OPINION ANALYSIS

Justices rule for Jan. 6 defendant

This article was updated on June 28 at 4:22 p.m.

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

The Supreme Court heard oral argument on April 25 on Trump’s claims of immunity and has not yet issued its decision in that case. But Smith has argued that even if the court were to rule for Fischer, the charges against Trump could still go forward because they rested, in part, on efforts to use false electoral certificates at the joint session of Congress.

The law at the center of Fischer’s case is 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 concluded that because the previous subsection, Section 1512(c)(1), bars tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding,” Section 1512(c)(2) only applies to cases involving evidence tampering that obstructs an official proceeding, and he dismissed the obstruction charge against Fischer.

The U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols’ ruling, concluding that the “meaning of the statute is unambiguous,” so that it “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the prior subsection.

On Friday, the Supreme Court vacated the D.C. Circuit’s decision, interpreting the law more narrowly to apply only to evidence tampering.

Roberts explained that the general principles used to construe statutes instruct courts that “a general phrase can be given a more focused meaning by the terms linked to it.” Here, he continued, subsection (c)(1) provides several specific examples of evidence tampering that the law prohibits – such as altering a record and concealing a document. When subsection (c)(2) immediately follows those examples, he reasoned, “the most sensible inference” is that the scope of (c)(2) is limited by the examples in (c)(1). Indeed, he noted, if subsection (c)(2) sweeps as broadly as the government posits, “there would have been scant reason for Congress to provide any specific examples at all” in subsection (c)(1).

Roberts also pointed to the provision’s history as additional support for the majority’s interpretation. Until the Enron scandal, the statute only made it a crime to use intimidation or physical force, or “corruptly persuade,” someone else to shred documents. The statute did not, Roberts noted, create liability for the person who actually shredded the documents – leading Congress to enact Section 1512(c) to “plug this loophole.” “It would be peculiar to conclude that in closing the Enron gap, Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place.”

The government’s expansive construction of subsection (c)(2) would have other effects as well, he suggested. It “would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.”

When the case returns to the D.C. Circuit, Roberts instructed, that court can reconsider the obstruction charge against Fischer “in light of our interpretation of Section 1512(c)(2).”

Justice Ketanji Brown Jackson joined the Roberts opinion but also filed a concurring opinion in which she emphasized that despite “the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here.”

Jackson suggested that it “beggars belief that Congress would have inserted a breathtakingly broad, first-of-its kind criminal obstruction statute (accompanied by a substantial 20-year maximum penalty) in the midst of a significantly more granular series of obstruction prohibitions without clarifying its intent to do so.”

Jackson also made clear that, at least in her view, the charges against Fischer could still go forward. He was charged, she stressed, with “corruptly obstructing a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote,” which used records and documents. If, Jackson posited, the conduct at the center of the charges against Fischer “involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding,” then the charges against him can go forward.

Justice Amy Coney Barrett dissented, in an opinion joined by Justices Sonia Sotomayor and Elena Kagan. Although “events like January 6th” may not have been the target of subsection (c)(2), she acknowledged (noting in a parenthetical, “Who could blame Congress for that failure of imagination?”), she argued that the court should “stick to the text” when statutes “go further than the problem that inspired them.” Instead, she contended, the court “does textual backflips to find some way — any way — to narrow the reach of subsection (c)(2).”

For Barrett, the text of subsection (c)(2) clearly supports the government’s broader interpretation. Subsection (c)(2), she asserted, “covers all sorts of actions that affect or interfere with official proceedings,” and the word “otherwise” does not limit its scope.

Barrett also rejected the majority’s contention that the government’s interpretation could lead to lengthy criminal sentences against activists and lobbyists. First, she noted, a defendant can only be convicted under subsection (c)(2) if the government can show that he acted “corruptly.” Second, she added, although the law calls for a maximum sentence of 20 years, it does not specify a minimum sentence – suggesting that Congress believed that conduct covered by the law “may run the gamut from major to minor.”

In a statement, Attorney General Merrick Garland indicated that he was “disappointed” by the ruling, but he stressed that “the vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases,” Garland said, “in which the Department charged a January 6 defendant only with the offense at issue in Fischer.”

This article was originally published at Howe on the Court.