January 6 Defendants Shouldn’t Get Hopes Up for Fischer Decision — but Trump Might
The text of the statute used in January 6 cases supports the government’s arguments.
The text of the statute used in January 6 cases supports the government’s arguments.
O ne of the big cases the Supreme Court will decide over the final two weeks of its term is Fischer v. United States. Fischer is a crucial test of a federal statute that has been deployed by the Department of Justice against January 6 defendants, including Donald Trump. The case has produced a fair amount of buzz, albeit less than what surrounds the Trump presidential-immunity case. I’ve previously criticized the disastrously bad strategy pursued by Solicitor General Elizabeth Prelogar at the oral argument in Fischer.
But as we await the ruling, I’m here to pour some cold water on the optimism of the DOJ’s critics. While the case is a close one, the defense has the weaker argument in Fischer: It may lose, and it should lose. If Fischer wins, however, much of the blame should fall upon Prelogar for doing everything in her power to make the conservative justices mistrust the fairness of Merrick Garland’s Justice Department.
The Arguments
The DOJ has charged many of the January 6 defendants under 18 U.S.C. Section 1512(c)(2) on the theory that they obstructed and/or impeded a proceeding before Congress by preventing the joint session of Congress from meeting to count and certify the electoral votes submitted by the states as envisioned by the Twelfth Amendment. The question before the Court in Fischer is whether Section 1512(c)(2) covers obstructing or impeding a legal proceeding by preventing it from meeting or only by means of interfering with the evidence.
There are basically six sets of arguments in the case. The first is about the language and grammatical structure of the text of Section 1512(c)(2) and how that relates to the context of what surrounds it. The second is about surplusage: Courts don’t like to read laws in ways that make some parts of the law meaningless or redundant, at least if there is any way to avoid it. The third is about when and why the statute was written (what problem Congress was targeting) and whether the DOJ’s current position is a break with how it has been applied in the past. The fourth is about whether there’s a danger that 1512(c)(2) could be applied too broadly in the future.
The fifth set of arguments, which is a dog that hasn’t really barked, is about how you apply an obstruction statute that was written mostly for court cases to the context of Congress. The sixth, which is entirely unspoken but looming in the background, is how the decision in this case could affect Jack Smith’s case against Trump.
I’ll focus here mainly on the textual arguments, and then touch quickly on the others, because the text is where the defense’s biggest problems lie.
Text and Context
Here’s Section 1512(c), with italics added:
(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.
The starting place is always the words written by Congress, and that puts the defense in a hole from the outset. Almost everyone agrees that the “obstructs, influences, or impedes any official proceeding” language of (c)(2), if you read it by itself, is broad enough to cover a mob that obstructs and impedes a proceeding by causing it to be delayed or rescheduled. In common language, even if you read “obstructs” as a legal term of art in the chapter of the criminal law that deals with obstruction of justice, “impedes” obviously includes preventing a proceeding from being held, even temporarily.
It’s true that Congress could have been even more explicit: Other parts of Section 1512 and other statutes in the same chapter use verbs such as “hinder” and “delay,” for example in Section 1512(a)(2)(A) (“influence, delay, or prevent the testimony of any person in an official proceeding”) and in Section 1512(a)(2)(C) (“hinder, delay, or prevent” communications to law enforcement about the commission of a crime), or they use as the object of those verbs “the due administration of justice” (as in Section 1503) or “the due and proper administration of the law” (as in Section 1505). But courts traditionally give Congress some leeway in using different synonyms in statutes written at different times to mean similar things. In this case, Congress has been legislating in this area for decades.
The lawyers for Fischer and other January 6 defendants argue that the broader statutory context modifies the meaning of these words: that if you read the whole statute (including placing it within the broader context of the rest of Section 1512 and the surrounding statutes), it’s designed to cover a list of different ways to mess with the evidence in a proceeding, rather than taking a sharp turn between (c)(1) discussing documents and records to (c)(2) saying “or anything else that gets in the way of a court or Congress doing its business.”
The central question the Court has to decide is whether “otherwise” in this context means “in some other, similar way” to Section 1512(c)(1) or “in some totally other way.” There are common Latin maxims used in the precedents. The rule of ejusdem generis, which Antonin Scalia and Bryan Garner in Reading Law identify as an English rule dating at least to 1596, holds that general words in a list should be limited by the more specific ones. A related canon, noscitur a sociis, says that words should be understood by the company they keep.
