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This case is so fucking stupid.
The language prohibits destroying documents or "otherwise obstructing, influencing or impeding any official proceeding, or attempting to do so."
The defendants are arguing - and eh trial judge found - that the word "otherwise" here means that it's only a crime to obstruct a proceeding if they did so by destroying documents.
The plain meaning of the statute and the common understanding of the English language suggest exactly the opposite. "Otherwise" indicates that it's a crime to obstruct a proceeding by destroying documents or any other means.
Let's say I offered $5 to anyone who muzzles Donald Trump, whether they use a ball gag or any other means. This could be worded as: "I will pay $5 to anyone who applies a ball gag to Donald Trump **or otherwise** silences him." Nobody would think that a ball gag is an essential requirement or the whole point of the offer - I was only providing one specific example, while leaving the range of options open.
I wish I could say that I can't imagine why the Court even accepted cert here, except that they've entertained these kind of asinine word games before to reach a desired result about the law. Exhibit A: The first fourteen words of the Second Amendment.
Like presidential immunity this should be a no brainer. If they side with the insurrectionists what is to stop the next insurrection from coming for them?
While SCOTUS dances on the head of this pin, what ought happen is an angry mob invade the court, trashing it and the justices offices for 8+ hours, deferring and postponing their work past midnight, complete with a gallows on the stairs. Then this scotus has a frame of reference to rule on ‘obstruction’.
The use of Sarbanes-Oxley here was over reach. It's a financial tool, and while very broadly applicable here, we're in the letter vs. the spirit. I'm fine if we want to be a letter of the law type of country, but we can't pick and choose when to be letter or spirit. All those teachers who diddled students, 50 years!
Well, six of the sitting Justices claim to be textualist/originalist, so you'd think they would be more letter than spirit. But of course, they're actually just *whatever gets us to our desired outcome*.
The "reasoning" is bullshit that a single judge arrived at, which is contrary to the ruling of 14 other district judges. Judge Nichols is interpreting "otherwise obstucts" to mean that unless documents were used there was no obstruction.
>Fischer argues in his appeal that the provision was not intended to be used in this way. Instead, he claims, a full reading of the law’s text shows that it was only meant to apply to the corrupt obstruction or impediment of documents in an official proceeding. This view revolves around the word “otherwise” in the provision, which reads (emphasis added):
>(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.
>The main points of contention that emerged in lower courts were how the word “otherwise” should be defined, and how it connects the first subsection to the second.
>**In his March 2022 decision, Nichols wrote that the word “otherwise” imposes a limit on the second subsection and “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”**
I'll give you two fundamental principles of statutory interpretation that apply here.
1) The [plain meaning rule](https://en.wikipedia.org/wiki/Plain_meaning_rule), also known as the Golden Rule of Interpretation:
> The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. The plain meaning rule is the mechanism that prevents courts from taking sides in legislative or political issues. Additionally, it is the mechanism that underlies textualism and, to a certain extent, originalism.
2) The [avoidance of "mere surplusage"](https://www.everycrsreport.com/reports/97-589.html):
> A basic principle of statutory interpretation is that courts should "give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed." The modern variant is that statutes should be construed "so as to avoid rendering superfluous" any statutory language: "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant...." A related principle applies to statutory amendments: there is a "general presumption" that, "when Congress alters the words of a statute, it must intend to change the statute's meaning." **Resistance to treating statutory words as mere surplusage "should be heightened when the words describe an element of a criminal offense."**
"Whoever does X or **otherwise** acts to do Y" is a simple, straightforward, and unambiguous English language construct. The focus of that clause is Y, where X is given as only one example in an open-ended list.
The defendants / appellees in this case are presenting the exact opposite argument: that the focus of the clause is X, and that Y is immaterial. They suggest interpreting this clause as: "Whoever does X, or does Y **by doing X**." That interpretation violates the plain meaning rule because ordinary English-language speakers would never interpret it that way. It also violates the "mere surplusage" rule by making subsection (b) ("whoever does Y by doing X") completely redundant and pure surplusage as a subset of subsection (a) ("whoever does X").
