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validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere
with an investigation.

A. Statutory Defenses to the Application of Obstruction-Of-Justiee Provisions to
the Conduct Under Investigation

The obstruction-of-justice statute most readily applicable to our investigation is 18 U.S.C.
§ 1512(c)(2). Section 1512(c) provides:

(0) 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, 0r 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 Department of Justice has taken the position that Section 1512(c)(2) states a broad,
independent, and unqualified prohibition on obstruction of justice.1077 While defendants have
argued that subsection (c)(2) should be read to cover only acts that would impair the availability
or integrity of evidence because that is subsection (c)(l)’s focus, strong arguments weigh against
that proposed limitation. The text of Section 1512(c)(2) confirms that its sweep is not tethered to
Section 1512(c)(1); courts have so interpreted it; its history does not counsel otherwise; and no
principle of statutory construction dictates a contrary View. On its face, therefore, Section
1512(c)(2) applies to all corrupt means of obstructing a proceeding, pending or contemplated—
including by improper exercises of official power. In addition, other statutory provisions that are
potentially applicable to certain conduct we investigated broadly prohibit obstruction of
proceedings that are pending before courts, grand juries, and Congress. See 18 U.S.C. §§ 1503,
1505. Congress has also specifically prohibited witness tampering. See 18 U.S.C. § 1512(b).

l. The Text of Section 1512(c)(2) Prohibits a Broad Range of Obstructive Acts

Several textual features of Section 1512(c)(2) support the conclusion that the provision
broadly prohibits corrupt means of obstructing justice and is not limited by the more specific
prohibitions in Section 1512(c)(1), which focus on evidence impairment.

First, the text of Section 1512(c)(2) is unqualified: it reaches acts that “obstruct[],
infiuence[], or impede[] any official proceeding” when committed “corruptly.” Nothing in Section
1512(c)(2)’s text limits the provision to acts that would impair the integrity or availability of
evidence for use in an official proceeding. In contrast, Section 1512(c)(1) explicitly includes the
requirement that the defendant act “with the intent to impair the object’s integrity or availability

”77 See US. Br., United States v. Kumar, Nos. 0675482—cr(L), 06—5654—cr(CON) (2d Cir. filed
Oct. 26, 2007), at pp. 15-28; United States v. Singleton, Nos. H-04—CR-514SS, H-06-cr-80 (SD. Tex. filed
June 5,2006).

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for use in an official proceeding,” a requirement that Congress also included in two other sections
of Section 1512. See 18 U.S.C. §§ 1512(a)(2)(B)(ii) (use of physical force with intent to cause a
person to destroy an object “with intent to impair the integrity or availability of the object for use
in an official proceeding”); 1512(b)(2)(B) (use of intimidation, threats, corrupt persuasion, or
misleading conduct with intent to cause a person to destroy an object “with intent to impair the
integrity or availability of the object for use in an official proceeding”). But no comparable intent
or conduct element focused on evidence impairment appears in Section 1512(c)(2). The intent
element in Section 1512(c)(2) comes from the word “corruptly.” See, e.g., United States v.
McKibbins, 656 F.3d 707, 71 1 (7th Cir. 201 l) (“The intent element is important because the word
‘corruptly’ is what serves to separate criminal and innocent acts of obstruction.”) (internal
quotation marks omitted). And the conduct element in Section 1512(c)(2) is “obstruct[ing],
influenc[ing], or imped[ing]” a proceeding. Congress is presumed to have acted intentionally in
the disparate inclusion and exclusion of evidence-impairment language. See Loughrin v. United
States, 573 U.S. 351, 358 (2014) (“[W]hen ‘Congress includes particular language in one section
ofa statute but omits it in another’—let alone in the very next provisionithis Court ‘presume[s]’
that Congress intended a difference in meaning”) (quoting Russello v. United States, 464 U.S. 16,
23 (1983)); accord Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 777 (2018).

Second, the structure of Section 1512 supports the conclusion that Section 1512(c)(2)
defines an independent offense. Section 1512(c)(2) delineates a complete crime with different
elements from Section 1512(c)(1)—and each subsection of Section 1512(c) contains its own
“attempt” prohibition, underscoring that they are independent prohibitions. The two subsections
of Section 1512(c) are connected by the conjunction “or,” indicating that each provides an
alternative basis for criminal liability. See Loughrin, 573 U.S. at 357 (“ordinary use [of ‘or'] is
almost always disjunctive, that is, the words it connects are to be given separate meanings”)
(internal quotation marks omitted). In Loughrin, for example, the Supreme Court relied on the use
of the word “or” to hold that adjacent and overlapping subsections of the bank fraud statute, 18
U.S.C. §1344, state distinct offenses and that subsection 1344(2) therefore should not be
interpreted to contain an additional element specified only in subsection 1344(1). 1d,; see also
Shaw v. United States, 137 S. Ct. 462, 465-469 (2016) (recognizing that the subsections of the
bank fraud statute “overlap substantially” but identifying distinct circumstances covered by
each).1078 And here, as in Loughrin, Section 1512(c)’s “two clauses have separate numbers, line
breaks before, between, and after them, and equivalent indentation—thus placing the clauses
visually on an equal footing and indicating that they have separate meanings.” 573 U.S. at 359.

