Obstruction of Justice and the Capitol Riot

More than 600 individuals have been criminally charged for taking part in the assault on the U.S. Capitol on January 6, 2021. Of those, more than 200 have been charged with felony obstruction of justice for interfering with Congress’s certification of the presidential election results. A number of the defendants have raised legal challenges to this charge, and at recent hearings federal judges have expressed some concerns.

The January 6 defendants argue that the obstruction law has never been used in a case like this. That’s true, because there’s never been another case like this – not since the War of 1812, anyway. But that doesn’t mean a statute specifically written to prohibit impeding the work of Congress does not apply to the Capitol riot. Although the unprecedented events of January 6 raise some novel issues, the obstruction of justice charge comfortably fits those events and should be upheld.

Obstruction of Justice and the Capitol Riot

The government charged many Capitol rioters with obstruction under 18 U.S.C. 1512(c), which provides:

(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.

In particular, many of those who stormed the Capitol to “stop the steal” are charged under subsection (c)(2) with corruptly obstructing or impeding the official Congressional proceeding to certify the presidential election results.

A number of defendants — including several of those charged in the Oath Keepers conspiracy case, the largest conspiracy case arising from the riot —  have raised various challenges to the 1512(c) charge. They argue the statute should be interpreted narrowly to apply only to conduct akin to shredding documents or otherwise destroying evidence. They claim that the joint Congressional session to certify the election results was not an “official proceeding” within the meaning of the statute. And they argue the statute is unconstitutionally vague because it fails to indicate clearly what kind of actions will justify such felony charges, when others who took part in this riot or in other Capitol protests are charged only with misdemeanors or are not prosecuted at all.

The Origins of 1512(c)

Title 18, Section 1512 is titled “Tampering with a Witness, Victim, or Informant” and was first passed in 1982. Historically, as the name suggests, 1512 was a witness tampering statute. It applied to those who tried to obstruct a proceeding by influencing some third party. That included conduct such as killing or injuring a witness, using force or threats to persuade someone not to testify, or otherwise corruptly causing another person to conceal information from a proceeding.

Section 1512(c), quoted above, was added to the statute in 2002 as part of the Sarbanes-Oxley reforms enacted in the wake of the Enron scandal. But this new section doesn’t really rest comfortably within 1512. Although the rest of 1512 prohibits a defendant from obstructing a proceeding by doing something to someone else, the new 1512(c) is a broad catch-all prohibition that applies to obstruction carried out by a defendant himself. After the addition of section (c), therefore, 1512 – despite its title – was no longer limited to witness tampering.

Arthur Andersen logo

The Legacy of Arthur Andersen

To understand why Congress added 1512(c), you have to start with the Arthur Andersen case. The accounting giant Andersen was the auditor for Enron, the energy company that collapsed in 2001 in the largest corporate fraud in U.S. history. Andersen was indicted in 2002 for obstruction of justice for shredding millions of pages of documents related to its work for Enron. The shredding went on for weeks as stories about Enron’s troubles appeared in the press, the Securities Exchange Commission made preliminary inquiries, and the stock price plummeted. When the SEC finally opened an official investigation and subpoenaed Andersen for documents, it stopped the shredding.

Title 18 section 1505 is the obstruction of justice statute that directly applies to investigations by agencies like the SEC. But that statute requires that a proceeding was already pending at the time of the obstruction. Prosecuting Andersen under 1505 was not an option because when it was shredding the Enron documents the official SEC proceeding had not yet begun. 

So prosecutors charged Andersen under the old version of 1512, the witness tampering statute. Section 1512 specifically provides that a proceeding does not have to be pending at the time of the alleged obstruction. The government’s theory was that Andersen corruptly persuaded its own employees to destroy evidence relevant to the SEC’s upcoming investigation.

This was a pretty awkward theory because it’s kind of circular: an entity like Andersen can only be prosecuted based on the actions of its agents. But prosecutors were alleging that Andersen was corruptly persuading its own agents to obstruct the proceeding, which then resulted in Andersen being liable for their actions. This convoluted charge became a major issue at Andersen’s trial, with the defense mocking the theory and questioning who exactly was supposed to be the corrupt persuader. It nearly derailed the prosecution. (Andersen was convicted but the Supreme Court later threw out the conviction on other grounds.)

