United States v. Andries ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal Action No.: 21-93 (RC)
:
JOHN D. ANDRIES, : Re Document No.: 20
:
Defendant. :
MEMORANDUM OPINION
DENYING DEFENDANT’S MOTION TO DISMISS COUNTS I, II, AND III OF THE SUPERSEDING
INDICTMENT
I. INTRODUCTION
Defendant John Andries is one of many charged with committing federal crimes during
the breach of the United States Capitol on January 6, 2021. He moves to dismiss part of the
Superseding Indictment filed against him on the ground that three of the charged counts are
legally deficient. Count I alleges that Andries obstructed an “official proceeding” in violation of
18 U.S.C. § 1512(c)(2), but Andries says the January 6 joint session of Congress to count and
certify the electoral votes was not an official proceeding within the meaning of the statute.
Alternatively, he argues that 18 U.S.C. § 1512(c)(2) is unconstitutionally vague under the Due
Process Clause of the Fifth Amendment. Next, he claims that Counts II and III, which allege
various unlawful activities in a restricted area that the Vice President was “temporarily visiting”
in violation of 18 U.S.C. § 1752, must be dismissed because the Capitol Police (rather than the
Secret Service) restricted the Capitol grounds on January 6 and because then-Vice President
Pence was not “temporarily visiting” the Capitol that day. Andries’s as-applied vagueness
challenge to § 1512(c)(2) is premature at the motion-to-dismiss stage, and each of his other
claims is incorrect as a matter of law. The Court denies Andries’s motion to dismiss Counts I, II,
and III of the Superseding Indictment.
II. BACKGROUND1
The Twelfth Amendment to the United States Constitution requires the President of the
Senate—a position held by the Vice President, U.S. Const. art. I, § 3, cl. 4—to receive lists
recording the votes of the Electoral College for President and to open and count them in the
presence of the Senate and the House of Representatives. U.S. Const. amend. XII. In the
Electoral Count Act of 1887, Congress added some detail to this constitutional procedure. That
statute requires the Senate and House to gather in the Hall of the House of Representatives at
1:00 p.m. on the sixth day of January after each meeting of the electors. 3 U.S.C. § 15. The
President of the Senate then must open each state’s certificate reflecting its electoral vote and
announce the state’s vote. Id. Members of Congress may object to any state’s vote in writing.
Id. If at least one member of the House and one Senator sign an objection, the Senate and House
gather separately to consider it. Id. An individual Senator or Member of the House may speak
for up to five minutes regarding the objection; in all events debate on an objection may last no
more than two hours in each House. Id. § 17. The statute provides for the scope and disposition
of various potential objections; for example, “no electoral vote or votes from any State which
shall have been regularly given by electors whose appointment has been lawfully certified to
1
Other than those taken from the Superseding Indictment, the facts recounted in this
section are for background only. The Court does not rely on them for its legal analysis of
Defendant’s Motion to Dismiss, which must turn only on “the four corners of the indictment.”
United States v. Montgomery, No. CR 21-46, 2021 WL 6134591, at *2 n.1 (D.D.C. Dec. 28,
2021) (citation omitted). Nor does the Court purport to find any facts; that task will rest with the
jury. Id. As explained below, the Court will assume for purposes of its legal analysis of
Defendant’s Motion to Dismiss that the facts alleged in the Superseding Indictment are true.
2
according to [the statute] from which but one return has been received shall be rejected, but the
two Houses concurrently may reject the vote or votes when they agree that such vote or votes
have not been so regularly given by electors whose appointment has been so certified.” Id. § 15.
At 1:00 p.m. on January 6, 2021, both houses of Congress, as well as then-Vice President
Mike Pence, convened in a joint session in the Hall of the House of Representatives to carry out
their constitutional and statutory duty “to certify the Electoral College vote in the 2020
presidential election.” Montgomery, 2021 WL 6134591, at *2. Vice President Pence was, of
course, under Secret Service Protection. Gov’t’s Opp’n Def.’s Mot. Dismiss Counts One, Two,
and Three of the Superseding Indictment at 2 (“Opp’n”), ECF No. 22. And the United States
Capitol Police, the agency responsible for security at the United States Capitol and its grounds,
had cordoned off an area around the Capitol with metal barriers, fencing, and signs saying that
the area was closed. Opp’n at 2–3; see Superseding Indictment at 2, ECF No. 15.
About thirty minutes into the session, certain members of Congress lodged an objection
to Arizona’s vote; the Senate withdrew to its chambers so that the two Houses could consider the
objection. Montgomery, 2021 WL 6134591, at *2. Meanwhile, then-President Trump and others
spoke at a “Stop the Steal” rally in protest of the election results. See United States v. Munchel,
991 F.3d 1273, 1275 (D.C. Cir. 2021). As is by now well known, a crowd, including attendees
of the rally, advanced toward the Capitol. See Montgomery, 2021 WL 6134591, at *2. A large
group massed on the steps outside the Capitol building. Opp’n at 3.
According to a grand jury’s Superseding Indictment, Defendant John D. Andries was
among this crowd. Superseding Indictment at 1–3. The government alleges that Andries entered
the restricted Capitol area and engaged in disorderly or disruptive conduct there aimed at
disrupting the certification proceeding. Id. Beyond that, the Superseding Indictment provides
3
little detail about exactly what Andries allegedly did at the Capitol on January 6. It does,
however, charge him with obstruction of an official proceeding and aiding and abetting in
violation of 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 2 (Count I); entering and remaining in a
restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count II); disorderly and
disruptive conduct in a restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(2)
(Count III); disorderly conduct in a Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(D)
(Count IV); and parading, demonstrating, or picketing in a Capitol building, in violation of 40
U.S.C. § 5104(e)(2)(G) (Count V). Id.Andries moved to dismiss Count I, Count II, and Count III under Federal Rule of
Criminal Procedure Rule 12(b)(3)(v). Def.’s Mot. Dismiss Counts One, Two, and Three of the
Superseding Indictment (“Def.’s Mot. Dismiss”), ECF No. 20. The Court heard oral argument
on October 5, 2021, and the parties filed several supplemental briefs adding or expanding upon
arguments thereafter.
III. LEGAL STANDARD
“An indictment’s main purpose is to inform the defendant of the nature of the accusation
against him.” United States v. Ballestas, 795 F.3d 138, 148–49 (D.C. Cir. 2015) (cleaned up).
Thus, the Federal Rules of Criminal Procedure require only that the indictment include “a plain,
concise, and definite written statement of the essential facts constituting the offense charged.”
Fed. R. Crim. P. 7(c). A defendant may move to dismiss counts of an indictment for “failure to
state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). A court considering such a motion must
“assume[] the truth of th[e] factual allegations” in the indictment. Ballestas, 795 F.3d at 149.
Indeed, the court’s review is limited to “the four corners of the indictment.” United States v.
Ring, 628 F. Supp. 2d 195, 204 (D.D.C. 2009). This limitation “affords deference to the
4
‘fundamental role of the grand jury.’” United States v. Mostofsky, No. CR 21-138, 2021 WL
6049891, at *2 (D.D.C. Dec. 21, 2021) (quoting Ballestas, 795 F.3d at 148). “Adherence to the
language of the indictment is essential because the Fifth Amendment requires that criminal
prosecutions be limited to the unique allegations of the indictments returned by the grand jury.”
United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). “A court accordingly cabins its
analysis to the face of the indictment and, more specifically, the language used to charge the
crimes.” Mostofsky, 2021 WL 6049891, at *2 (cleaned up).
IV. ANALYSIS
A. Count I, for Violation of 18 U.S.C. § 1512(c)(2), States an Offense
Count I charges that Andries “attempted to, and did, corruptly obstruct, influence, and
impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’s
certification of the Electoral College vote as set out in the Twelfth Amendment of the
Constitution of the United States and 3 U.S.C. §§ 15-18.” Superseding Indictment at 1.
According to the government, this violated 18 U.S.C. § 1512(c)(2), which 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.
18 U.S.C. § 1512 (emphasis added). “Official proceeding” is defined in a subsequent section to
include “a proceeding before Congress”:
(a) As used in sections 1512 and 1513 of this title and in this section--
(1) the term “official proceeding” means--
5
(A) a proceeding before a judge or court of the United States, a
United States magistrate judge, a bankruptcy judge, a judge of the
United States Tax Court, a special trial judge of the Tax Court, a
judge of the United States Court of Federal Claims, or a Federal
grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is
authorized by law; or
(D) a proceeding involving the business of insurance whose
activities affect interstate commerce before any insurance regulatory
official or agency or any agent or examiner appointed by such
official or agency to examine the affairs of any person engaged in
the business of insurance whose activities affect interstate
commerce . . . .
18 U.S.C. § 1515(a) (emphasis added). Andries advances two reasons for his claim that Count I
fails to state an offense. First, he says that “[t]he Electoral Count on January 6 is not an ‘official
proceeding,’” and, therefore, any obstruction of the meeting would be beyond the scope of 18
U.S.C. § 1512(c)(2). Def.’s Mot. Dismiss at 6–7 (cleaned up). Second, he argues that “even if
the Court determines that the Electoral Count is an ‘Official Proceeding,’ 18 U.S.C. §1512(c)(2)
is unconstitutionally vague as applied . . . .” Id.at 9 (cleaned up); see United States v. Eshetu,
863 F.3d 946, 952 (D.C. Cir. 2017), vacated on other grounds, 898 F.3d 36 (D.C. Cir. 2018)
(“The defense of failure of an indictment to charge an offense includes the claim that the statute
apparently creating the offense is unconstitutional.”). The Court rejects the statutory argument;
it also rejects the vagueness argument to the extent it challenges the statute on its face. To the
extent Andries raises an as-applied vagueness challenge, the Court holds that the claim is
premature because its resolution would depend on facts not included in the Superseding
Indictment. Therefore, the Court denies Andries’s motion to dismiss Count I.