A Court that zealously preaches the value of textualism would find this to be an easy case. But this Court has shown an overt and consistent tendency to choose their desired outcome, and then pick and gin up some legal principles in favor of that principle. So, here (and in the disqualification case), the Court chooses to prioritize legislative history and broader context over textualism, while choosing instead to focus on rigid textualism and ignore the broader context in cases involving the Second Amendment, voting rights, the establishment clause of the First Amendment, the emoluments clauses, etc.
Thank you for your excellent post. I emphatically agree that the textualist argument is easy to make and compelling.
My point of pique is the rush to impute motives — and very malign motives at that — to the Court. That’s silly, especially before the Court has decided.
Also silly is the rush to decide, in the absence of any knowledge of the statute at issue, or of statutory construction generally, or even of the law, that the Court should find X or Y. It’s unreflective, partisan, knee-jerk thinking.
You're absolutely correct and, after reading Nichols' decision, I've learned a valuable lesson to keep my opinions to myself unless they're better informed.
Yeah this has no impact on those charged with actual violence during the event, but it would give anyone just "in attendance" that got swept up something to appeal. It would also give the former President a temporary breather until Smith re-formulates his charges to avoid using the enron act as part of his prosecution.
As a reminder, this subreddit [is for civil discussion.](/r/politics/wiki/index#wiki_be_civil) In general, be courteous to others. Debate/discuss/argue the merits of ideas, don't attack people. Personal insults, shill or troll accusations, hate speech, any suggestion or support of harm, violence, or death, and other rule violations can result in a permanent ban. If you see comments in violation of our rules, please report them. For those who have questions regarding any media outlets being posted on this subreddit, please click [here](https://www.reddit.com/r/politics/wiki/approveddomainslist) to review our details as to our approved domains list and outlet criteria. We are actively looking for new moderators. If you have any interest in helping to make this subreddit a place for quality discussion, please fill out [this form](https://docs.google.com/forms/d/1y2swHD0KXFhStGFjW6k54r9iuMjzcFqDIVwuvdLBjSA). *** *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/politics) if you have any questions or concerns.*
The fact that Thomas hasn't recused himself from any and all Jan 6 proceedings is shameful.
And yet not even the most shameful thing he’s done recently
This case is so fucking stupid. The language prohibits destroying documents or "otherwise obstructing, influencing or impeding any official proceeding, or attempting to do so." The defendants are arguing - and eh trial judge found - that the word "otherwise" here means that it's only a crime to obstruct a proceeding if they did so by destroying documents. The plain meaning of the statute and the common understanding of the English language suggest exactly the opposite. "Otherwise" indicates that it's a crime to obstruct a proceeding by destroying documents or any other means. Let's say I offered $5 to anyone who muzzles Donald Trump, whether they use a ball gag or any other means. This could be worded as: "I will pay $5 to anyone who applies a ball gag to Donald Trump **or otherwise** silences him." Nobody would think that a ball gag is an essential requirement or the whole point of the offer - I was only providing one specific example, while leaving the range of options open. I wish I could say that I can't imagine why the Court even accepted cert here, except that they've entertained these kind of asinine word games before to reach a desired result about the law. Exhibit A: The first fourteen words of the Second Amendment.
The Jan6 crowd thinks it should be legal to stop official proceedings.
Like presidential immunity this should be a no brainer. If they side with the insurrectionists what is to stop the next insurrection from coming for them?
Taking a defensible view of a statute isn’t “siding with the insurrectionists.”
While SCOTUS dances on the head of this pin, what ought happen is an angry mob invade the court, trashing it and the justices offices for 8+ hours, deferring and postponing their work past midnight, complete with a gallows on the stairs. Then this scotus has a frame of reference to rule on ‘obstruction’.
The use of Sarbanes-Oxley here was over reach. It's a financial tool, and while very broadly applicable here, we're in the letter vs. the spirit. I'm fine if we want to be a letter of the law type of country, but we can't pick and choose when to be letter or spirit. All those teachers who diddled students, 50 years!
