Sotomayor, J., dissenting
pending investigation or proceeding is not required to qualify as generic obstruction of justice.
A reexamination of the sources relied upon by the majority, with the appropriate focus on discerning the trunk of obstruction of justice, rather than its various branches or offshoots, leads to the opposite result: To qualify as “an offense relating to obstruction of justice” under §1101(a)(43)(S), a predicate offense must require a pending investigation or proceeding.
A
As an initial matter, the majority glosses over the critical fact that “obstruction of justice” was an established term of art at the time of §1101(a)(43)(S)’s enactment in 1996. This is a major first misstep because “[w]here Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” George v. McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted).
From the “old soil” until today, “obstruction of justice” has required a pending investigation or proceeding. In 1831, Congress forbade efforts “to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty” or “to obstruct or impede, the due administration of justice therein.” Act of Mar. 2, 1831, ch. 99, 4 Stat. 488 (emphasis added). This provision, which became §5399 of the Revised Statutes, see Rev. Stat., Title 70, ch. 4, §5399 (1875), laid “the foundation for the modern statutory incarnation of the offense of obstruction of justice.” E. Murphy, Manufacturing Crime: Process, Pretext, and Criminal Justice, 97 Geo. L. J. 1435, 1473 (2009).
In Pettibone v. United States, 148 U. S. 197 (1893), this Court confirmed that §5399 required a pending proceeding. After describing the law as criminalizing “obstruction of the due administration of justice in any court of the United