6
1. The Electoral Count is an “Official Proceeding”
Andries’s argument that the January 6 congressional count of electoral votes was not an
“official proceeding” rests, as a first step, on assertions regarding 18 U.S.C. § 1512(c)(2)’s
purpose and legislative history. Andries notes that Congress added § 1512(c)(2) as part of the
Sarbanes-Oxley Act of 2002, “legislation designed to protect investors and restore trust in
financial markets following the collapse of Enron Corporation,” which involved Enron’s
auditor’s “systematic[] destr[uction] [of] potentially incriminating documents” related to
accounting fraud.2 Yates v. United States, 574 U.S. 528, 532, 536–37 (2015); see United States
v. Caldwell, No. 21-CR-28, 2021 WL 6062718, at *5 (D.D.C. Dec. 20, 2021); Def.’s Mot.
Dismiss at 4–5. Andries further relies upon cases holding that a definition of “official
proceeding” separate from the “proceeding before the Congress” definition that applies here—“a
proceeding before a Federal Government agency which is authorized by law,” 18 U.S.C.
§ 1515(a)(1)(C)—does or does not encompass various types of federal agency investigations
depending on the investigation’s level of formality. Compare United States v. Perez, 575 F.3d
164, 169 (2d Cir. 2009) (Bureau of Prison review panel procedure which involved the
determination of whether there had been a policy violation, the issuance of findings, and a
decision on whether to refer the matter to senior authorities, and was therefore “quasi-
adjudicative,” was “sufficiently formal” to constitute an “official proceeding”) with United States
v. Ramos, 537 F.3d 439, 462–63 (5th Cir. 2008) (informal Border Patrol internal investigation
2
Notably, however, § 1515, the section defining “official proceeding” to mean, among
other things, “a proceeding before the Congress,” “dates to the Victim and Witness Protection
Act of 1982, Pub. L. No. 92-291, § 4(a), 96 Stat. 1248, 1252.” United States v. McHugh, No. CR
21-453, 2022 WL 296304, at *8 n.9 (D.D.C. Feb. 1, 2022). Therefore, “Sarbanes Oxley is
almost entirely irrelevant to the interpretation of the phrase ‘a proceeding before the Congress.’”
Id.7
was not an “official proceeding” because “§ 1515(a)(1)(C) uses the preposition ‘before’ in
connection with the term ‘Federal Government agency,’ which implies that an ‘official
proceeding’ involves some formal convocation of the agency in which parties are directed to
appear, instead of any informal investigation conducted by any member of the agency”) and
United States v. Ermoian, 752 F.3d 1165, 1171–72 (9th Cir. 2013) (FBI investigation was not an
“official proceeding” in part because various surrounding sections of § 1512 refer to preventing
witness testimony or attendance, preventing production of records or documents, and being
absent from a proceeding to which one has been summoned by legal process, all of which
“implie[d]” to the court “that some formal hearing before a tribunal is contemplated” in the term
“official proceeding”); see Def.’s Mot. Dismiss at 5–6.
From this context, Andries concludes that § 1512(c)(2) is a “‘witness tampering’ statute”
such that “‘official proceeding before the Congress’ contemplates the same type of ‘adversarial
nature’ as court proceedings where there is a potential for witnesses to be influenced or
documents to be destroyed”; in other words, “the obstruction must concern a proceeding
involving adjudicative or at least ‘quasi-adjudicative responsibilities.’” Def.’s Mot Dismiss at 5–
6 (quoting Perez, 575 F.3d at 169). In the second step of his argument, Andries claims that the
electoral count is a ceremonial formality, rather than “an adjudicative proceeding involving
witness testimony and evidence.” Def.’s Mot. Dismiss at 7.
Andries’s conclusion that an “official proceeding” must be an adjudicative proceeding
skips several key stages of any sound interpretive analysis. For one thing, it does not begin with
the text of the statute. Recall that Congress defined “official proceeding” as used in § 1512(c)(2)
to mean, in relevant part, “a proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B). The
term “‘proceeding’ may be used . . . in a general sense to mean ‘[t]he carrying on of an action or
8
series of actions; action, course of action; conduct, behavior.” Ermoian, 752 F.3d at 1169 (citing
Proceeding, Oxford English Dictionary, https://www.oed.com/view/Entry/151779?
rskey=A9Qmdo&result=2&isAdvanced=false#eid (last visited Mar. 14, 2022)). The government
suggests that this broad lay definition might be appropriate, Opp’n at 7–8, but the Court
concludes that the narrower legal definition is a better interpretive fit. Ermoian, 752 F.3d at
1170 (holding that the legal definition applies based on the modifier “official” and on the
statute’s repeated use of terms associated with the legal sphere, including “Congress”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012) (“[W]hen
law is the subject, ordinary legal meaning is to be expected, which often differs from common
meaning.”). In the legal sense, “proceeding” means “[t]he business conducted by a court or other
official body; a hearing.” Proceeding, Black’s Law Dictionary (11th ed. 2019).3 Congress,
when convened in the form of the joint electoral count session mandated by the Electoral Count
Act, is plainly an “official body”; the certification of electoral votes is its “business” assigned by
the Electoral Count Act and the Twelfth Amendment. Caldwell, 2021 WL 6062718, at *4.
Of course, ascertaining the meaning of “proceeding” takes us only so far; the statute also
requires that the proceeding be “before the Congress,” 18 U.S.C. § 1515(a)(1)(B) (emphasis
added), and of course, that the proceeding be “official,” id. § 1512(c)(2). These modifiers
reinforce the application of the narrow definition of “proceeding” and clarify the requirement
3
To be sure, there are legal definitions of proceeding that are narrower still, such as
“[t]he regular and orderly progression of a lawsuit, including all acts and events between the time
of commencement and the entry of judgment” or “[a]ny procedural means for seeking redress
from a tribunal or agency.” Proceeding, Black’s Law Dictionary (11th ed. 2019). But these
plainly cannot have been the definitions Congress had in mind when it wrote of “a proceeding
before the Congress,” because Congress does not adjudicate lawsuits, is not an “agency,” and
does not hold any “tribunal[s]” (with the possible limited exceptions of impeachment and
judging the qualifications of its own members, discussed below).
9
that the relevant proceeding be a “formal convocation” of the relevant entity (here Congress), as
opposed to some informal action in which the entity or its members engage. Cf. Ramos, 537
F.3d at 562 (interpreting the phrase “a proceeding before a Federal Government agency which is
authorized by law,” 18 U.S.C. § 1515(a)(1)(C)); see Montgomery, 2021 WL 6134591, at *5
(relying in part on the fact that “official proceeding before the Congress” appears as part of a
definitional list referring to proceedings before a judge or court, a federal agency, and insurance
regulatory agencies and examiners); United States v. Sandlin, No. 21-CR-88, 2021 WL 5865006,
at *3 (D.D.C. Dec. 10, 2021) (citing Official, def. 5, Oxford English Dictionary (3d ed. 2004) to
note that “official” means “formal” and “ceremonious”). So, to sum up, a “proceeding before the
Congress” is a formal convocation at which Congress has convened to conduct its official
business.
Thus, a vote on pending legislation is likely “a proceeding before the Congress,” as is a
committee hearing at which sworn witnesses appear; an individual member’s hosting of a
meeting of constituents in her office might not be. The Court need not delineate the precise
contours of formality necessary to constitute an official proceeding to resolve this case, nor need
it decide precisely what does and does not count as Congress’s official business: any reasonable
understanding of these concepts would include the joint electoral count session. As Judge
Friedrich recently explained, there is a wealth of indicators that the electoral count session is a
formal convocation for the carrying out of Congress’s official business:
The Constitution requires the Vice President, acting as President of the Senate, to
“open all the certificates” of the electoral results “in the presence of the Senate and
House of Representatives.” U.S. Const., art. II, § 1, cl. 3; id. amend. XII. The
“votes shall then be counted.” Id. The Electoral Count Act, Pub. L. No. 45-90, 24
Stat. 373 (1887), specifies the procedures to be followed. A Joint Session of the
Senate and the House of Representatives must meet “at the hour of 1 o’clock in the
afternoon” on “the sixth day of January succeeding every meeting of the electors.”
3 U.S.C. § 15. The presiding officer (the President of the Senate) opens the
10
certificates of the electoral votes and hands them to tellers appointed by each
House, who make a list of the votes. Id. When announcing each certificate, the
presiding officer calls for objections, if any, which must be made in writing and
signed by both one Senator and one Member of the House of Representatives. Id.Thereafter, the Senate and the House withdraw to consider each objection, and
“each Senator and Representative may speak to such objection or question five
minutes, and not more than once.” Id. § 17. The presiding officer must cut the
debate off after two hours. Id. He also has the “power to preserve order” during
the session. Id. § 18. The Act details where the presiding officer, the Speaker, the
Senators, the Representatives, the tellers, and others are to sit in the chamber. Id.
§ 16. And it commands that the session “not be dissolved until the count of electoral
votes shall be completed and the result declared.” Id.
Sandlin, 2021 WL 5865006, at *4.4
4
Judge Bates recently concluded that the word “before” does more than denote a formal
convocation; it also means that “a second party must be integrally involved in the ‘proceeding’ in
order for it to be ‘before’ the Congress.” McHugh, 2022 WL 296304, at *5 (concluding that the
January 6th certification met this qualification, because though not physically present, the
members of the Electoral College are external parties integrally involved in the proceeding
because their votes are certified at the proceeding). Judge Bates’s well-reasoned opinion relied
in part on Ramos, 537 F.3d at 462–463 (the use of “before” “implies that an ‘official proceeding’
involves some formal convocation of the agency in which parties are directed to appear”
(emphasis added) and Ermoian, 752 F.3d at 1171 (“The use of the preposition ‘before’ suggests
an appearance in front of the agency sitting as a tribunal . . . . [A] criminal investigation does not
occur ‘before a Federal Government agency’ like a hearing or trial might; it is conducted ‘by’ the
agency in the field”). However persuasive this interpretation of “before” may have been in the
context of the “proceeding before a Federal Government agency which is authorized by law”
definition at issue in Ramos and Ermoian, the Court concludes that Congress could not have
intended “before” to require a second party external to Congress in the context of “a proceeding
before the Congress.” This is because, as Judge Moss has explained, Congress routinely uses the
word “before” to describe congressional proceedings that do not involve an external party:
To take an example from the year Congress enacted Section 1515, a markup was
held “Before the Committee on Foreign Affairs” on six resolutions concerning
human rights in the former Soviet Union. H. Res. 200; H. Con. Res. 218; H.J. Res.