Third, the introductory word “otherwise” in Section 1512(c)(2) signals that the provision
covers obstructive acts that are different from those listed in Section 1512(c)(1). See Black’s Law
Dictionary 1101 (6th ed. 1990) (“otherwise” means “in a different manner; in another way, or in
other ways”); see also, e.g., American Heritage College Dictionary Online (“1. In another way;

1°73 The Office of Legal Counsel recently relied on several of the same interpretive principles in
concluding that language that appeared in the first clause of the Wire Act, 18 U.S.C. § 1084, restricting its
prohibition against certain betting or wagering activities to “any sporting event or contest,” did not apply
to the second clause of the same statute, which reaches other betting or wagering activities. See
Reconsidering Whether the Wire Act Applies to Non—Sports Gambling (Nov. 2, 2018), slip op. 7 (relying
on plain language); id. at 11 (finding it not “tenable to read into the second clause the qualifier ‘on any
sporting event or contest’ that appears in the first clause”); id. at 12 (relying on Digital Realty).

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differently; 2. Under other circumstances”); see also Gooch v. United States, 297 U.S. 124, 128
(1936) (characterizing “otherwise” as a “broad term” and holding that a statutory prohibition on
kidnapping “for ransom or reward or otherwise” is not limited by the words “ransom” and
“reward” to kidnappings for pecuniary benefits); Collazos v. United States, 368 F.3d 190, 200 (2d
Cir. 2004) (construing “otherwise” in 28 U.S.C. § 2466(1)(C) to reach beyond the “specific
examples” listed in prior subsections, thereby covering the “myriad means that human ingenuity
might devise to permit a person to avoid the jurisdiction of a court”); cf Begay v. United States,
553 U.S. 137, 144 (2006) (recognizing that “otherwise” is defined to mean “in a different way or
manner,” and holding that the word “otherwise” introducing the residual clause in the Armed
Career Criminal Act, 18 U.S.C. § 924(c)(2)(B)(ii), can, but need not necessarily, “refer to a crime
that is similar to the listed examples in some respects but different in others”).1079 The purpose of
the word “otherwise” in Section 1512(c)(2) is therefore to clarify that the provision covers
obstructive acts other than the destruction of physical evidence with the intent to impair its
integrity or availability, which is the conduct addressed in Section 1512(c)(1). The word
“otherwise” does not signal that Section 1512(c)(2) has less breadth in covering obstructive
conduct than the language ofthe provision implies.

2. Judicial Decisions Support 21 Broad Reading of Section 1512(c)(2)

Courts have not limited Section 1512(c)(2) to conduct that impairs evidence, but instead
have read it to cover obstructive acts in any form.

As one court explained, “[t]his expansive subsection operates as a catch—all to cover
‘otherwise’ obstructive behavior that might not constitute a more specific offense like document
destruction, which is listed in (c)(1).” United States v. Volpendesta, 746 F.3d 273, 286 (7th Cir.
2014) (some quotation marks omitted). For example, in United States v. Ring, 628 F. Supp. 2d
195 (D.D.C. 2009), the court rejected the argument that “§ 1512(c)(2)’s reference to conduct that
‘otherwise obstructs, influences, or impedes any official proceeding” is limited to conduct that is
similar to the type of conduct proscribed by subsection (c)(1)—namely, conduct that impairs the
integrity or availability of ‘record[s], documents[s], or other object[s] for use in an official
proceeding.” Id. at 224. The court explained that “the meaning of§ 1512(c)(2) is plain on its
face.” Id. (alternations in original). And courts have upheld convictions under Section 1512(c)(2)
that did not involve evidence impairment, but instead resulted from conduct that more broadly
thwarted arrests or investigations. See, e. g., United States v. Martinez, 862 F.3d 223, 238 (2d Cir.
2017) (police officer tipped off suspects about issuance of arrest warrants before “outstanding
warrants could be executed, thereby potentially interfering with an ongoing grand jury
proceeding”); United States v, Ahrensfield, 698 F.3d 1310, 1324-1326 (10th Cir. 2012) (officer
disclosed existence of an undercover investigation to its target); United States v. Phillips, 583 F.3d
1261, 1265 (10th Cir. 2009) (defendant disclosed identity of an undercover officer thus preventing
him from making controlled purchases from methamphetamine dealers). Those cases illustrate
that Section 1512(c)(2) applies to corrupt acts—including by public officials¥that frustrate the

1079 In Sykes v. United States, 564 U.S. 1, 15 (201 1), the Supreme Court substantially abandoned
Begay’s reading of the residual clause, and in Johnson v. United States, 135 S. Ct. 2551 (2015), the Court
invalidated the residual clause as unconstitutionally vague. Begay’s analysis of the word “otherwise” is
thus of limited value.

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