Congress Closes the Andersen Loophole

Arthur Andersen and Enron were very much on Congress’s mind when it passed the Sarbanes-Oxley Act; indeed, that bill was largely motivated by Enron’s collapse. Section 1512(c) was not part of the original bill but was added later as an amendment. The legislative history demonstrates that Senators thought it was a necessary addition to close the “loophole” revealed by the Andersen case. As Senator Trent Lott put it:

Current law prohibits obstruction of justice by a defendant acting alone, but only if a proceeding is pending and a subpoena has been issued for the evidence that has been destroyed or altered….

So this section would allow the Government to charge obstruction against individuals who acted alone, even if the tampering took place prior to the issuance of a grand jury subpoena. I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.

This is exactly the problem that was highlighted by the Andersen case, and Congress wanted to remove that problem. One way to do it – probably a better way — would have been to amend section 1505 to remove the pending proceeding requirement.  Instead, Congress added a new prohibition against obstructing justice to 1512, which does not require a pending proceeding. That did solve the Andersen problem: under the new 1512(c) Andersen could have been charged with obstruction itself and not with corruptly persuading its employees to obstruct. But it also ended up sticking a broad, catch-all prohibition on all obstruction of justice into a statute that, up to that point, had been focused only on witness tampering. That’s led to some controversy about the proper scope of 1512(c) – including the issues raised by the defendants in the Capitol riot.

Fishing boat

The Argument For a Narrow Interpretation: Yates v. United States

The defendants argue that 1512(c) should be read narrowly to apply only to obstructive conduct akin to the destruction of evidence — the kind of conduct that motivated passage of Sarbanes-Oxley. This argument doesn’t find much support in the plain text of the statute, which broadly prohibits any attempts to “obstruct, influence, or impede” a proceeding. But the defendants claim that the Supreme Court’s 2015 decision in another obstruction case, Yates v. United States, indicates that 1512(c) does not apply to their actions. The judges considering the defense motions to dismiss reportedly have expressed some interest in the idea that Yates might be relevant here. But that argument is misplaced.

Yates involved a different statute, 18 U.S.C. 1519, also passed as part of the Sarbanes-Oxley reforms. Yates was a fishing captain who was cited for catching undersized grouper in the Gulf of Mexico. He was instructed to preserve the fish as evidence until he returned to port, but instead he destroyed them. He was prosecuted under 1519 which provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Yates claimed this statute did not apply to his conduct because a fish was not a “tangible object” with the meaning of this statute. He argued that because 1519 was passed as part of the Sarbanes-Oxley reforms, it was primarily concerned with offenses like document shredding, such as that done by Arthur Andersen. In context, therefore, he said the term “tangible object” should be limited to objects similar to documents and records – objects that contain information. In a 5-4 decision, the Supreme Court agreed and reversed his conviction.

The Capitol riot defendants have argued that 1512(c), like 1519, should be interpreted in light of Congress’s purpose when enacting the Sarbanes-Oxley reforms.  Congress was primarily concerned with corporate misconduct and destruction of evidence. Section 1512(c)(1) clearly refers to that kind of conduct. Accordingly, they argue, the “otherwise” clause of 1512(c)(2) should likewise be narrowed to cover only conduct similar to the destruction of documents and records.

But virtually none of the Court’s reasoning in Yates translates to 1512(c). First, the Court in Yates noted that 1519 was a stand-alone statute that appeared toward the end of the chapter on obstruction of justice, alongside other statutes that more narrowly focus on specific kinds of conduct, not on obstruction generally. The Court also focused on some of the verbs in 1519, such as “covers up, falsifies, or makes a false entry in,” noting that although those verbs applied to tangible objects similar to documents and records, it was not possible to, for example, make a false entry in a fish. As for the nouns – “record, document, or other tangible object,” the Court held that rules of statutory construction dictate that when a general term like “tangible object” appears at the end of a list, it should be interpreted to be similar to the earlier terms in that list. 