230; H. Con. Res. 205; H.J. Res. 373; H. Res. 269: Markup Before the H. Comm.
on Foreign Affs. and its Subcomm. on Human Rts. & Int’l Orgs., 97th Cong. I
(1982) (emphasis added). Although that proceeding took place before the
Committee, “no witnesses” appeared. Id. at III. That example, moreover, is far
from unusual; proceedings often occur “before” congressional committees and
without witnesses or “parties.” See, e.g., Markup to Consider Three Joint
Resolutions Relating to Lebanon and the War Powers Resolution: S.J. Res. 159;
S.J. Res. 163; and S.J. Res. 166: Hearing Before the S. Comm. on Foreign Rels.,
98th Cong. I (1983); NASA Management Reorganization Act of 1993: Markups
Before the H. Comm. on Sci., Space & Tech., 103rd Cong. I (1993).
11
Notably, this analysis of the text and immediate context yields nothing to suggest that “a
proceeding before the Congress” must be adjudicative in nature. Indeed, such a requirement
would be “inconsistent” with the text “proceeding before the Congress.” McHugh, 2022 WL
296304, at *8. The reason is simple: Congress hardly ever adjudicates. See Adjudicate, Oxford
English Dictionary, https://www.oed.com/view/Entry/2456?redirectedFrom=adjudicate#eid (last
visited Mar. 24, 2022) (defined most broadly, “adjudicate” means “[t]o settle, determine, or
decide judicially, or by a similar legal or official process. Also more generally: to judge; to act
as a referee in.”). Congress gathers information and then votes on legislation; it can hardly be
said to “adjudicate” the bills before it. “As a matter of separation of powers, that is not what
Congress does. To be sure, Congress’s legislative powers include the implicit authority to
summon witnesses, to elicit testimony, and to investigate facts about the world. In other words,
‘each House has power to secure needed information in order to legislate.’” Montgomery, 2021
WL 6134591, at *7 (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020)
(emphasis added in original and internal quotation marks omitted)). “Section 1515(a)(1) reaches
all three branches of government, and the definition of ‘official proceeding’ is properly
understood in the unique context of each branch.” Id. Thus, even assuming the soundness of
conclusions like those in Perez, 575 F.3d at 169, i.e. that “quasi-adjudicative responsibilities” are
at least sufficient to meet the § 1515(a)(1)(C) definition relevant to executive branch agencies—
whose responsibilities frequently do involve adjudication—they cannot fully define “proceeding
before the Congress” in § 1515(a)(1)(B). Cf. United States v. Kelley, 36 F.3d 1118, 1127–28
(D.C. Cir. 1994) (holding that an administrative investigation was a “proceeding” within the
Montgomery, 2021 WL 6134591, at *8. The Court agrees with Judge Moss that “Congress
undoubtedly understood this common usage—that is, its own usage—when it enacted
Section 1515(a)(1).” Id.12
meaning of 18 U.S.C. § 1505 because the agency inspector had “some adjudicative power” in
that he could “issue subpoenas and . . . compel sworn testimony,” and assuming without deciding
that “proceeding” in § 1505 and in § 1512 carried the same meaning). With the exception of
those rare instances in which Congress might be said to adjudicate, namely impeachments and
when judging the qualifications of its own members, Montgomery, 2021 WL 6134591, at *7
(citing U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6; id. art. I, § 5, cl. 1), understanding
“proceeding before the Congress” to refer solely to adjudicative proceedings would make the
definition “something close to a null set,” McHugh, 2022 WL 296304, at *8. If that were what
Congress wanted, it would have been far easier simply to prohibit obstruction of impeachment or
qualification proceedings. The Court will not assume that Congress intended to enact such a
narrow provision by using such broad language.
Even a softer read of Andries’s proposed interpretation—perhaps a “proceeding before
the Congress” need not be adjudicative in the sense just described, but still must involve a
proceeding “where there is a potential for witnesses to be influenced or documents to be
destroyed,” Def.’s Mot. Dismiss at 5—finds no support in the text, and weakens further when
faced with broader statutory context. Andries says that an “official proceeding,” in the
congressional context, must be akin to a hearing, and that the electoral count does not qualify
because it is “ceremonial and predetermined in nature.” Def.’s Second Suppl. Br. Supp. Mot.
Dismiss Counts One, Two, and Three of the Superseding Indictment at 2 (“Def.’s Second Suppl.
Br.”), ECF No. 39. But this emphasis on Congress’s and the Vice President’s lack of discretion
in certifying the electoral vote does not answer the question asked by the Court’s interpretation
of “proceeding before the Congress” to mean a formal convocation of Congress for the purpose
of conducting its official business. Congress’s electoral count authority surely is limited, see 3
13
U.S.C. § 15, but this does not change the fact that the electoral count is a constitutionally and
statutorily mandated formal convocation of a joint session of Congress for the purpose of
conducting the official, constitutionally-assigned business of certifying the electoral vote.
Andries relies heavily on the Black’s Law Dictionary definition of “proceeding” quoted
above: “[t]he business conducted by a court or other official body; a hearing.” Proceeding,
Black’s Law Dictionary (11th ed. 2019) (emphasis added). But this definition lists a hearing as
one example of a broader category of official body business; “a hearing” is not the entire
definition. Contrast Black’s Law Dictionary’s separate entry for “Adjudicatory Proceeding,”
which reads entirely “See adjudication hearing under [the entry for] HEARING.” Adjudicatory
Proceeding, Black’s Law Dictionary (11th ed. 2019); see Hearing, Black’s Law Dictionary (11th
ed. 2019) (defining “adjudication hearing” to include certain types of administrative agency,
child abuse, and juvenile delinquency hearings). This structure makes clear that not every
“proceeding” is an adjudication or a hearing. Andries also notes that 3 U.S.C. § 15 describes the
electoral count as a “meet[ing],” which to him suggests a category distinct from “proceeding.”
Def.’s Second Suppl. Br. at 3. But as the Court has explained, “a proceeding before Congress” is
a formal convocation of Congress for the purpose of conducting official business—in other
words, a type of meeting. Finally, Andries briefly points out that the Constitution uses the term
“proceeding” in relation to Congress only to refer to actions taken by individual Houses, not the
House and Senate together. Id., U.S. Const. art. I, § 5, cl. 2–3 (“Each House may determine the
Rules of its Proceedings . . . Each House shall keep a Journal of its Proceedings”). But nothing
about the Constitution’s usage suggests that “proceeding” must refer exclusively to actions solely
within one House, rather than being merely inclusive of them.
14
Unlike adjudications, Congress does frequently hold investigative hearings at which
witnesses appear. But a nearby provision shows that Congress would have known how to limit
its definition to such proceedings if it wished. Section 1505 criminalizes the obstruction of “the
due and proper exercise of the power of inquiry under which an inquiry or investigation is being
had by either the House, or any committee of either House or any joint committee of the
Congress.” 18 U.S.C. § 1505; see Caldwell, 2021 WL 6062718, at *5 (noting that “[t]his has
been part of the U.S. Code since at least 1962”). But instead of drafting a provision targeted at
investigative hearings for inclusion in § 1515(a)(1) (and, by reference, § 1512(c)), Congress used
the much broader terms “official proceeding” and “proceeding before the Congress.” 18 U.S.C.
§§ 1512(c), 1515. The Court will not limit the statute in a way Congress chose not to. See
Caldwell, 2021 WL 6062718, at *5; United States v. Nordean, No. CR 21-175, 2021 WL
6134595, at *5 (D.D.C. Dec. 28, 2021); Montgomery, 2021 WL 6134591, at *6.
In sum, the Court holds that a “proceeding before the Congress,” 18 U.S.C.
§ 1515(a)(1)(C), extends to formal convocations of Congress for the purpose of conducting
official business, see Montgomery, 2021 WL 6134591, at *9, and that the January 6th, 2021 joint
session of Congress to certify the electoral vote was such a proceeding. Andries’s assertions
about purpose and legislative history are not persuasive; even if they were, they could not
override the unambiguous plain meaning of the statute in context.5 Because the Court does not
agree with Andries that a “proceeding before the Congress” must be adjudicative in nature, the
5
Andries briefly alludes to the rule of lenity, Def.’s Mot. Dismiss at 2, but the Court’s
conclusion that the terms “official proceeding” and “proceeding before the Congress”
unambiguously do not require the sort of adjudication or hearing Andries envisions precludes
application of that rule here. The rule of lenity “only applies if, after considering text, structure,
history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that
the Court must simply guess as to what Congress intended.” Nordean, 2021 WL 6134595 at *12
(quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)).
15
Court need not address the second step of Andries’s argument, that the electoral count
proceeding is not adjudicative. The Court does note, however, that other judges in this District
have confronted similar arguments and held, as an alternative to concluding that a “proceeding
before the Congress” need not be adjudicative, that the electoral count is in some sense
adjudicative because it may involve the consideration of and decisions on disputed objections.
Caldwell, 2021 WL 6062718, at *7; Nordean, 2021 WL 6134595, at *6. The Court denies
Andries’s motion to dismiss Count I to the extent it relies on the theory that the January 6th
electoral count was not an “official proceeding.”
2. Section 1512(c)(2) is Not Void for Vagueness under the Fifth Amendment, and Andries’s As-
Applied Vagueness Claim is Premature
Andries alternatively attacks the Count I charge on the ground that the terms “corruptly,”
“otherwise obstructs, influences, or impedes,” and “official proceeding” in 18 U.S.C.
§ 1512(c)(2) are unconstitutionally vague under the Due Process Clause of the Fifth Amendment.
Def.’s Mot. Dismiss at 9–14. The Fifth Amendment imposes a clarity requirement on criminal
statutes, requiring Congress to “give ordinary people fair notice of the conduct [a law] punishes”
and to include sufficient standards so that the law does not “invite[] arbitrary enforcement.”
