CASE PREVIEW

Jan. 6 defendant asks Supreme Court to throw out obstruction charge

The Supreme Court will hear oral argument on April 16 in the case of a former police officer from Pennsylvania who entered the Capitol during the Jan. 6, 2021, attacks. Joseph Fischer, who was charged with (among other things) assaulting a police officer, disorderly conduct in the Capitol, and obstruction of a congressional proceeding, has asked the justices to throw out the charge that he obstructed an official proceeding, arguing that the law that he was charged with violating was only intended to apply to evidence tampering.

More than 300 other Jan. 6 defendants have been charged with violating the law, which was enacted as part of the Sarbanes-Oxley Act in the wake of the Enron scandal. It is also at the center of two of the charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C. – the same case in which the justices will hear argument on April 25 regarding Trump’s claims of immunity.

Before the Jan. 6 attacks on the Capitol, prosecutors note, Fischer sent text messages in which he indicated to acquaintances that members of Congress “[c]an’t vote if they can’t breathe … lol” and that he might need his police chief “to post my bail … It might get violent.” And on Jan. 6, prosecutors say, Fischer urged rioters to “charge” and “hold the line” and was part of the mob that pushed the police. Fischer says that he arrived at the Capitol after the joint meeting of Congress to count the certified votes in the 2020 presidential election had already gone into recess. He was inside the building for only a few minutes, he contends, where he was pushed into the police line by the crowd.

In a message on social media on Jan. 7, Fischer wrote that he had been “pepper balled and [pepper] sprayed … but entry into the Capital [sic] was needed to send a message that we the people hold the real power.”

The FBI arrested Fischer on Feb. 19, 2021, and charged him with, among other things, assaulting officers of the Capitol Police and the Metropolitan Police Department, the primary law enforcement agency for the District of Columbia. He was also charged with violating 18 U.S.C. § 1512(c)(2), which makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.”

U.S. District Judge Carl Nichols dismissed the obstruction charge against Fischer. In another case involving a Jan. 6 defendant, Nichols had concluded that the previous subsection, Section 1512(c)(1), which prohibits tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding,” limits Section 1512(c)(2) to cases involving evidence tampering that obstructs an official proceeding.

The government appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which reversed. Judge Florence Pan, in the lead opinion for the court, wrote that the “meaning of the statute is unambiguous”: It “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the prior subsection.

Pan acknowledged that “outside of the January 6 cases brought in this jurisdiction, there is no precedent for using” the obstruction provision “to prosecute the type of conduct at issue in this case.” But, Pan continued, quoting a 2001 decision by the Supreme Court, “the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.”

Judge Gregory Katsas dissented. He wrote that the government’s interpretation of the law would render it “both improbably broad and unconstitutional in many of its applications.”

Fischer then came to the Supreme Court, asking the justices to weigh in on the scope of Section 1512(c), which they agreed to do in December.

In his brief on the merits, Fischer again argues that Section 1512(c)(2) only applies to cases involving evidence tampering involving a congressional inquiry or investigation. When interpreting the law, he first contends, courts must look at the entire law, in context and in light of its place in the broader statutory scheme.

The listing of specific acts of tampering – altering, destroying, mutilating, or concealing – in Section 1512(c)(1), Fischer insists, limits the scope of Section 1512(c)(2), on obstruction. The use of the word “otherwise” in Section 1512(c)(2) links the two, Fischer writes, signaling that the acts that fall under the second subsection must be related to those in the first.

That conclusion, Fischer continues, is also backed by basic principles used by courts to interpret statutes. For example, Fischer’s more limited interpretation is also consistent with the title of the law: “The Corporate Fraud and Accountability Act.” Moreover, he adds, the government’s interpretation would render Section 1512(c)(1) meaningless, because there would be no need to specify in it that destroying certain kinds of records is prohibited “if any act of interference of any official proceeding counts as obstruction” under Section 1512(c)(2).

The Supreme Court’s prior cases interpreting the Sarbanes-Oxley Act also support a more limited interpretation of Section 1512(c)(2), Fischer suggests. Nearly a decade ago, in Yates v. United States, the court held that a fish was not a “tangible object” for purposes of a provision making it a crime to destroy or conceal “any record, document, or tangible object” to obstruct an investigation by a federal department or agency. Justice Ruth Bader Ginsburg explained, Fischer notes, that although fish are tangible objects, “it would cut” the provision at issue “loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size and significance, destroyed with obstructive intent.”

