The Supreme Court decided a case Friday that will affect the prosecutions of around 350 individuals charged in connection with the events at the Capitol on Jan. 6, 2021. And the decision could also well affect two of the four charges brought by special counsel Jack Smith that are pending against former President Donald Trump in federal court in Washington, D.C.
The case arose from the prosecution of Joseph Fischer, who attended the “Stop the Steal” rally on the Ellipse on Jan. 6 and subsequently entered the Capitol with hundreds of others. Fischer claims that he was inside the Capitol for less than four minutes and that he was pushed into the police line by the surging crowd, but prosecutors contend that Fischer was among those who urged the crowd to “charge” and was part of a mob that pushed the police.
A grand jury returned a seven-count indictment against Fischer, charging him with assaulting police officers, entering and remaining in a restricted building, and engaging in disorderly and disruptive conduct within the Capitol.
Although Fischer did not contest the sufficiency of six of the charges returned against him, he filed a motion to dismiss the charge that he violated 18 U.S.C. § 1512(c)(2) by corruptly obstructing, influencing, or impeding an official proceeding—in this case, Congress’s certification of the Electoral College vote. Fischer argued that this code section only applies to evidence tampering designed to impair an inquiry or investigation.
This is significant because, as previously stated, approximately 350 other Jan. 6 defendants have been charged with violating this provision, and Count Three of the four-count indictment against Trump alleges a violation of this code section.
At its core, Fischer v. United States is about the meaning of a law passed in the wake of the Enron accounting scandal in the early 2000s—not whether the events of Jan. 6 were a riot or insurrection. When Enron discovered that its financial practices were being investigated by federal regulators, executives at the company’s auditor, Arthur Andersen, ordered the destruction of countless documents. They even brought in multiple shredders so they could destroy around 7,000 pounds of documents per hour for two weeks straight.
At the time, federal law forbade directing another person to destroy evidence of financial wrongdoing. But it didn’t ban a person from acting alone to destroy evidence. Congress subsequently enacted 18 U.S.C. § 1512(c), violations of which can result in a sentence of up to 20 years’ imprisonment, as part of the Sarbanes-Oxley Act to close that loophole.
Section 1512(c) contains two clauses. The first—§ 1512(c)(1)—imposes criminal penalties on anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” with an intent “to impair the object’s integrity or availability for use in an official proceeding.” The second—§ 1512(c)(2)—does the same for anyone who corruptly “otherwise obstructs, influences, or impedes any official proceeding” or attempts to do so.
The district court granted Fischer’s motion to dismiss that count of the indictment, but that ruling was overturned by a divided panel of the U.S. Court of Appeals for the D.C. Circuit, which held that the word “otherwise” in § 1512(c)(2) is unambiguous and refers to obstructing proceedings in different ways than those described in § 1512(c)(1). Consequently, the provision could apply to any act “committed in furtherance of an attempt to stop Congress from performing a constitutionally required duty.”
Judge Gregory Katsas dissented, arguing that the majority’s sweeping interpretation—that § 1512(c)(2) banned any obstructions of an official proceeding—rendered other provisions that criminalized a variety of acts that obstruct official proceedings, as well as their different penalties, pointless. In his view, “otherwise” indicated similarity, not difference. He therefore concluded that “otherwise” limited the scope of § 1512(c)(2) to prohibit only obstructions that “impair the integrity or availability of evidence.” Since Fischer’s actions were not designed to impair the integrity or availability of any evidence connected to an inquiry or investigation, Katsas opined that the trial judge acted properly by dismissing that count of the indictment.
The Supreme Court by a 6-3 vote agreed with Katsas. Chief Justice John Roberts wrote the majority opinion, which was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.
The court agreed with Fischer’s argument that the word “otherwise” should be understood in light of its context. Applying the rules of statutory interpretation that a term or phrase is given a more precise meaning by the surrounding words or by specific terms preceding it in a list, Roberts explained that “otherwise” is limited in scope. Here, that meant that the first clause of Section 1512(c)—which focuses on the availability and integrity of evidence—limits the scope of the second clause that prohibits “otherwise” obstructing official proceeding.
The history of the clause, Roberts added, further supports this reading: It would be odd for Congress to hide a “catchall” provision, as the government described it, in the middle of Section 1512 if that provision did far more than plug the loophole exposed by the Enron financial scandal.
Turning to the government’s objections, Roberts observed that a broad reading would make this “residual” clause swallow the preceding statutory language. Indeed, he added, the government’s reading would make the clause so broad that it would make several other statutory provisions superfluous. Prosecutors could also seek a 20-year penalty for crimes that Congress saw fit to punish with lesser penalties. A broad reading of subsection (c)(2), Roberts further emphasized, “would criminalize a broad swath of prosaic conduct,” including actions by “a peaceful protestor,” as the solicitor general conceded at oral argument.
Responding to the dissent’s argument that the majority’s reading suffered from its own problems with superfluity, Roberts pointed out that if it did, it created less than the dissent’s—and government’s—broad interpretation.
In sum, the majority concluded, “[a]though the government’s all-encompassing interpretation may be literally permissible, it defies the most plausible understanding … .”
Jackson, concurring with the majority’s opinion, wrote separately to highlight that the legislative history of Section 1512(c)(2) supported a narrow reading. While making it quite clear that she disapproved mightily with the conduct Fischer is alleged to have done, this case, she emphasized, was not about “the immorality of those acts” that occurred on Jan. 6, 2021, but rather “the scope of the particular crime” outlined in Section 1512(c)(2). Reviewing the legislative record, Jackson underscored that Congress was concerned with the destruction or fabrication of evidence, and that nothing suggested Congress intended to create a “sweeping, all-purpose obstruction statute.”
Justice Amy Coney Barrett, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, criticizing the majority for doing “textual backflips” to reach its narrow reading of Section 1512(c)(2). A plain reading of the statute, Barrett stated, shows that it prohibits “[b]locking an official proceeding from moving forward.”
At the end of the day, Fischer might have won at the Supreme Court, but he and other Jan. 6 defendants still have a long road of litigation ahead of them. The Supreme Court sent Fischer’s case back to the appeals court so it can reassess whether Fischer’s conduct actually is covered by Section 1512(c)(2) in light of this opinion. Although it is doubtful that his conduct and that of the other Jan. 6 defendants will fall within the parameters of that statute, Fischer still faces numerous other charges that he will need to defend against in the trial court.
On top of that, the Department of Justice declared that if it suffered a loss at the Supreme Court—as it did in Fischer’s case—it would seek more prison time for convictions under other statutes.
Significantly, Fischer’s win Friday at the Supreme Court will likely impact Smith’s D.C. prosecution of Trump. Smith charged Trump with obstructing the electoral vote certification in violation of Section 1512(c)(2), as well as engaging in a conspiracy to obstruct an official proceeding in violation of Section 1512(k). Smith will now have to show that Trump impaired, attempted to impair, or conspired with others to impair the availability or integrity of documentary or testimonial evidence used in an official proceeding.
Regardless of whether he can make that showing, which seems doubtful, additional court proceedings over whether Smith can even continue prosecuting Trump under these code sections will likely ensure that this case against Trump will not reach a trial before the election. And, of course, we will still have to assess the impact of the Supreme Court’s decision in the presidential immunity case, which the court will likely issue on Monday.