Johnson v. United States, 576 U.S. 591, 595 (2015). “[T]he touchstone is whether the statute,
either standing alone or as construed, made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997) (emphasis
added). Thus, “clarity at the requisite level may be supplied by judicial gloss on an otherwise
uncertain statute.” Lanier, 520 U.S. at 266; see also United States v. Morison, 844 F.2d 1057,
1071 (4th Cir. 1988) (“[A]ll vagueness may be corrected by judicial construction which narrows
the sweep of the statute within the range of reasonable certainty.”). Moreover, the Constitution
does not require absolute precision of language. The Fifth Amendment is “not concerned with
16
vagueness in the sense that the term requires a person to conform his conduct to an imprecise but
comprehensible normative standard, whose satisfaction may vary depending upon whom you
ask. Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal
texts, its meaning specifies no standard of conduct at all.” United States v. Bronstein, 849 F.3d
1101, 1107 (D.C. Cir. 2017) (cleaned up). “[T]he ‘mere fact that close cases can be envisioned’
does not ‘render[ ] a statute vague’—‘[w]hat renders a statute vague is not the possibility that it
will sometimes be difficult to determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact is.’” Montgomery, 2021 WL
6134591, at *18 (quoting United States v. Williams, 553 U.S. 285, 305–06 (2008)).
Andries has briefed only an as-applied vagueness claim. Def.’s Mot. Dismiss at 9; Def.’s
Second Suppl. Br. at 5; Def.’s Reply Gov’t’s Resp. Mot. Dismiss Counts One, Two, and Three
of the Superseding Indictment at 4–7 (“Reply”), ECF No. 23. At oral argument, however,
defense counsel asserted that 18 U.S.C. § 1512(c)(2) was vague on its face. As explained below,
the Court concludes that an as-applied challenge is premature at the motion-to-dismiss stage in
this case. The Court further holds that Andries forfeited his opportunity to bring a facial
vagueness challenge by failing to brief such a claim. See United States v. Pole, No. 09-cr-354,
2021 WL 5796518, at *6 (D.D.C. Dec. 7, 2021); United States v. Johnson, No. 02-cr-310, 2021
WL 3737681, at *4 (D.D.C. Aug. 24, 2021). Out of an abundance of caution, and to avoid the
harshness of relying on forfeiture alone to deny a criminal defendant the chance to argue that he
is being prosecuted under an unconstitutional statute, the Court alternatively addresses the merits
of the facial vagueness claim and holds that it fails. Accordingly, the Court denies Andries’s
motion to dismiss Count I of the Superseding Indictment.
17
The as-applied vagueness challenge is premature. Recall that the Court’s review at the
Rule 12 motion-to-dismiss stage is limited to ‘the four corners of the indictment,’” Ring, 628 F.
Supp. 2d at 204, and that the indictment in this case is not a “speaking indictment.” It does not
tell us exactly how the government intends to prove that Andries “obstruct[ed], influenc[ed] and
imped[ed]” Congress’s certification of the electoral vote6 or how the government hopes to prove
that he did so “corruptly.” Superseding Indictment at 1; 18 U.S.C. § 1512(c)(2). “For an as-
applied challenge, an ‘implicit requirement’ is ‘that it must be clear what the defendant did.’”
United States v. Reffitt, No. 21-cr-32, Dkt. No. 81, slip op. at 5 (D.D.C. Dec. 29, 2021) (quoting
United States v. Raniere, 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019)). Count I alleges what
Andries did only in the broadest sense. It says he “attempted to, and did, corruptly obstruct,
influence, and impede an official proceeding, that is, a proceeding before Congress, specifically,
Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the
Constitution of the United States and 3 U.S.C. §§ 15-18.” Superseding Indictment at 1. In its
brief opposing the motion to dismiss, the government contends, without citation, that Andries
entered the Capitol through a broken window, pulled or attempted to pull the fire alarm,
“confronted law enforcement officers inside the building[,] and refused to leave the Capitol
grounds, forcing officers to physically remove him.” Opp’n at 4–5, 19. But these details do not
help an as-applied analysis at this stage, as the Court may not consider unsupported allegations in
a brief when deciding a Rule 12 motion to dismiss. See Reffitt, slip op. at 6 (refusing to consider
government’s claim in a brief that the defendant “charged at officers with the intent to obstruct”
6
To the extent Andries’s as-applied challenge asserts that the term “official proceeding”
is unconstitutionally vague, it is ripe and fails on the merits. See Def.’s Mot. Dismiss at 10. As
the Court has explained, the January 6th electoral count Andries is charged with obstructing
unambiguously was an “official proceeding.”
18
the electoral count proceeding when evaluating a motion-to-dismiss as-applied vagueness
challenge to a § 1512(c)(2) charge). Put differently, Andries disputes at least some of the
allegations found in the government’s brief. Def.’s Second Suppl. Br. at 7 n.3 (“[T]here is no
evidence that [Andries] pulled the fire alarm.”). The Court must accept the allegations in the
Superseding Indictment as true for purposes of this Rule 12 motion, but it may not replace the
jury as the decider of factual disputes between the parties. See Ballestas, 795 F.3d at 149.
The facts that the Court must accept as true at this stage—those in the Superseding
Indictment—are insufficient to resolve Andries’s as-applied vagueness challenge one way or the
other. As the Court will explain, 18 U.S.C. § 1512(c)(2) applies with clarity to a certain range of
conduct, but “there may be scenarios at the edges that present vagueness problems.” Sandlin,
2021 WL 5865006, at *10. Without any specific facts in the Superseding Indictment, the Court
cannot evaluate whether Andries’s conduct fell closer to the clear core or the vaguer edges of the
statute’s coverage, and, accordingly, whether he had “fair notice,” Johnson, 576 U.S. at 596, that
his conduct violated § 1512(c)(2). “Rule 12 permits pretrial resolution of a motion to dismiss the
indictment only when trial of the facts surrounding the commission of the alleged offense would
be of no assistance in determining the validity of the defense.” Reffitt, slip op. at 6 (quoting
United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (Gorsuch, J.)). Because the Court
would need more facts to pass upon an as-applied vagueness challenge, it denies Andries’s as-
applied vagueness challenge to Count I as premature. Compare Sandlin, 2021 WL 5865006, at
*14 (reaching the merits of a motion-to-dismiss as-applied vagueness challenge to § 1512(c)(2)
charges where the indictment “allege[d] that the defendants engaged in advance planning,
forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others
to steal laptops and paperwork from the Senate Chamber”) with Reffitt, slip op. at 6 (denying a
19
motion-to-dismiss-as-applied vagueness challenge as premature because the court could not
determine whether the defendant had sufficient notice “based on the indictment alone,” which, as
supplemented by a Bill of Particulars, alleged only that the defendant violated § 1512(c)(2) “by
stopping, or attempting to stop, the [electoral count] proceeding from going forward on time,
with the members of Congress present and able to examine the electoral results”); see United
States v. Kettles, No. CR 16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (“In
considering [the defendant’s] motion to dismiss the indictment . . . the court cannot make any
determinations regarding the facts underlying the offense . . . The court cannot determine the
nature and extent of [the defendant’s] conduct in this case and, therefore, also cannot determine
whether [18 U.S.C.] § 1591(a) is void for vagueness as applied to that conduct.”), aff’d, 970 F.3d
637 (6th Cir. 2020); Raniere, 384 F. Supp. 3d at 320 (holding that the defendant had to “wait to
bring an as-applied vagueness challenge [to an 18 U.S.C. § 1591(a) charge] until the facts ha[d]
been established by evidence introduced at trial and the fact-finder ha[d] had an opportunity to
weigh in” (citation omitted)); United States v. Poulin, 588 F. Supp. 2d 58, 61–62 (D. Me. 2008)
(“The Court must dismiss the as applied motion to dismiss, since it relies on facts not alleged in
the Indictment and those facts constitutionally require resolution by a jury.”); Gov’t’s Resp.
Def.’s Second Suppl. Br. at 7, ECF No. 40 (requesting such a disposition in this case).
As an alternative to the Court’s holding that Andries forfeited the opportunity to present
a facial vagueness challenge, a facial challenge fails on the merits. It is difficult to mount a
successful facial challenge on vagueness grounds. For many years, a litigant could prevail on a
facial vagueness challenge only upon a showing that the law “is impermissibly vague in all of its
applications.” Vill. of Hoffman Ests. v. Flipside, Inc., 455 U.S. 489, 495 (1982). The Supreme
Court cast some doubt on this strict standard in Johnson v. United States when it highlighted
20
previous Supreme Court holdings to “contradict the theory that a vague provision is
constitutional merely because there is some conduct that clearly falls within the provision’s
grasp.” 576 U.S. at 602–03 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 89
(1921), which held that a law banning “unjust or unreasonable” grocery rates was void for
vagueness, even though one could surely imagine some rates that would be clearly unjust or
unreasonable, such as “charging someone a thousand dollars for a pound of sugar”). Thus,
Johnson held that “the existence of some” actions that “obviously” fell within the statutory
clause at issue in Johnson did not “establish the . . . clause’s constitutionality.” Id. at 603. The
D.C. Circuit has not “decid[ed] the full implications of Johnson.” United States Telecom Ass’n
v. FCC, 825 F.3d 674, 736 (D.C. Cir. 2016); see also Robinson v. District of Columbia, 234 F.