None of those arguments work with 1512(c). First, 1512(c) is not a new stand-alone statute dealing with a specific kind of obstruction and appearing at the end of the chapter, it is an amendment to an existing general obstruction statute that applies in all kinds of proceedings. Second, the “otherwise” clause in 1512(c)(2) is in a different section of the statute from (c)(1). A separate section like (c)(2) is not a continuation of a single list of words, so the statutory interpretation tools applied in Yates don’t apply. In fact, the plain meaning of “otherwise” in (c)(2) suggests just the opposite: a different category of obstruction, not simply another variation on what has come before.

The Court in Yates also noted the title of 1519 – “Destruction, alteration, or falsification of records” – supported its holding that “tangible object” should be limited to objects similar to documents and records. The Capitol riot defendants have made a similar argument, noting that the title of 1512, “Tampering with a Witness, Victim, or Informant”, suggests the statute should have a narrower scope. But as noted above, the section in question here was added to 1512 long after it was first passed, and with the expressly stated purpose of expanding the scope of the statute beyond just witness tampering.

I think Yates was wrongly decided, as I argued here. And with the changes in the makeup of the Court, I think a majority today would more likely agree with Justice Kagan’s dissent arguing that the plain language of the statute should govern: a tangible object is simply an object that’s tangible, fish included. But regardless, Yates deals with a very different statute and is of limited use when considering the crime at issue here.

The Breadth of 1512(c)

One of the stronger arguments in favor of the narrower reading advocated by the defense is that without it (c)(2) becomes a sweeping, catch-all obstruction of justice statute that basically subsumes all others.  Crimes that could be charged under other, older obstruction statutes, such as 18 U.S.C. 1503 and 1505, other portions of 1512, and many charges under 1519, all could be charged under 1512(c)(2). The defendants argue that Congress would not make such a sweeping change by amending 1512. A similar argument was adopted by the Court in Yates; it said “tangible object” needed to be narrowly construed or else 1519 would overlap completely with 1512(c).

This argument would have more force if the obstruction of justice statutes were not already such a mess. Even before the Sarbanes-Oxley amendments, the statutes overlapped and duplicated each other considerably. For example, Section 1503 contains specific prohibitions against corruptly interfering with a judge or juror but then contains the so-called “omnibus clause” prohibiting any corrupt endeavor to impair, obstruct or impeded the due administration of justice – which subsumes all the specific prohibitions that come before and renders them unnecessary. Witness tampering under the old version of 1512 could frequently also be charged under 1503 or 1505, so long as the proceeding was already pending.

Congress added 1512(c) as a last-minute amendment. Perhaps it didn’t focus on the full sweep of the amendment or its effect on other statutes. But the plain language of the amendment they passed does operate as a broad, general prohibition on obstruction in all forms and in all types of proceedings. I’ve been telling my students for years that 1512(c)(2) is now pretty much the only obstruction statute a prosecutor needs. The fact that it overlaps with other obstruction statutes is not unusual, and is not a reason to disregard the plain language of the statute.

The Argument Over “Official Proceeding”

A number of the defendants have argued that the joint session of Congress to certify the election results is not an “official proceeding” within the meaning of section 1512. They claim that for purposes of the obstruction of justice statutes, “official proceeding” should be limited to adjudicatory or investigative hearings, where evidence is being heard and facts or rights being determined. Because the certification of the election results is largely a formality, they claim, it should not be considered an “official proceeding” for purposes of 1512.

(Side note: Donovan Crowl, one of the defendants in the Oath Keepers conspiracy case, actually argues that he can’t be charged with obstructing a Congressional proceeding because Congress had recessed by the time he entered the Capitol.  Well, yes – it had recessed because the Capitol was being attacked and the Members had to get to safety!  This argument reminds me of the old story about the kid who murders his parents and then asks the court for mercy because he’s an orphan.)

Title 18 U.S.C. 1515 defines “official proceeding” for purposes of section 1512 as including proceedings before courts and administrative agencies as well as “a proceeding before the Congress.” There is no further definition. As the government points out in its opposition, this plain language cuts against the defendants’ argument. The joint session of Congress to certify the election results is required by both the U.S. Constitution and by federal law. That certainly makes it seem “official.” It also is a “proceeding” as that term is commonly understood: the body in question coming together to do business.

