The D.C. Circuit issued one opinion last week in United States v. Robertson. The case was argued on May 11, so the decision is apparently a rare holdover from last term, but it is no surprise that the 45-page majority (Pan, joined by Pillard) and 34-page dissent (Henderson) spilled over into the 2023 term.
Robertson is another criminal case arising out of January 6. The majority affirmed a conviction and sentence of defendant under 18 U.S.C. § 1512(c)(2), concluding that the defendant “corruptly” obstructed Congress’s certification of the Electoral College vote. The main dispute is over the meaning of “corruptly.” The majority says that “corruptly” includes any “felonious ‘unlawful means’ to obstruct, impede, or influence” the proceedings (slip op., at 12), while the dissent concludes that something is done “corruptly” only if the act is done to “obtain an unlawful benefit for [the defendant] or another” (dissent at 15). Among other things, the dissent suggests that the majority’s definition would turn “a range of minor advocacy, lobbying, and protest offenses into 20-year felonies.” (dissent at 30).
Also of note is the dispute between the majority and the dissent about the precedential effect of Judge Walker’s concurrence in the judgment in United States v. Fischer, which also interpreted the scope of § 1512(c)(2). There, Judge Walker concurred in the judgment to a (long) lead opinion by Judge Pan. In that concurrence in the judgment, he adopted Judge Henderson’s interpretation of the statute and claimed that his view would likely be “controlling” if “a future panel analyzes this splintered decision under Marks v. United States.” (slip op., at 22 & n.10). The majority in Robertson—over Judge Henderson’s dissent—declines to follow the Marks rule and concludes that Judge Walker’s concurrence in the judgment would not have been binding under that rule anyway. (slip op., at 36-38).
The opinion is worth a read for anyone practicing criminal law, but also for anyone wondering about the precedential effect of a splintered D.C. Circuit opinion.