Supp. 3d 14, 19 (D.D.C. 2017). In one instance, the D.C. Circuit noted Johnson’s apparent
departure from the Hoffman standard, but went on to reject a facial vagueness challenge because
the claim fell “far short of the ‘impermissibly vague in all of its applications’” standard. Crooks
v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016) (emphasis added). Thus, to the extent Johnson
softened the Hoffman standard, the current standard holds that the mere existence of “some”
actions that “obviously” fall within a statute’s ambit does not establish its constitutionality. See
Johnson, 576 U.S. at 603. But if a statute clearly applies to a great many actions, it is not invalid
on its face. United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of
offenses to which the statute is directed is plainly within its terms, the statute will not be struck
down as vague even though marginal cases could be put where doubts might arise.”); see
Crooks, 845 F.3d at 417 (asking whether a challenged statute fell “far short” of the Hoffman
standard). Another way of understanding the current standard is to return to the first principles
of the vagueness doctrine: “[A] statute is unconstitutionally vague if, applying the rules for
21
interpreting legal texts, its meaning specifies no standard of conduct at all.” Bronstein, 849 F.3d
at 1107; see United States Telecom Ass’n, 825 F.3d at 736 (noting Johnson and holding that a
statute passed vagueness muster “even if [the court did] not apply Hoffman’s elevated bar for
facial challenges” because the statute “g[ave] sufficient notice to affected entities of the
prohibited conduct”).
As in Crooks, Andries’s vagueness challenge to § 1512(c)(2) not only fails to show that
the statute is impermissibly vague in all its applications, it “falls far short of” doing so. 845 F.3d
at 417. The Court need not tarry long over Andries’s argument that the term “official
proceeding” is unconstitutionally vague. As the Court has explained, the term has a
straightforward, readily discernible meaning, at least when defined by § 1515(a)(1)(B) to mean
“a proceeding before the Congress”: a formal convocation at which Congress has convened to
conduct its official business. Contrary to Andries’s suggestion in his brief, the fact that courts
such as those in Ramos and Ermoian have had to engage in interpretive analysis to determine
whether certain investigations qualify as official proceedings—and that this Court and others
have had to do so to determine whether the January 6th electoral count proceeding was an
official proceeding—does not render the statute vague. Def.’s Mot. Dismiss at 5, 11. “The need
to examine statutory language, determine its meaning, and apply it to a specific factual situation
is not evidence of a constitutionally defective statute—it is the ordinary work of judging in the
age of statutes.” McHugh, 2022 WL 296304, at *12 (citing Williams, 553 U.S. at 306).
Andries’s assertion that the phrase “otherwise obstructs, influences, or impedes any
official proceeding, or attempts to do so,” 18 U.S.C. § 1512(c)(2), is an impermissibly vague
“residual clause” fares no better. Def.’s Mot. Dismiss at 10. Andries’s reliance on Johnson is
misplaced. There, the Supreme Court held that the residual clause of 18 U.S.C.
22
§ 924(e)(2)(B)(ii)—which made a previous conviction a predicate for a sentence enhancement if
it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another”—was unconstitutionally vague
not because it was a catch-all clause that used the word “otherwise,” but rather because of the
uncertainty inherent in the phrase “serious potential risk” and the need to apply that term to “an
idealized ordinary case of the crime” rather than to the actual facts of the case. Johnson, 576
U.S. at 597–98 (emphasis added to highlight the unconstitutionally vague language). Section
1512(c)(2) does not present those concerns. It simply requires the application of terms with
“noncontroversial” definitions (obstruct, impede, and influence) to the defendant’s actions. See
Montgomery, 2021 WL 6134591, at *10 (collecting dictionary definitions to conclude that
§ 1512(c)(2) prohibits “coming in the way of, blocking, or holding up the business conducted by
an official body”). And the term “otherwise” suggests that the statute prohibits obstructing,
influencing, or impeding an official proceeding in any way; that is, in ways other than the
destruction, alteration, mutilation, and concealment of documentary evidence prohibited in
§ 1512(c)(1). See Nordean, 2021 WL 6134595, at *6–8; Montgomery, 2021 WL 6134591, at
*11–18; United States v. Petruk, 781 F.3d 438, 447–48 (8th Cir. 2015). Read this way,
§ 1512(c)(2) is a broad, catch-all prohibition—it reaches a wide range of obstructive actions—
but it is not a vague one.7 Moreover, every court of appeals to have faced the question has
interpreted § 1512(c)(2) to include a requirement that the obstructive act have a nexus with a
7
In United States v. Miller, the court interpreted § 1512(c)(2) narrowly to reach only
action taken “with respect to a document, record or other object.” No. 21-cr-00119, Dkt. No. 72,
slip op. at 28 (D.D.C. Mar. 7, 2022). Neither party has presented to the Court a position
regarding whether Miller’s narrow interpretation or the broader reading found in such cases as
Montgomery and Nordean is correct, so the Court does not definitively decide that question
today. For now, it suffices to conclude that even the broader reading is not vague, and that
Miller’s narrower reading, if correct, would only further mitigate any vagueness concern.
23
specific official proceeding. Montgomery, 2021 WL 6134591, at * 20 (collecting cases). This
means that the “charged conduct must have the ‘natural and probable effect of interfering with’
an official proceeding and the accused must have ‘know[n] that his actions [were] likely to
affect’ a particular proceeding.” Id. (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)).
This narrowing gloss further insulates the catch-all clause from any facial vagueness concern.
Andries’s most substantial challenge is to the statute’s use of the word “corruptly,” but
this, too, ultimately falls short. He relies heavily on United States v. Poindexter, 951 F.2d 369,
379–80 (D.C. Cir. 1991), in which the D.C. Circuit observed that “in the absence of some
narrowing gloss,” the term “corrupt” is vague in that it might be defined with reference to
subjective terms whose meanings can vary according to the moral values of the beholder, such as
“‘depraved,’ ‘evil,’ ‘immoral,’ ‘wicked,’ and ‘improper.’” Poindexter held that 18 U.S.C.
§ 1505’s prohibition on “corruptly . . . influenc[ing], obstruct[ing], or imped[ing]” congressional
inquiries was unconstitutionally vague as applied to a defendant who was accused of making
false statements to Congress. 951 F.2d at 377, 386. Several judges in this district have
encountered similar arguments and have persuasively explained why Poindexter’s holding and
reasoning were limited to the facts it confronted and do not support a conclusion that “corruptly”
as used in § 1512(c) is unconstitutionally vague. Importantly, Poindexter turned in significant
part on the fact that “corruptly” is used transitively in § 1505—i.e., in the sense of corruptly
causing another person to act—and the difficulty in applying such a term to a defendant who was
accused of lying himself. Id. at 379. But § 1512(c) “favors an intransitive reading of the word
‘corruptly,’” in that it focuses on how a defendant acts, not how he causes another person to act.
Nordean, 2021 WL 6134595, at *10. Rather than rehash the remaining details of Poindexter, the
Court notes its agreement with its colleagues’ analyses, the key points of which are that “(1)
24
Poindexter turned on the specific language of 18 U.S.C. § 1505 and the specific charge in that
case—that is, lying to Congress; (2) ‘[i]n the end, the [D.C. Circuit] did not conclude that
“corruptly” [even as used] in [S]ection 1505 was “unconstitutionally vague as applied to all
conduct;”’ and (3) ‘[m]uch has transpired in the four decades that have passed since
Poindexter.’” Montgomery, 2021 WL 6134591, at *18 (quoting Caldwell 2021 WL 6062718, at
*8–10)); see also Sandlin, 2021 WL 5865006, at *11; McHugh, 2022 WL 296304, at *10;
Nordean, 2021 WL 6134595, at *10; Mostofsky, 2021 WL 6049891, at *11.
Post-Poindexter developments include numerous judicial interpretations of the term
“corruptly” in various obstruction statutes. In Arthur Andersen LLP v. United States, the
Supreme Court relied on dictionary definitions of “knowing” and “corrupt” to hold that the
phrase “knowingly . . . corruptly persuad[e]” in 18 U.S.C. § 1512(b) required “conscious[ness]
of wrongdoing.” 544 U.S. 696, 705–06 (2005). Dictionary definitions made clear to the
Supreme Court that “corruptly” is “normally associated with wrongful, immoral, depraved, or
evil.” Id. The Supreme Court did not suggest that the phrase “knowingly . . . corruptly,” defined
to mean with “consciousness of wrongdoing,” was vague.
Arthur Andersen is instructive, but does not fully resolve Andries’s vagueness challenge
to § 1512(c). The Supreme Court’s “consciousness of wrongdoing” interpretation turned in part
on § 1512(b)’s inclusion of the word “knowingly,” a word absent from § 1512(c). Arthur
Andersen, 544 U.S. at 705 n.9; see United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013).
Moreover, the Court relied on dictionary definitions of “corrupt,” including “wrongful, immoral,
depraved, [and] evil,” Arthur Andersen, 544 U.S. at 705, that might be susceptible to
Poindexter’s observation that such terms “afford ‘an almost boundless area for individual
assessment of the morality of another’s behavior.’” Poindexter, 951 F.2d at 378 (D.C. Cir. 1991)
25
(citation omitted); see Sandlin, 2021 WL 5865006, at *12 (citing Poindexter, 951 F.2d at 379);
Williams, 553 U.S. 285 at 306 (“[W]e have struck down statutes that tied criminal culpability to
whether the defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments
without statutory definitions, narrowing context, or settled legal meanings.” (emphasis added)).
Notably, however, Arthur Andersen did not adopt the most subjective of these
definitional terms, like “immoral, depraved, or evil”; instead, it interpreted corrupt to mean
“wrongful.” 544 U.S. at 705–06 (to “knowingly . . . corruptly persuade” means to be “conscious
of wrongdoing” (emphasis added)). And the courts of appeals have built upon this focus to
interpret “corruptly” in § 1512(c) narrowly: it requires “at least an ‘improper purpose’ and an
‘intent to obstruct.’” Montgomery, 2021 WL 6134591, at *21 & n.4 (collecting cases).
“Corruptly,” imports, at least, an intent requirement because it is difficult to imagine how one
could obstruct a proceeding “wrongfully” without in the first place intending to obstruct the
proceeding. See United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (explaining that
the intent requirement separates innocent from wrongful acts of obstruction).8 The additional
requirement, acting with an improper purpose, is a straightforward translation of acting
wrongfully. See United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (“corruptly”
means “with an improper purpose and to engage in conduct knowingly and dishonestly with the
specific intent to subvert, impede or obstruct the” relevant proceeding); United States v. Gordon,
8
The government appears to agree that § 1512(c) requires specific intent to obstruct a
specific proceeding. It writes that “[a] conviction under Section 1512(c)(2) requires proof that
‘the natural and probable effect of the defendant’s actions were to obstruct the official
proceeding; that he knew that his actions were likely to obstruct that proceeding; and that he
acted with the wrongful or improper purpose of delaying or stopping the official proceeding.’”