Cases that have considered whether something qualifies as a “proceeding” have usually focused on the degree of formality present. For example, FBI investigations have been held not to be “proceedings” because they are informal and unstructured. “Proceeding” connotes some kind of official function that has a formal environment, a specific purpose, a defined beginning and end, and that takes place according to certain rules. An informal gathering of legislators chatting in the cloakroom or on a factfinding trip would lack this degree of formality and would not be considered an “official proceeding” of Congress. But the required joint session of Congress to certify the election meets the formality requirements.

Even if “official proceeding” were limited to adjudicatory proceedings as the defendants suggest, the joint session of Congress should qualify. As the government notes, the session involves finding facts being in the form of tallying the votes. Formal rules govern the process. Members may speak and object and may be overruled. There is a presiding officer – the Vice President — who controls the proceedings, akin to a judge. The joint session includes many aspects of an adjudicatory, fact-finding proceeding.

Suppose someone threatened a Member of Congress to force her to object to a particular state’s electoral votes, or forged the records of the electors from a state and submitted those false votes as part of the official count. Surely those acts would qualify as obstruction of an official proceeding. Participating in a riot to shut down the entire process should qualify as well.

Usually, in statutory interpretation, if the plain language of the statute is clear that’s the end of the inquiry. And there’s no logical reason Congress would want to protect, say, a routine subcommittee hearing from disruption but not protect the constitutionally-mandated joint session to certify the election.

The Vagueness Argument

The defendants also argue that the obstruction of justice statute, as applied to their conduct, is unconstitutionally vague. The vagueness doctrine applies when it would be unclear to the average person what the law prohibits, or when a statute is so standardless that it invites arbitrary or discriminatory enforcement.

The vagueness argument boils down to this: the defendants had no reason to suspect that participating in a riot where hundreds stormed the Capitol, broke doors and windows, scaled walls, forced their way past barricades, and assaulted scores of police officers — all with the goal of intimidating Congress and stopping it from certifying the election results — might violate a statute that prohibits corruptly interfering with the work of Congress. Merely stating the argument highlights how absurd it is.

The defendants argue that the term “corrupt” in section 1512 renders the statute impermissibly vague. They claim it is unclear what kind of conduct is “corrupt” and thus what will distinguish obstruction of Congress from lesser misdemeanor offenses, such as disorderly conduct in Congress, with which many of the rioters are also charged.

But the requirement of corrupt intent is common in criminal statutes. In white collar crimes, corrupt intent is frequently what distinguishes perfectly legal conduct from criminal activity. For example, if I shred the files in my own office because I’m decluttering, that’s perfectly legal. If I shred those same files with the corrupt intent to destroy them because they’ve been subpoenaed by a grand jury, that same conduct now becomes obstruction of justice.

Corrupt intent is commonly defined as acting with wrongful, immoral, evil, or depraved purpose. Juries are instructed on this all the time, as an element of the offense that they must find beyond a reasonable doubt. As the government pointed out in its opposition, the presence of corrupt intent is what distinguishes the acts of these defendants from legitimate political protests or other legitimate attempts to influence the Congress. It will be the government’s burden to prove that corrupt intent at trial. And the requirement that the government prove wrongful, evil or depraved intent prevents the statute from sweeping too broadly and provides adequate notice to the public concerning the kind of conduct that is prohibited.

Is Obstruction of Congress Different?

The defendants argue that Congress is different, and the statute is therefore more vulnerable to a vagueness argument, because there are many legitimate ways to try to influence Congress, including peaceful protests or lobbying. A statute that criminalizes only corrupt attempts to influence Congress, they argue, fails to provide adequate notice concerning what is allowed and what is not.

But this issue is not unique to Congress. Section 1512 also criminalizes corruptly trying to influence court proceedings. There are people who try to influence court proceedings every day – they’re called lawyers. The efforts of advocates to influence the courts are obviously not criminal. But if an attorney acts with corrupt intent by, for example, deliberately filing false pleadings, tampering with evidence or witnesses, or engaging in other improper behavior, that attorney can be prosecuted.