The history of Section 1512(c) also weighs in his favor, Fischer maintains. The predecessors to Section 1512(c)(1) were focused on tampering with evidence, and the law was enacted in the wake of the Enron accounting fraud scandal and the disclosure that the company’s outside auditor, Arthur Andersen LLP, had destroyed documents that could be incriminating for the company. “Nothing in the statutory or legislative history of Section 1512(c) supports the view that Congress intended subsection (c)(2) to reach acts unconnected to evidence, such as a protest at the Capitol,” Fischer stresses.  

Finally, Fischer criticizes the government’s interpretation of Section 1512(c)(2) as “breathtaking” in its scope, particularly when the government would not even limit it to inquiries or investigations, Fischer says. “So anything that affects or hinders a proceeding falls within the government’s definition” – including, Fischer suggests, political speech protected by the First Amendment, such as “lobbying, advocacy, and protest.”

Fischer similarly decries the D.C. Circuit’s interpretation of Section 1512(c)(2) as “unprecedented.” Before the Jan. 6 cases, he observes, courts had never applied the provision to cases that had not involved the availability or integrity of evidence, and no defendant had ever been convicted under the provision in a scenario that did not involve a legislative investigation.

The federal government counters that Section 1512(c)(2) is not limited to conduct involving the availability of evidence but is instead a “catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding.” Nothing in the text of Section 1512(c) imposes the kinds of limits that Fischer suggests, U.S. Solicitor General Elizabeth Prelogar writes. To the contrary, words like “obstruct” and “impede” are broad terms that can encompass all kinds of conduct that block or hinder official proceedings.

The broad scope of Section 1512(c)(2) is bolstered by the statute’s use of the word “otherwise,” the government says. Contrary to Fischer’s argument, the federal government contends, the term “otherwise” does not require some connection between the two subsections but “instead is a typical way of introducing a catchall clause that sweeps beyond what came before.”

Fischer’s interpretation of “otherwise” as limiting the scope of Section 1512(c)(2) to obstruction focused on evidence tampering would render it meaningless because it would be duplicative of Section 1512(c)(1), the government argues. Indeed, the government notes, Fischer does not identify any conduct to which Section 1512(c)(1) would apply but not Section 1512(c)(2).

The government pushes back against Fischer’s reliance on the Supreme Court’s decision in Yates. That ruling, the government writes, does not actually help Fischer because the phrase “tangible object” followed a list of specific items – “record, document” and therefore should be interpreted in light of those terms. By contrast, the government reasons, Section 1512(c) is broken up into two different paragraphs. Moreover, the government adds, the court in Yates “reasoned that it would make no sense to prohibit ‘falsifying’ or ‘making a false entry in’ an object, like a fish, that is not used to ‘record or preserve information.’ But there is no similar textual incongruity in adhering to the ordinary meaning of the words in Section 1512(c)(2): It is perfectly sensible to speak of a person who ‘obstructs, influences, or impedes’ an ‘official proceeding.’”

The government acknowledges that Section 1512(c) was enacted in the wake of the Enron scandal. In drafting Section 1512(c)(1), the government explains, Congress intended to close the loophole exposed by that scandal – specifically, that the federal obstruction laws did not prohibit people from destroying documents themselves. But Section 1512(c)(2), the government continues, was enacted “to address the larger problem the Enron scandal brought to light — namely, the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.”

Finally, the government dismisses any concerns that Section 1512(c)(2) could be used too broadly, including to target, for example, speech protected by the First Amendment, as “policy-focused speculation” that “provides no basis for departing from Section 1512(c)(2)’s unambiguous test.” That suggestion, the government continues, also “fails to account for” the provision’s “significant limits.” For example, the government stresses, Section 1512(c)(2) only applies to “acts that hinder a proceeding,” and the provision also requires a defendant to act “corruptly,” which requires more than proof that defendant’s act was intentional or knowing. And in any event, the government concludes, the First Amendment does not give Fischer “any right to assault police officers inside the Capitol as part of an effort to impede an official proceeding.”

A ruling in Fischer’s case is expected by late June or early July. In his filing in the presidential immunity case on Monday night, Smith argued that the obstruction-related charges against Trump would still be valid even if the court were to adopt “the evidence-impairment gloss urged by” Fischer, because the charges against Trump rested, in part, on efforts to use phony electoral certificates at the joint session of Congress. Those charges also only account for two of the four counts against him; he has also been charged with conspiracy to defraud the United States and conspiracy to interfere with constitutional rights, such as the right to vote. But Smith and his team will no doubt be watching the case closely.

This article was originally published at Howe on the Court.