A divided three-judge panel of the D.C. Circuit, siding with almost all of the district court decisions considering the question, has held that some of those who invaded the U.S. Capitol on January 6, 2021 could be charged under a federal statute that makes it a crime to, among other things “corruptly….obstruct[]…or impede[] any official proceeding, or attempts to do so.”* The three judges offered three different interpretations of the statute, with Judge Pan, appointed by President Biden, reading the statute in the way that would cover the most January 6-related conduct, Judge Walker, appointed by President Trump, reading “corruptly” more narrowly but still potentially applying to some of the January 6 defendants, and Judge Kastas, also appointed by Trump, reading the statute (part of the Sarbanes-Oxley law dealing primarily with financial crimes) as applying only to “evidence-based” obstructions or impairments of proceedings.

This case has implications not only for hundreds of January 6-related prosecutions, but also potentially against Donald Trump, should DOJ choose to charge him with election-subversion-related activities after the 2020 election. And although the full D.C. Circuit, should it have to reach the issue at some point, is likely to agree with Judge Pan’s interpretation of the statute, the conservative Justices on the Supreme Court could well embrace Judge Kastas’s narrower reading of the statute. But all the judges on the court engaged primarily in textualist interpretation of the statute, knowing that their ultimate audience is the textualists on the Supreme Court.

A narrower reading of the statute could insulate not just some of the January 6 prosecutions for those who physicially invaded the building, but also an attempt to go after Trump himself—whose actions related to the January 6 invasion of the Capitol were more indirect.

Stay tuned.

*The full statute, 18 U.S.C. section 1512, reads:

(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts
to do so, with the intent to impair the object’s integrity or availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.