Part of what is going on here is the attempt to rewrite history and cast the Capitol rioters as simply political protestors. The defendants repeatedly characterize their actions on January 6 as political protest and speech. They claim that if they can be prosecuted for obstruction, others engaged in legitimate First Amendment activities will fear future prosecution as well. But the factual distinctions between legitimate political protest and the unprecedented events of January 6 are clear. They indicate the presence of corrupt intent, which can readily be found by a jury.

As far as I’m aware, no court has ever held that the corrupt intent requirement of section 1512 renders that statute unconstitutionally vague. The Supreme Court discussed the corrupt intent requirement of 1512 in the Arthur Andersen case but never suggested that the requirement rendered the statute vague. And defendants who participated in a violent assault like this one are in a very poor position to argue they had no idea they might be subject to prosecution for disrupting the work of Congress.

“Just Trust Us”

Statutes can also be found impermissibly vague if they are so standardless that they invite discriminatory or arbitrary enforcement. In these cases that argument has taken the following form: with many of the rioters, the government charged them only with misdemeanors, such as disorderly conduct or unlawfully entering a federal building. It’s not clear, the defendants argue, why they are charged with felony obstruction and others are not. And that, they claim, renders the statute vague as applied to them.

During recent hearings challenging the obstruction charge, two federal judges reportedly told prosecutors they were concerned about this issue, noting that prosecutors were essentially saying “trust us,” we will only bring the obstruction charge in cases where the conduct was really bad. This may have just been judicial musing from the bench, because on closer examination the criticism doesn’t make much sense.

We do, in fact, trust prosecutors every day to make decisions about what kind of charges are appropriate, based on the facts of particular cases. That’s a large part of a prosecutor’s job. Suppose a prosecutor has evidence that a contractor handed a politician a bag full of money. We trust the prosecutor to decide what to charge, based on whether she thinks she can prove the payment was part of a corrupt quid pro quo and therefore bribery, or just a thank-you payment for an official act and thus the lesser crime of gratuities, or maybe just a misdemeanor supplementation of salary offense under 18 U.S.C. 209 — or no crime at all. That charging decision involves the prosecutor making a judgment about the facts and what she can prove about the defendant’s intent.

If there is an allegation of insider trading, we trust prosecutors to determine whether they can prove it was a “willful” violation and therefore subject to criminal prosecution, or whether it should just be left to civil enforcement by the SEC. If there is a homicide, we trust the prosecutor to determine whether the appropriate charge is first degree murder, second degree, manslaughter, or something else, based on the level of intent.

The same is true for the Capitol riot cases. The facts of these cases and the roles of individual defendants vary widely. It’s the prosecutors’ job to review the evidence and determine which ones, in their view, demonstrate corrupt intent justifying the obstruction charge. That could be based on violence, the amount of time inside the Capitol or the areas they entered, or on other acts by particular defendants demonstrating the wrongful and evil intent required.

And it’s not true, of course, that this means simply trusting the prosecutors’ judgment on these questions. It ultimately will be the prosecution’s responsibility to prove the element of corrupt intent to the jury, which acts as a check on that decision. And if defendants believe they have evidence that prosecutors are making those choices for an improper reason, such as targeting particular defendants for their political views rather than their actions, they can make an appropriate motion and a judge can decide.

This is not to say that prosecutors always do a perfect job when making these decisions. But there is nothing at all unusual about prosecutors examining the facts and deciding which cases justify a more serious felony charge. And the fact that prosecutors make those charging decisions does not mean statutes are impermissibly vague.

Like this post? Click here to join the Sidebars mailing list.

The Capitol Riot, Infowars, and the Definition of Journalism

Earlier this summer, Attorney General Merrick Garland announced revisions to the Department of Justice internal rules on obtaining records from journalists. With limited exceptions, the policy provides that DOJ will not subpoena information from members of the “news media” who were engaged in “newsgathering activities.” Now a case arising from the January 6 Capitol riot has highlighted a question posed by this policy: who qualifies as a member of the news media entitled to its protections? More specifically: is the conspiracy-touting, right-wing website Infowars engaged in journalism? The answer to this question has implications far beyond cases involving the insurrection at the Capitol.

