to be the case.
	So now I'm using like double reverse psychology.
	If they said the obstruction...
	Cannot be read the way the prosecution wants.
	It would be good for Trump.
	I didn't get that impression.
	And I hope to be wrong.
	But I do not think they're going to invalidate the obstruction charge.
	That's my prediction.
	And I hope I'm wrong.
	With that said, everybody, go and enjoy the day.
	There's much time left.
	Sunlight.
	Exercise.
	Talk to people in real life.
	Ending on YouTube.
	3-2-1.
	Going over to Rumble.
	To end on Rumble.
	King of Biltong.
	Thank you.
	Everybody over there.
	Livestream.
	Oh, hold on, and I'll give everybody the link to Locals.
	Come on, one all.
	Come one, come all.
	To Locals.
	Boom.
	There.
	And now, Rumble, it's been good, and I shall see you all tomorrow.
	Ending the livestream on Rumble.
	Boom!
	Oh, my butt hurts.
	Not my butt!
	The backside of my legs.
	And it's weird.
	Okay, now we're in Locals.
	Now we can really talk.
	Afterpie.
	Oh, yeah.
	It's absurd until...
	Okay, so hold on.
	We're going to get back here.
	So what is the latest?

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