Gov’t’s Resp. Def.’s Second Suppl. Brief at 6; see also Caldwell, 2021 WL 6062718, at *11
(quoting government’s statement in that case that “the term ‘corruptly’ requires the government
to prove that a defendant acted not only with intent to obstruct but also with ‘consciousness of
wrongdoing’” (citation omitted)).
26
710 F.3d 1124, 1151 (10th Cir. 2013) (same); cf. 18 U.S.C. § 1515(b) (defining “corruptly” as
used in § 1505 to mean “acting with an improper purpose, personally or by influencing another,
including making a false or misleading statement, or withholding, concealing, altering, or
destroying a document or other information.” (emphasis added)).9 Construed to include a
requirement of improper purpose, and despite the absence of the word “knowingly” to modify
“corruptly,” the definition of “corruptly” in § 1512(c) is substantially similar to the
“consciousness of wrongdoing” definition the Supreme Court laid out in Arthur Andersen, 544
U.S. at 706. See Caldwell, 2021 WL 6062718, at *11 (holding that “corruptly” in § 1512(c)
requires proof that the defendant acted with consciousness of wrongdoing).
While narrower than the “boundless” definitions of “corruptly” underlying Andries’s
vagueness challenge, such as “immoral” and “depraved,” Def.’s Mot. Dismiss at 11 (citation
omitted), the “improper purpose” requirement might at first glance seem to risk the sort of
subjective judgment that could create a vagueness problem. But a closer look reveals that
interpreting “corruptly” to require proof of an improper purpose sets out a “comprehensible
normative standard,” if an “imprecise” one—enough to pass vagueness muster. Bronstein, 849
F.3d at 33. Arthur Andersen explained that the “conscious of wrongdoing” definition worked to
9
Courts have phrased the requirement in different ways, see, e.g., Friske, 640 F.3d at
1291 (referring to “dishonest” conduct); United States v. Edlind, 887 F.3d 166, 174 n.3 (4th Cir.
2018) (noting district court’s instruction which required the defendant to be “conscious of
wrongdoing”). But the Court “need not adopt a firm definition of ‘corruptly’” in order to resolve
Andries’s facial vagueness challenge. See Caldwell, 2021 WL 6062718, at *11. The Court’s
narrow task at this stage is to discern whether “corruptly” provides “no standard of conduct at
all.” Bronstein, 849 F.3d at 1107. Any remaining vagueness concerns come from the “improper
purpose” requirement; additional terms such as “dishonestly” (if they are part of the definition at
all) are clear enough, as is “intent to obstruct.” See Caldwell, 2021 WL 6062718, at *11
(“Defendants cannot complain that section 1512(c)(2) does not supply fair notice if it is
construed to require proof that Defendants acted with a specific intent to do what the statute
prohibits: obstruct an official proceeding.”).
27
limit § 1512(b) so that it reached only “those with the level of culpability we usually require in
order to impose criminal liability.” 544 U.S. at 706 (cleaned up). In the context of § 1512(b)’s
prohibition on “knowingly . . . corruptly persuad[ing]” with the intent to cause a person to
withhold documents from an official proceeding, Arthur Andersen explained that the statute
drew a distinction between lawful persuasion to withhold documents and persuasion to withhold
documents that was “inherently malign.” 544 U.S. at 703–04. Thus, “a mother who suggests to
her son that he invoke his right against compelled self-incrimination, see U.S. Const., Amdt. 5,
or a wife who persuades her husband not to disclose marital confidences” does not act with an
improper purpose. See id. at 704. Nor is it improper for an attorney to persuade a client to
withhold documents protected by the attorney-client privilege. See id. And, under “ordinary
circumstances,” it is “not wrongful for a manager to instruct his employees to comply with a
valid document retention policy,” including by shredding documents. See id.“Corruptly” in § 1512(c)(2) serves the same function; it separates innocent attempts to
“obstruct[], influence[], or impede” an official proceeding from those undertaken with a
wrongful purpose. See McKibbins, 656 F.3d at 711 (“‘[C]orruptly’ is what ‘serves to separate
criminal and innocent acts of obstruction’” in § 1512(c)). Like the examples in Arthur Andersen,
one can picture scenarios in which an individual attempts to “influence” (and maybe impede or
obstruct) for a proper purpose. Cf. United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990)
(per curiam) (“An executive branch official, for example, might call the chairman of a
congressional committee convened to investigate some wrongdoing and say, ‘We both know this
investigation is really designed to embarrass the President (or a Senator), not to investigate
wrongdoing. Why don’t you call it off’? The official surely intends to obstruct or impede the
inquiry, but it does not necessarily follow that he does so corruptly. Similarly, a political activist
28
might contact his representative and tell her that unless she stops spending her time pursuing a
certain investigation rather than some other legislative endeavor, the activist’s group will oppose
her reelection. Again, the activist is endeavoring to impede or obstruct the investigation, but is
not necessarily doing so corruptly”), opinion withdrawn and superseded in nonrelevant part on
reh’g, 920 F.2d 940 (D.C. Cir. 1990). Notice that the proper examples explored in Arthur
Andersen and North all involved the vindication of legal rights (the privilege examples) or the
pursuit of ends widely recognized as acceptable or ordinary in the relevant field (the document
retention policy and lobbying examples); they also involved conduct widely acceptable and
ordinary in the relevant field. Unusual or illegal conduct is a useful, if not necessary, indicator of
improper purpose.10 Cf. Sandlin, 2021 WL 5865006 at *11 (in addition to covering normally
legitimate actions undertaken with an improper purpose, the word “corrupt” also means
“characterized by improper conduct (such as bribery or the selling of favors)” (quoting Corrupt
(adj.), def. 1(b), Merriam-Webster’s Collegiate Dictionary)). On the other side of these
examples, there are a great many possible situations in which an individual plainly acts with an
improper purpose, such as one who bribes a member of Congress to stop a hearing that might
uncover the individual’s criminal wrongdoing, or one who threatens a member of Congress in
order to delay a hearing so that the individual has time to trade on private information the
hearing would make public.
10
The Court does not foreclose the possibility that acting in an independently criminal
manner may be another means, aside from acting with an improper purpose, of satisfying the
§ 1512(c)(2) corruption element. See Sandlin, 2021 WL 5865006, at *12–14; Nordean, 2021
WL 6134595, at *10–12. But because this means of satisfying the corruption element would not
present any vagueness problem, see Sandlin, 2021 WL 5865006, at *14; Nordean, 2021 WL
6134595, at *12, the Court focuses its analysis on the less clear-cut “improper purpose” means.
29
In discussing these examples, the Court does not attempt to set forth with precision when
an individual has or has not acted with an improper purpose. Rather, the narrow project of
resolving Andries’s facial vagueness challenge requires the Court only to determine whether the
statute specifies any comprehensible standard of conduct. See Bronstein, 849 F.3d at 1107. A
statute is not void for vagueness if its only flaw is that it “requires a person to conform his
conduct to an imprecise but comprehensible normative standard, whose satisfaction may vary
depending upon whom you ask.” Id. (cleaned up); see also Johnson, 576 U.S. at 604–05 (“As a
general matter, we do not doubt the constitutionality of laws that call for the application of a
qualitative standard . . . to real-world conduct; the law is full of instances where a man’s fate
depends on his estimating rightly some matter of degree.” (cleaned up)). The requirement that a
§ 1512(c)(2) defendant act with an improper purpose, that is, an inherently malign one that at
least approximates “the level of culpability we usually require in order to impose criminal
liability,” Arthur Andersen, 544 U.S. at 706 (cleaned up), is such a comprehensible normative
standard. Cf. Caldwell, 2021 WL 6062718, at 11 (holding that “corruptly” in § 1512(c) requires
at least “consciousness of wrongdoing” and that this interpretation saved the statute from
constitutional vagueness). It does not require a “wholly subjective judgement[]” about what the
law requires. Williams, 553 U.S. at 306. It will not be easy in every case to determine whether
conduct meets this standard, but “the mere fact that close cases can be envisioned” does not
“render[] a statute vague. . . . . The problem that poses is addressed, not by the doctrine of
vagueness, but by the requirement of proof beyond a reasonable doubt.” Id. at 305–06. The
existence of a substantial, core set of clear applications for “corruptly” in § 1512(c) means that
Andries’s facial vagueness claim falls “far short of the ‘impermissibly vague in all of its
applications’” standard, Crooks, 845 F.3d at 417; it is not a term that provides “no standard of
30
conduct at all,” Bronstein, 849 F.3d at 1107. Given that there is a substantial core of conduct to
which “corruptly” in § 1512(c) constitutionally applies, the Court will not take the drastic step of
holding it facially void for vagueness. See Harriss, 347 U.S. at 618. “[T]here may be scenarios
at the edges that present vagueness problems,” Sandlin, 2021 WL 5865006 at *10, but those
must be addressed in the context of as-applied challenges.