The Owen Shroyer Case

Jonathon Owen Shroyer is the host of a daily program that streams on Infowars, “The War Room with Owen Shroyer.” Infowars is a “news service” website led by Alex Jones. Jones and Infowars are noted for promoting various conspiracy theories, including that the 2012 shooting of twenty children and six adults at Sandy Hook elementary school was faked and that a Washington, D.C. pizza parlor housed a child sex trafficking ring associated with Hillary Clinton – a conspiracy hoax that became known as “Pizzagate.” Jones, Shroyer, and Infowars have been banned from most social media sites for spreading disinformation.

Infowars was a favorite of former president Trump, who routinely praised Jones and echoed the site’s outrageous claims. Infowars also played a significant role in helping perpetuate the “big lie” that the 2020 presidential election was stolen. After Trump lost re-election, Shroyer led a nine-city tour of “Stop the Steal” rallies. He was also featured in materials published by Infowars promoting the January 6, 2021 rally in Washington and urging people to attend and “fight for Trump.”

Exhibit from the Shroyer Arrest Warrant

On January 5, Shroyer spoke at a rally at Freedom Plaza in D.C. where he said, “Americans are ready to fight! . . . We are the new revolution!” Video footage allegedly shows him taking part in marching to the Capitol on January 6, exhorting the mob to stop the election from being “stolen,” and leading the crowd in a chant of “1776!” At one point during the rally, he called live into an Infowars broadcast and reported, “They’ve taken the Capitol grounds, they’ve surrounded the building itself, they’re on the actual building structure. . . . We literally own these streets right now.”

Last week, Shroyer was arrested for his role in the Capitol riot and appeared in court in Washington, D.C. Prosecutors have charged him with entering a restricted area of the Capitol and with unlawfully attempting to impede the work of Congress. Both offenses are misdemeanors. It appears he will maintain that he was covering the events in Washington as a journalist for Infowars.

The Judge’s Inquiry

On August 19, U.S. Magistrate Judge Zia Faruqui held a telephone conference with prosecutors regarding the arrest warrant for Shroyer. Faruqui asked prosecutors whether they considered Shroyer a member of the news media and whether they had complied with the new DOJ media regulations when investigating him. Prosecutors said they had followed the guidelines, but declined to provide specifics. This caused Faruqui to issue an opinion a few days later, expressing his displeasure. He claimed that prosecutors in other cases have provided more details about their compliance with the regulations, and it troubled him they did not do so here: “The Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen.”

Faruqui’s opinion is a little odd, in that it doesn’t order the prosecutors to do anything. He ultimately signed the arrest warrant, concluding that even if Shroyer was a journalist there was ample evidence that he committed a crime. It appears Faruqui just wanted to make a clear record of his request and of his concerns about whether DOJ was in fact following its own media guidelines.

In a letter to the court, John Crabb, Jr., Chief of the Criminal Division at the U.S. Attorney’s Office, responded with the polite legal equivalent of, “Buzz off.” Crabb wrote that enforcing internal regulations like the media guidelines is committed to DOJ’s sole discretion. It is not the court’s role, he argued, to police DOJ’s application of internal policies that have nothing to do with the finding of probable cause. He also argued that such inquiries by the court might impede “frank and thoughtful deliberations within the Department” about how to apply the regulations.

Crabb is clearly right here, and Faruqui was out of line. The DOJ “Justice Manual” contains many policies about how to interpret and enforce certain areas of the law. Department attorneys may be subject to internal discipline for failing to follow those policies. But it is well-established that those policies do not create rights that may be enforced by outside parties. These are voluntary internal operating rules, not laws passed by Congress.

If Shroyer believes he has some kind of First Amendment defense based on his alleged status as a journalist, he can file a motion and the judge can rule on it. But under the separation of powers, it’s not Faruqui’s role to probe DOJ’s application of its own voluntary policies that have nothing to do with the legal merits of the case. At some level Faruqui himself seems to recognize this, since he issued his opinion but did not require DOJ to do anything in response.