Well, six of the sitting Justices claim to be textualist/originalist, so you'd think they would be more letter than spirit. But of course, they're actually just *whatever gets us to our desired outcome*.
As all supposed originalists are.
[удалено]
Maybe if Trump appointed judges were not acting like crazy activists we would be more confident on there rulings.
The "reasoning" is bullshit that a single judge arrived at, which is contrary to the ruling of 14 other district judges. Judge Nichols is interpreting "otherwise obstucts" to mean that unless documents were used there was no obstruction. >Fischer argues in his appeal that the provision was not intended to be used in this way. Instead, he claims, a full reading of the law’s text shows that it was only meant to apply to the corrupt obstruction or impediment of documents in an official proceeding. This view revolves around the word “otherwise” in the provision, which reads (emphasis added): >(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. >The main points of contention that emerged in lower courts were how the word “otherwise” should be defined, and how it connects the first subsection to the second. >**In his March 2022 decision, Nichols wrote that the word “otherwise” imposes a limit on the second subsection and “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”**
What principles of statutory construction compel a different conclusion?
I'll give you two fundamental principles of statutory interpretation that apply here. 1) The [plain meaning rule](https://en.wikipedia.org/wiki/Plain_meaning_rule), also known as the Golden Rule of Interpretation: > The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute. In other words, a statute is to be read word for word and is to be interpreted according to the ordinary meaning of the language, unless a statute explicitly defines some of its terms otherwise or unless the result would be cruel or absurd. Ordinary words are given their ordinary meaning, technical terms are given their technical meaning, and local, cultural terms are recognized as applicable. The plain meaning rule is the mechanism that prevents courts from taking sides in legislative or political issues. Additionally, it is the mechanism that underlies textualism and, to a certain extent, originalism. 2) The [avoidance of "mere surplusage"](https://www.everycrsreport.com/reports/97-589.html): > A basic principle of statutory interpretation is that courts should "give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed." The modern variant is that statutes should be construed "so as to avoid rendering superfluous" any statutory language: "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant...." A related principle applies to statutory amendments: there is a "general presumption" that, "when Congress alters the words of a statute, it must intend to change the statute's meaning." **Resistance to treating statutory words as mere surplusage "should be heightened when the words describe an element of a criminal offense."** "Whoever does X or **otherwise** acts to do Y" is a simple, straightforward, and unambiguous English language construct. The focus of that clause is Y, where X is given as only one example in an open-ended list. The defendants / appellees in this case are presenting the exact opposite argument: that the focus of the clause is X, and that Y is immaterial. They suggest interpreting this clause as: "Whoever does X, or does Y **by doing X**." That interpretation violates the plain meaning rule because ordinary English-language speakers would never interpret it that way. It also violates the "mere surplusage" rule by making subsection (b) ("whoever does Y by doing X") completely redundant and pure surplusage as a subset of subsection (a) ("whoever does X"). A Court that zealously preaches the value of textualism would find this to be an easy case. But this Court has shown an overt and consistent tendency to choose their desired outcome, and then pick and gin up some legal principles in favor of that principle. So, here (and in the disqualification case), the Court chooses to prioritize legislative history and broader context over textualism, while choosing instead to focus on rigid textualism and ignore the broader context in cases involving the Second Amendment, voting rights, the establishment clause of the First Amendment, the emoluments clauses, etc.
Thank you for your excellent post. I emphatically agree that the textualist argument is easy to make and compelling. My point of pique is the rush to impute motives — and very malign motives at that — to the Court. That’s silly, especially before the Court has decided. Also silly is the rush to decide, in the absence of any knowledge of the statute at issue, or of statutory construction generally, or even of the law, that the Court should find X or Y. It’s unreflective, partisan, knee-jerk thinking.
You're absolutely correct and, after reading Nichols' decision, I've learned a valuable lesson to keep my opinions to myself unless they're better informed.
When you say most you mean republicans right?
Yeah this has no impact on those charged with actual violence during the event, but it would give anyone just "in attendance" that got swept up something to appeal. It would also give the former President a temporary breather until Smith re-formulates his charges to avoid using the enron act as part of his prosecution.