Finally, Andries lists several other January 6 Capitol breach defendants who have also
faced § 1512(c)(2) charges, and argues that “the facts and circumstances of each case vary
drastically from each other and make it clear that the government’s charging decisions are
inconsistent.” Def.’s Mot. Dismiss at 14. But “Supreme Court precedent teaches that the
presence of enforcement discretion alone does not render a statutory scheme unconstitutionally
vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017) (Kavanaugh, J.) (citing
United States v. Batchelder, 442 U.S. 114 (1979)). Set against the considerations the Court has
outlined, any variance in government charging decisions cannot save Andries’s facial vagueness
challenge. The Court denies Andries’s motion to dismiss Count I.11
11
In his reply brief, Andries for the first time invokes the First Amendment to explain
that he “could not possibly have been on notice that he was ‘obstructing’ an ‘official
proceeding’” because all he did, he says in his brief, was make certain statements and engage in
protest, which is non-criminal protected expression. Reply at 4–6. This argument falls under the
heading “Even if the Court determines that the Electoral Count is an ‘Official Proceeding,’ 18
U.S.C. § 1512(c)(2) is Unconstitutionally Vague,” id. at 4, and it relies on assertions regarding
Andries’s conduct, so the Court understands the references to the First Amendment as support
for Andries’s Fifth Amendment as-applied vagueness claim, rather than as a distinct First
Amendment overbreadth or as-applied First Amendment claim. The Court has denied the as-
applied vagueness claim as premature, so has no occasion to address any of these First
Amendment arguments. Other judges in this district have faced, and rejected, both overbreadth
and as-applied First Amendment challenges to § 1512(c)(2) brought in connection with the
Capitol breach. See Montgomery, 2021 WL 6134591, at *23–24; Mostofsky, 2021 WL 6049891,
at *12; Caldwell, 2021 WL 6062718, at *22; Nordean, 2021 WL 6134595, at *14.
31
B. Count II, for Violation of 18 U.S.C. § 1752(a)(1), and Count III, for Violation of 18
U.S.C. § 1752(a)(2), State Offenses
Counts II and III charge Andries with violating two subparts of 18 U.S.C. § 1752, which
reads:
(a) Whoever--
(1) knowingly enters or remains in any restricted building or grounds
without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the orderly conduct of
Government business or official functions, engages in disorderly or
disruptive conduct in, or within such proximity to, any restricted building
or grounds when, or so that, such conduct, in fact, impedes or disrupts the
orderly conduct of Government business or official functions;
...
[shall be punished as provided in the statute.]
(c) In this section--
(1) the term “restricted buildings or grounds” means any posted, cordoned
off, or otherwise restricted area--
(A) of the White House or its grounds, or the Vice President’s
official residence or its grounds;
(B) of a building or grounds where the President or other person
protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an
event designated as a special event of national significance; and
(2) the term “other person protected by the Secret Service” means any
person whom the United States Secret Service is authorized to protect under
section 3056 of this title or by Presidential memorandum, when such person
has not declined such protection.
18 U.S.C. § 1752. Section 1752(c)(2)’s reference to 18 U.S.C. § 3056 makes clear that the Vice
President is an “other person protected by the secret service” for purposes of § 1752(c)(1)(B).12
12
So is the Vice President-elect, 18 U.S.C. § 3056(a)(1), and the Superseding Indictment
states that then-Vice President-elect Harris was also at the Capitol when Andries entered.
Superseding Indictment at 2. However, in a supplemental brief, the government acknowledges
that Vice President-elect Harris was not at the Capitol during the breach, though she was there
before and after. The government therefore claims that Vice President-elect Harris was a person
who “will be temporarily visiting” the Capitol, § 1752(c)(1)(B), at the time of Andries’s entry.
Gov’t Opp’n Def.’s Suppl. Mot. Dismiss Counts Two and Three of the Superseding Indictment
32
18 U.S.C. § 3056(a)(1). Count II charges Andries with knowingly entering and remaining in the
Capitol and its grounds while it was a restricted area, in violation of § 1752(a)(1), and Count III
charges him with engaging in disorderly and disruptive conduct in and within proximity to the
Capitol with intent to disrupt government functions in violation of § 1752(a)(2). Superseding
Indictment at 2. Both counts rely on the definition of restricted area found in § 1752(c)(1)(B), a
“posted, cordoned off, or otherwise restricted area . . . of a building or grounds where the
President or other person protected by the Secret Service is or will be temporarily visiting.”
Andries argues that both of these counts fail to state an offense for the same two reasons.
First, he says that the statute requires the Secret Service, rather than the Capitol Police, to restrict
the relevant building or grounds, so the Capitol was not a restricted building or grounds within
the meaning of the statute on January 6, 2021. Def.’s Mot. Dismiss at 14. Next, he argues that
Vice President Pence was not “temporarily visiting” the Capitol on January 6 within the meaning
of § 1752(c)(1)(B). Def.’s Suppl. Br. Supp. Mot. Dismiss Counts I, II, and III of the Superseding
Indictment (Def.’s First Suppl. Br.) at 2–4, ECF No. 30.13 Both assertions are incorrect as a
matter of law, so the Court denies Andries’s motion to dismiss Counts II and III.
at 2 n.2 (“Opp’n Suppl. Mot. Dismiss”), ECF No. 31. But the Superseding Indictment charges
that Vice President-elect Harris was visiting the Capitol at the time of Andries’s entry, not that
she would be. Superseding Indictment at 2. Similarly, the government’s brief also alleges that
two of Vice President Pence’s immediate family members, also Secret Service protectees, 18
U.S.C. § 3056(a)(2), were at the Capitol, but the Superseding Indictment makes no mention of
them. Opp’n Suppl. Mot. Dismiss. Once again, the Court must rest its evaluation of Andries’s
motion to dismiss on the four corners of the Superseding Indictment. Because, as the Court will
explain, the allegation that Vice President Pence was present is sufficient to state the offenses
charged in Counts II and III, the Court does not consider the government’s claims regarding Vice
President-elect Harris’s future presence or the presence of Vice President Pence’s family
members in its analysis of Andries’s motion to dismiss.
13
At oral argument, the Court gave Andries permission to file a supplemental brief
raising this new argument.
33
1. 18 U.S.C. § 1752 Does Not Require the Secret Service to Restrict the Protected Area
Andries says that for an area to qualify as a “restricted building or grounds,”
§ 1752(a)(1), (2), the Secret Service must be the entity that restricts it or cordons it off. Because
the Superseding Indictment does not allege that the Secret Service restricted the Capitol on
January 6—the government acknowledges that the U.S. Capitol Police restricted and cordoned
off the Capitol that day, Opp’n at 2–3—Andries claims that Counts II and III each fail to state an
offense. Def.’s Mot. Dismiss at 14–17. Once again, the statute defines “restricted buildings or
grounds” in this way:
(c) In this section--
(1) the term “restricted buildings or grounds” means any posted, cordoned
off, or otherwise restricted area--
(A) of the White House or its grounds, or the Vice President’s
official residence or its grounds;
(B) of a building or grounds where the President or other person
protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in conjunction with an
event designated as a special event of national significance . . . .
18 U.S.C. § 1752(c) (emphases added).
Absent from the text is any mention of a requirement that any specific entity must restrict
or cordon off the area, let alone a requirement that only the Secret Service may be the restricting
entity. Mostofsky, 2021 WL 6049891, at *13 (“The text plainly does not require that the Secret
Service be the entity to restrict or cordon off a particular area.”); United States v. Griffin, 549 F.
Supp. 3d 49, 56 (D.D.C. 2021); McHugh, 2022 WL 296304, at *19; United States v. Caldwell,
No. 21-cr-28, Dkt. No. 415, slip op. at 4 (D.D.C. Sept. 14, 2021). The Superseding Indictment
charges that Vice President Pence, a Secret Service protectee, was at the Capitol and that Andries
entered an area within the Capitol and its grounds that was “posted, cordoned off, or otherwise
34
restricted,” so it sufficiently states the restricted area element of the § 1752 offenses charged in
Counts II and III. Superseding Indictment at 2.
Andries’s argument to the contrary relies heavily on legislative history and policy
considerations. But such factors do not permit the Court to add a requirement to unambiguous
statutory text. When “the words of a statute are unambiguous, the judicial inquiry is complete.”
Griffin, 549 F. Supp. 3d at 56 (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020)). In any
event, Andries’s extra-textual considerations at best do not support his reading and at worst
undermine it. He points out that when Congress passed § 1752 in 1970, it was concerned that
“[a]lthough the Secret Service is charged with protecting the person of the President (among
others) there is, at the present time, no Federal statute which specifically authorizes them to
restrict entry to areas where the President maintains temporary residences or offices.” S. Rep.
No. 91-1252 at 7 (1970); see Reply 8–9. The Senate Judiciary Committee explained that it was
concerned with instances in which the Secret Service had to rely on a patchwork of state and
local laws and inconsistent assistance from local authorities. Id. But that Congress may have
envisioned the Secret Service as the primary restrictor of areas visited by the President and other
protected officials, and that it may have primarily been concerned with presidential travel in
areas within the control of state authorities, does not mean that it meant to make the Secret
Service the exclusive restrictor. The statements in the Senate Judiciary Committee report are
consistent with Congress’s apparent choice to leave the statutory text open-ended so that other
competent entities, such as the U.S. Capitol Police or state officials when they were capable of
doing so, could restrict areas around protected officials.
Andries has something of an answer to the legislative history’s failure to expressly limit
restriction authority to the Secret Service; he notes that the Secret Service was formerly a
35
component of the Treasury Department and the original version of the statute authorized the
Secretary of the Treasury to “designate by regulations the buildings and grounds which
constitute the” protected residences of the President and other Secret Service protectees—one
category of locations subject to the statute’s coverage. 18 U.S.C. § 1752 (a)(1), (d)(1) (1970). It
also gave the Treasury Secretary authority related to a second category of locations, the one
analogous to the current statute’s “posted, cordoned off, or otherwise restricted area . . . where
the President or other person protected by the Secret Service is or will be temporarily visiting”
definition at issue in this case, 18 U.S.C. § 1752 (c)(1)(B) (2018). The 1970 version covered
“any posted, cordoned off, or otherwise restricted area of a building or grounds where the
President or other person protected by the Secret Service is or will be temporarily visiting.” 18
U.S.C. § 1752 (a)(1)(ii) (1970). It authorized the Secretary of the Treasury “to prescribe
regulations governing ingress or egress to such locations.” Id. § 1752 (d)(2). Notably, even in
this version of the statute, Congress did not say that only the Treasury Secretary could restrict the
areas a protected official was temporarily visiting. Like the current version, the 1970 version
said nothing about “who must do the restricting.” Griffin, 549 F. Supp. 3d at 55. Congress knew
how to provide the Treasury with authority related to restricted areas—it gave Treasury the
narrow authority to regulate the “ingress and egress” to such areas—but it chose not to locate the
authority to restrict in the first place with the Treasury.