US Dept of Justice
U.S. Department of Justice

DOJ’s Media Guidelines

As noted above, Faruqui’s inquiry was based on DOJ’s recently-modified guidelines about subpoenas to members of the media. Those guidelines have been around in various forms for decades. They represent the Department’s effort to balance the needs of law enforcement with the important First Amendment interests of the news media in gathering information without fear of government interference or punishment.

Journalists have long argued that they should have a legal privilege to refuse government demands for information about their reporting and sources. They claim such a privilege is necessary to protect the vital role of the free press in rooting out government misconduct. They argue that, absent such a privilege, government leakers and other sources of information who may fear reprisals if discovered will refuse to speak to reporters. Just as communications to lawyers and doctors are shielded from disclosure by the legal system, they argue, communications to journalists should be protected in order to ensure the free flow of information to the public.

[Side note: I think the arguments for the reporter’s privilege are wrong and that the privilege is a bad idea. I’ve written a lot on that topic – including in the very first post on this blog. Those arguments are beyond my scope here, but if you are interested in a deeper dive you can check out my blog posts here, here, and here, and law review articles here and here.]

In the landmark 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not create a privilege that allows journalists to refuse to testify, at least in federal criminal proceedings. In the aftermath of Branzburg, DOJ adopted its media guidelines, recognizing that even if the Constitution did not require it, DOJ should recognize the First Amendment interests at stake and exercise its discretion not to pursue information from journalists in most cases.

Battles Over the Reporter’s Privilege

There have been a few high-profile fights between DOJ and journalists who resisted complying with court orders to reveal information about their sources, although overall such cases are quite rare. Perhaps the most notable example involved New York Times reporter Judith Miller, who was jailed for nearly three months in 2005 when she refused to reveal her source to a grand jury investigating the leak of a CIA agent’s identity. (Vice president Dick Cheney’s chief of staff, Scooter Libby, was ultimately convicted of perjury and obstruction of justice in that investigation. Libby was pardoned by president Trump in 2018.)

Another dispute involved yet another New York Times reporter, James Risen, who refused to reveal his source for a story that revealed classified information about a covert U.S. government operation in Iran. Risen took his fight all the way to the U.S. Supreme Court, and the courts ruled he had no privilege and could be compelled to testify. Risen made it clear that he, like Miller, would go to jail rather than comply. The government ultimately backed down, chose not to call him as a witness, and managed to convict the source, Jeffrey Sterling, without Risen’s testimony.

During the Obama administration, the Justice Department under Attorney General Eric Holder was strongly criticized by media organizations for its pursuit of those who leaked classified information to the press. Obama’s DOJ was accused of engaging in a “war on the press” — a ridiculous charge, as I explained here. Nevertheless, responding to that criticism, Holder held meetings with media representatives and updated the DOJ guidelines to make it even more difficult for prosecutors to subpoena information from journalists. In general, such information could be sought only when it was vitally important to the case, when alternative avenues to obtain the information had been exhausted, and when the request was approved by high level DOJ officials.

Early in the Biden administration, DOJ disclosed that Trump’s Justice Department had secretly sought email and phone records of several reporters at the Washington Post, New York Times, and CNN, in connection with investigations of leaks of classified material. When asked about the disclosures, Biden said that seeking such records from journalists was “simply wrong” and that he would not allow it in his administration.

As a result, last July 19, as noted above, Garland issued a memo saying the media guidelines would be amended again and would now contain a flat prohibition on the use of compulsory process to seek information from members of the news media who were engaged in newsgathering activities. (There are still some limited exceptions, such as when the journalist himself is under investigation for committing a crime, is an agent of a foreign power, or when disclosure is necessary to prevent imminent risk of death or serious bodily harm.) These are the updated guidelines about which Judge Faruqui was inquiring in the Shroyer case.

Is Shroyer a Journalist?

The DOJ media guidelines have been around for decades but have never defined who qualifies as a journalist under those guidelines. The governing regulations associated with those guidelines provide that whether someone is a member of the “news media” engaged in “newsgathering activities” must be determined on a case-by-case basis – but provide no guidance on how to make that determination. So is Infowars engaged in journalism, and is Shroyer a journalist?

