Jan. 6 Rioters Should Not Catch a Break From the Supreme Court
By Randall D. Eliason
"Mr. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia.
Imagine that during a Supreme Court argument, protesters angry about the case storm the court building. The mob breaks doors and windows and assaults security officers while forcing its way into the chamber. Some shout that they want to hang the chief justice. The justices and attorneys are forced to flee for their lives. It’s several hours before law enforcement secures the building and the argument can resume.
Has the court proceeding been obstructed or impeded? That doesn’t seem like a difficult question. But that’s essentially what the Supreme Court heard debated in arguments last week in Fischer v. United States, a case challenging a law being used to prosecute hundreds of people, including Donald Trump, for the events of Jan. 6, 2021.
Joseph Fischer is charged with being part of the mob that rioted at the Capitol, forcing members of Congress to flee and disrupting the electoral vote count. Along with assaulting police officers and other charges, he is charged 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.
Prosecutors charge that by participating in the Capitol riot, Mr. Fischer corruptly obstructed and impeded the joint congressional proceeding to certify the election, in violation of 1512(c)(2). More than 300 other Jan. 6 rioters have faced the same charge. In the D.C. federal indictment of Mr. Trump, two of the four counts also rely on this statute, alleging that through his actions leading up to and on Jan. 6, he conspired to and did obstruct the congressional proceeding.
Jan. 6 defendants have repeatedly challenged the use of 1512(c) in their prosecutions. More than a dozen federal judges in Washington have rejected those challenges. But in Mr. Fischer’s case, a Trump-appointed judge, Carl Nichols, concluded the statute must be limited to obstructive acts involving documents, records or other objects. Because Mr. Fischer wasn’t charged with impairing the availability or integrity of any physical evidence, Judge Nichols dismissed the charge.
Prosecutors appealed. The U.S. Court of Appeals for the D.C. Circuit reversed and reinstated the charge, with one judge — also a Trump appointee — dissenting. The Supreme Court is reviewing that decision.
The language of the statute seems clear. Subsection 1 prohibits obstructing a proceeding by tampering with physical evidence, and Subsection 2 is a catchall, backstop provision that prohibits “otherwise” obstructing a proceeding by means not encompassed by Subsection 1. Connected by the word “or,” they define alternative ways to violate the statute. You have to struggle pretty hard to find any ambiguity here.
As the majority in the D.C. Circuit held, that should be the end of the matter. In describing the D.C. Circuit dissent, Judge Florence Pan borrowed a line from an earlier Supreme Court case to say that it seemed like “elaborate efforts to avoid the most natural reading of the text.” After all, textualism — relying on the plain text of a statute and the common understanding of its terms — is the favored method of statutory interpretation today, especially among conservatives.
Despite the plain language of the law, Mr. Fischer and his supporters argue it should be limited based on the reason behind its passage. During the Enron scandal in the early 2000s, the prosecution of the accounting giant Arthur Andersen for shredding an enormous number of documents was hamstrung by weaknesses in the existing obstruction laws. Congress passed the Sarbanes-Oxley Act in 2002, which included section 1512(c), in response to that scandal. Mr. Fischer claims the statute must therefore be limited based on Congress’s intent to respond to crimes involving evidence impairment.
But as Justice Elena Kagan noted during oral arguments, that’s not what the statute says. As she also pointed out, Congress easily could have written the statute that way if that was what it meant.
Limiting the statute as Mr. Fischer proposes would lead to absurd outcomes. Members of a violent mob who shut down a proceeding would not be guilty of obstructing that proceeding. But if in the process they happened to damage an exhibit, the statute would apply. Filing a false affidavit in a proceeding would be covered, even if it had no effect at all; violently halting the entire proceeding would not.
There’s no reason Congress would pass a law that makes such irrational distinctions. Congress might have been motivated by document shredding during the Enron scandal, but it sensibly responded by passing a statute that bars all obstruction, not one that prohibits certain types of obstruction while condoning others.
Nevertheless, Jan. 6 defendants maintain the court must disregard the statute’s clear language based on fears about how it might be applied. They argue that if the law is not limited to evidence impairment, prosecutors might target trivial offenses or otherwise protected activities, like lobbying or peaceful protests.
Several of the conservative justices seemed sympathetic to this argument. Justice Neil Gorsuch, for example, questioned whether a sit-in that disrupts a trial or heckler at the State of the Union address would violate the law. Pointing to such supposed dangers, Fischer’s counsel, Jeffrey Green, urged the court not to unleash this sweeping new prosecutorial power.
Except it’s not new. Section 1512(c) has been on the books for more than 20 years. Another federal statute that prohibits the corrupt obstruction of congressional proceedings has been around since the 1940s. If prosecutors were itching to prosecute peaceful protesters and legitimate lobbyists for felony obstruction, they’ve had the tools for decades. And yet we haven’t seen those cases.
As Solicitor General Elizabeth Prelogar pointed out, that’s because “inherent constraints” built into the statute — chiefly the requirement of corrupt intent — limit its reach. It’s true there are many nonviolent and lawful ways to influence a proceeding. But only those for which prosecutors can prove corrupt intent beyond a reasonable doubt risk running afoul of the law. That’s why, as General Prelogar noted, out of more than 1,300 Capitol rioters prosecuted so far, only about one-fourth — generally the most violent, egregious offenders — have been charged under 1512(c).
Mr. Fischer also argues that Section 1512(c) has never been used in a similar case and that this proves the statute does not apply to the events of Jan. 6. But all this really demonstrates is that unprecedented crimes lead to unprecedented prosecutions. As Justice Sonia Sotomayor observed, because we’ve never had an event like Jan. 6 before, “I’m not sure what a lack of history proves.”
The use of a relevant, clearly applicable obstruction law to prosecute the unique events of Jan. 6 does not mean prosecutors will suddenly abandon the discretion and judgment they’ve used for decades when applying the law to more routine cases, any more than prosecuting Mr. Trump for those events means that criminal prosecutions of former presidents will become routine.
It would be foolish to ignore the plain language of the statute to excuse the Capitol rioters based on feared abuses that live only in the imaginations of those seeking to avoid liability.
Even if the Supreme Court agrees that 1512(c) is limited to obstruction involving evidence impairment, the charges against Mr. Trump will probably survive. Prosecutors can argue that attempting to submit slates of phony electors and efforts to have the real ballots discarded constituted evidence-based obstruction. Justices Amy Coney Barrett and Ketanji Brown Jackson both raised that possibility during the argument, although without referring to Mr. Trump’s case.
But a ruling for Mr. Fischer would call into question the convictions, guilty pleas and prosecutions of scores of other Jan. 6 defendants. And it would provide an unjustified rallying cry for those who protest that the Justice Department has overreached when prosecuting Jan. 6 defendants.
Such a disruptive ruling is possible only if the court goes out of its way to disregard the statutory language and create ambiguity where none exists. If the Supreme Court stays true to its textualist principles, this is an easy case.
Randall D. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebars."
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