Even if these references to the Treasury somehow suggested that Congress in 1970 meant
to specify the Secret Service as the only entity that may restrict areas, they do not further
Andries’s claim about the statute as it exists today. Congress removed all references to the
Treasury in 2006 and did not replace them with any references to regulations of the Department
of Homeland Security, the Secret Service’s new home. See McHugh, 2022 WL 296304, at *20
36
(citing USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177,
§ 602, 120 Stat. 192, 252 (2006)). To be sure, current law does assign the Secret Service some
role in determining § 1752’s coverage—but in a limited way, and with regard to a definition of
restricted area not relevant here. In addition to the definition of “restricted buildings or grounds”
at issue here (where the President and other protectees are temporarily visiting), “restricted
buildings or grounds” also include areas restricted “in conjunction with an event designated as a
special event of national significance.” 18 U.S.C. § 1752(c)(1)(C). “When directed by the
President, the United States Secret Service is authorized to participate, under the direction of the
Secretary of Homeland Security, in the planning, coordination, and implementation of security
operations at special events of national significance, as determined by the President.” 18 U.S.C.
§ 3056(e)(1). That the Secret Service is one authorized participant in security operations for
special events of national significance does not establish that it is the only entity authorized to
help with such operations, much less that it is the only entity that may “restrict[]” “a building or
grounds” “in conjunction with” such an event. 18 U.S.C. § 1752(c)(1)(C). Even if it did, this
would tell us nothing about the separate definition of “restricted buildings or grounds” at issue
here, § 1752(c)(1)(B)’s provision for buildings or grounds where the President or other protected
person is temporarily visiting. See McHugh, 2022 WL 296304, at *19.
As it stands today, the statute defines restricted areas (as relevant here) in terms of their
physical characteristics (“posted, cordoned off, or otherwise restricted”) and in terms of who is
present within the area (Secret Service protectees). 18 U.S.C. § 1752(c)(1)(B). It does not say
who must restrict the area, by, for example, cordoning it off or setting up signs prohibiting entry.
Contrary to Andries’s suggestion, see Def.’s Mot. Dismiss at 17, this open-ended structure
makes policy sense. It extends the law’s protection of Secret Service protectees to areas where
37
sufficient physical restrictions may already exist, such as military facilities, or where partner
federal or local authorities are willing to assist with setting restrictions (such as the Capitol
Police on January 6), without requiring the Secret Service to set up unnecessary additional
physical restrictions. See Griffin, 549 F. Supp. 3d at 54 (noting that the U.S. Park Police “share
responsibility for the parklands surrounding the White House”).
Andries protests that “if there is no designation as to ‘who must’ restrict the area, it could
create another absurd result . . . that anyone claiming to be a part of law enforcement could post a
sign designating an area as restricted and a criminal defendant could then be penalized for
trespassing because they ‘willfully’ ignored the sign.” Def.’s Mot. Dismiss at 17. Assuming
without deciding that Andries’s hypothetical about a private restrictor correctly states the law,
the statute’s other elements, including that one of the few protectees of the Secret Service be in
the area and that the defendant act “knowingly” and “without lawful authority,” see, e.g., 18
U.S.C. § 1752(1), considerably limit the scope of potential liability in such a situation.
Moreover, the Court is not convinced that it would be absurd in all cases to allow a private
individual to set up the restricting barriers; imagine, for example, a presidential visit to a private
home surrounded by fences and “do not enter” signs. Griffin, 549 F. Supp. 3d at 57 (highlighting
such a possibility). Does the Secret Service need to duplicate these barriers in order to trigger
the statute’s protections? In any event, any hypothetical unreasonable applications at the edges
of the statute’s coverage would not license the Court to write into the statute a requirement that
Congress omitted. Cf. United States v. Long, 997 F.3d 342, 356 (D.C. Cir. 2021) (“[C]ourts may
not use the absurdity canon to set aside plain text unless the absurdity and injustice of applying
the provision to the case would be so monstrous that all mankind would, without hesitation, unite
in rejecting the application.” (cleaned up)); see McHugh, 2022 WL 296304, at *20 (addressing a
38
similar argument and holding that “there is nothing absurd about criminalizing the breach of any
barrier around a Secret Service protectee, and [that] the Court will not create its own atextual
absurdity based on a fringe hypothetical that does not even remotely resemble the facts before
the Court”).
2. Vice President Pence Was Temporarily Visiting the Capitol on January 6, 2021
Andries’s final argument is that Vice President Pence was not “temporarily visiting” the
Capitol on January 6, 2021. 18 U.S.C. § 1752(c)(1)(B) (defining “restricted buildings or
grounds” in part to include a restricted area “of a building or grounds where the President or
other person protected by the Secret Service is or will be temporarily visiting.”). Judge Bates
recently issued a thorough opinion rejecting the same argument, and the Court agrees with his
conclusion. McHugh, 2022 WL 296304 at *2.
Andries cites dictionary definitions of “temporary” and “visit” to assert that “the phrase
‘temporarily visiting’ connotes temporary travel to a location where the person is not normally
living and/or working on a regular basis.” Def.’s First Suppl. Brief at 2. Fair enough, as a
general matter. Temporarily means “for a time (only); during a limited time.” McHugh, 2022
WL 296304, at *20 (quoting Temporarily, Oxford English Dictionary (2d ed. 1989) and
collecting similar dictionary definitions). To “visit” means “to go to see or sojourn at (a place)
for a particular purpose (as for business, pleasure, or sight-seeing).” Visit, Merriam-Webster
Unabridged Dictionary, https://unabridged.merriam webster.com/unabridged/visit (last visited
Feb. 24, 2022); see McHugh, 2022 WL 296304,, at *20 (collecting similar dictionary
definitions). Thus, Vice President Pence was “temporarily visiting” the Capitol on January 6,
2021 if he went to the Capitol for a particular purpose, including a business purpose, and for a
limited time only. See McHugh, 2022 WL 296304, at *20. Plainly he did. He went to the
Capitol for the business purpose of carrying out his constitutionally assigned role in the electoral
39
count proceeding; he intended to and did stay there only for a limited time. Id. at 21 (noting that
Vice President Pence left the Capitol in the early morning hours of January 7, when Congress
finished certifying the count after delays caused by the breach).
Andries protests that Vice President Pence was “working and meeting” at the Capitol on
January 6 rather than “visiting it,” Def.’s First Suppl. Br. at 3, but as the definitions just
discussed make clear, one can “visit” a location for the business purpose of working and meeting
there. Andries also notes that Vice President Pence resided in Washington, D.C. and, as
President of the Senate, held a permanent office at the Capitol. Thus, he argues “that a person
generally cannot be said to be ‘temporarily visiting’ his own office building located
approximately four miles from his home.” Def.’s Reply Supp. Suppl. Mot. Dismiss at 2, ECF
No. 34; see Def’s First Suppl. Br. at 3. Andries’s proposed geographic limitation does not hold
up; “obviously one can ‘temporarily visit’ the house next door, a neighborhood church, or a
restaurant across town.”14 McHugh, 2022 WL 296304, at *21. And though there is some
intuitive appeal to Andries’s suggestion that a person does not “visit” a place where he maintains
an office, dictionary definitions of the term do not impose such a limitation. See id. at *22.
Moreover, there are situations in which it would be quite natural to say that a person
“temporarily visits” a place where she has an office: consider a CEO of an international
corporation who normally works from headquarters in New York, but who maintains an office
for her occasional use at the firm’s satellite location in London. When the CEO travels to check
14
In passing, Andries invokes federalism principles to suggest that the Court should not
interpret the statute to duplicate the coverage of state criminal laws, which might suffice to
protect the President while visiting a home-state residence outside of the District of Columbia.
Def.’s Reply Supp. Suppl. Mot. Dismiss at 5. All of the charged conduct in this case took place
in the District of Columbia, so any federalism concerns are irrelevant to the Court’s
interpretation. Caldwell, No. 21-cr-28, Dkt. No. 415, slip op. at 4 (D.D.C. Sept. 14, 2021).
40
in on her colleagues in London, she temporarily visits the London office, even if she works at her
reserve office while there. See Visit, Merriam-Webster Unabridged Dictionary,
https://unabridged.merriam webster.com/unabridged/visit (last visited Feb. 24, 2022) (one
definition of “visit” is “to come or go officially to oversee or correct the operation of”).
Indeed, the legislative history—which Andries invokes for its references to the need to
protect the President when he is outside D.C., see Def.’s Reply Supp. Suppl. Mot. Dismiss at 2–
3—suggests that Congress foresaw a similar situation involving the high-level officials § 1752
protects, many of whom might maintain offices in multiple locations. The Senate Judiciary
Committee explained that § 1752 was designed to remedy the fact that “there is, at the present
time, no Federal statute which specifically authorizes [the Secret Service] to restrict entry to
areas where the President maintains temporary residences or offices.” S. Rep. No. 91-1252 at 7
(1970) (emphasis added). Like a President who maintains an office at his home-state residence,
and like the CEO who maintains a reserve office at her firm’s satellite location, Vice President
Pence held an office at the Capitol, but did not use that office as his primary, regular workspace.
See McHugh, 2022 WL 296304 at *22 (“Although the [Vice President’s senate office] was ‘the
only space in the city assigned to the vice president’ in the 19th century, the Vice President has
had other spaces from which to do his or her job since 1909. At present, the Vice President’s
working office is in the West Wing of the White House, and she also maintains a ceremonial
office in the Eisenhower Executive Office Building.” (citations omitted)). Accordingly, even if
it is “awkward . . . to describe an ordinary commute from home to one’s regular workplace as
‘temporarily visiting’ the office,” McHugh, 2022 WL 296304, at *22, this case does not present
such a situation. Vice President Pence was “temporarily visiting” the Capitol on January 6
within the meaning of § 1752. Counts II and III state offenses.
41
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss Counts I, II, and III of the
Superseding Indictment (ECF No. 20) is DENIED. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: 03/14/2022 RUDOLPH CONTRERAS
United States District Judge
42