Unlike professions such as law or medicine, which also enjoy certain legal privileges, there are no particular educational or licensing requirements to help define who is a journalist. In one sense, journalism is more of a process than a profession. Merriam-Webster defines journalism as “the collection and editing of news for presentation to the public.”  This could include anyone from a reporter for a national newspaper to a pajama-clad blogger working from home. The First Amendment’s protections apply equally to all such speakers and do not depend on the popularity of the views being expressed.

Fifty years ago, when media consisted primarily of newspapers, magazines, and the three major television networks, the Supreme Court observed that attempting to define who is a journalist for purposes of a legal privilege would be a “questionable procedure” that would “present practical and conceptual difficulties of a high order.” The rise of the Internet and the explosive growth of the media universe in the decades since have made that task exponentially more difficult. Now anyone with a cell phone can potentially disseminate information to millions of people and claim to be engaged in citizen journalism.

For years, efforts to enact a federal reporter’s privilege statute in Congress have foundered, at least in part, over the problem of defining who is a “journalist” entitled to invoke the privilege. Any such definition necessarily puts the government in a position of deciding which First Amendment speakers are “real” journalists deserving of special legal protections – a dubious Constitutional exercise. Even some in the media have opposed the idea, arguing that it amounts to allowing the government to license journalists.

One proposed solution is to limit the definition of journalists to those who make a substantial portion of their livelihood by gathering and disseminating news to the public. But that has problems as well. Such a definition tends to favor large, established media organizations and their staff over small, independent bloggers and other upstarts who may work for little or no money but often break major stories. And if the purpose of a privilege is to increase the flow of information to the public, it doesn’t make much sense to shield the communications of a reporter for a small local paper with a few hundred readers but not those of an independent blogger with a readership in the millions.

Shroyer allegedly participated in the riot, but at the same time was broadcasting information concerning what was happening to Infowars’ substantial audience. That portion of his activities, at least, would seem to qualify as journalism. But if Shroyer broadcasting live scenes from the Capitol qualifies, how about an individual blogger who attended and posted scenes on Facebook live or on her own blog? That person, too, is providing information to the public – the essence of journalism. Should the blogger also be shielded from investigation by the DOJ policy? Should subpoenaing the Facebook posts to further the investigation of the riot now be off-limits?

Lawyers love “slippery slope” arguments, and sometimes the dilemmas they pose are overstated. But defining who qualifies as a journalist and who doesn’t is a real problem with significant constitutional implications – at least if you are talking about granting special legal privileges to journalists that other First Amendment speakers do not enjoy.

What’s At Stake

Journalists can’t commit crimes in the course of reporting and claim they are immune. A reporter cannot, for example, break into someone’s office to steal documents and then defend herself by claiming she were working on a story. Whether or not Shroyer is a journalist is not going to determine whether he can be prosecuted. Judge Faruqui recognized that when he signed the arrest warrant even while questioning whether Shroyer was a member of the media. But Shroyer’s case does highlight the minefields for law enforcement in this area.

In the Internet age, the number of people who can credibly call themselves journalists, or say they are engaged in gathering news for delivery to the public, has grown dramatically. A policy that declares the records of any such person to be off limits has the potential to put a great deal of information outside the reach of law enforcement. That could severely hamper efforts to investigate not only major crimes like the Capitol riot but more everyday incidents as well.

It’s one thing if this is just an internal DOJ policy. That leaves the Justice Department free to investigate cases like Shroyer’s when it determines the policy does not apply – even if the occasional judge Faruqui improperly tries to look over prosecutors’ shoulders. But when announcing the updated guidelines, Garland also said DOJ would support Congressional efforts to enact a federal reporter’s privilege statute. If that happens, then a whole new generation of Internet “journalists” like Shroyer will routinely will invoke that legal privilege to resist requests for information, fight subpoenas, and seek to thwart prosecutions.

DOJ should be careful what it wishes for. By endorsing federal legislation that prohibits seeking information from all those engaged in “newsgathering,” DOJ would hand a weapon to defendants like Shroyer who seek to shield their criminal activities. Congress should think twice before putting the force of federal law behind such a weapon.

Like this post? Click here to join the Sidebars mailing list