For example, Chief Justice John Roberts, at the argument, asked Prelogar about Bissonnette v. LePage Bakeries Park St., an ejusdem generis opinion that Roberts wrote two weeks earlier, in which a statute from the 1920s reading “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” was read (partly for historic reasons) to limit the “class of workers” to those engaged (like seamen and railroad workers) in transportation. But the use of “otherwise” is often a signifier that the lawmaker wants to write a catch-all clause that will be broader than what precedes it. In Gooch v. United States (1936), Congress amended a kidnapping statute to change “held for ransom or reward” to “held for ransom or reward or otherwise,” and the Court rejected the argument that “otherwise” was similarly limited to holding hostages for financial benefit; it also covered kidnapping cops in order to evade arrest:
Holding an officer to prevent the captor’s arrest is something done with the expectation of benefit to the transgressor. So also is kidnaping with purpose to secure money. These benefits, while not the same, are similar in their general nature and the desire to secure either of them may lead to kidnaping. If the word reward, as commonly understood, is not itself broad enough to include benefits expected to follow the prevention of an arrest, they fall within the broad term, “otherwise.”
Section 1512 bans only those acts done “corruptly,” which limits the reach of both subsections to things done to obtain some advantage in a court case or other official proceeding. Set aside for now (we’ll return to this below) the fact that this case involves Congress and consider a criminal or civil court case. Shredding documents, intimidating witnesses, or tipping off targets of a grand-jury investigation can all tilt the evidence to give an advantage. But so can delaying the court from sitting. Maybe a witness will rethink things if it takes longer before he or she testifies. Maybe an ill or elderly judge or witness will die. Maybe a trial is running low on jurors and protracting things will drop more off and force a mistrial. The legal system is full of legitimate ways to cause delays, and litigants use them often for their own ends. Many of them can also indirectly affect the availability of evidence.
Consider an example from my own legal practice. The first time I took a deposition as a green young lawyer, we got some additional documents, and opposing counsel wanted to take more time to review them over lunch — or, maybe, she just wanted to run the clock out on me, because it would be hard to schedule an additional day with the witness. So, she went behind my back and told the videographer to take a long lunch. That delayed the proceeding, to my disadvantage.
Fischer’s brief relied heavily on Begay v. United States (2008). His lawyer, Jeff Green, said at the oral argument, “I think Begay is our best case for sure.” But that’s bad news for the defense. Begay is less a respected precedent than a cautionary tale, and Roberts is the only member of the Begay majority who is still on the Court. It involved the residual clause of the Armed Career Criminal Act, which defined a prior “violent felony” to include those that entailed “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Justice Stephen Breyer’s opinion in Begay ruled that the residual clause covered only “similar” crimes, such that a DUI offense that involved serious risk of injury wasn’t covered.
Justice Scalia’s concurrence in Begay argued that “the residual clause unambiguously encompasses all crimes that present a serious risk of injury to another. . . . There is simply no basis . . . for holding that the enumerated and unenumerated crimes must be similar in respects other than the degree of risk that they pose,” and warned that the Court was engaged in “a piecemeal, suspenseful, Scrabble-like approach” that would prove unmanageable. So did Justice Samuel Alito’s dissent (joined by Justice Clarence Thomas), which emphasized that “otherwise” means “in a different manner” and that “requiring that an offense must also be ‘purposeful,’ ‘violent,’ or ‘aggressive’ amounts to adding new elements to the statute.” Seven years later, Scalia won the argument, and the residual clause was declared unconstitutionally vague.
Justice Elena Kagan told Green that Begay was “not a very good advertisement, I would think . . . it was a complete failure.” Alito, recalling his dissent then, added, “I’m not a fan of Begay. Some of us perceived at that time that there were problems, different problems, with what the Court did there.”
Thomas opened the argument by asking Fischer’s lawyer of Sections 1512(c)(1) and (c)(2), “How do we determine what these two provisions have in common? Do we look after the ‘otherwise’ or before and why?” That’s a penetrating question, and it is also not a good one for the defense. The reason is elementary grammar. I will spare you a diagram of the sentences, but the verbs in (c)(1) (“alters, destroys, mutilates, or conceals”) have one set of objects (“a record, document, or other object”); the verbs in (c)(2) (“obstructs, influences, or impedes”) have a different object (“any official proceeding”). That suggests that Congress saw (c)(1) as addressing evidence-tampering and (c)(2) as covering obstructing or impeding an official proceeding by means other than evidence-tampering.
Perhaps the strongest signal in the text that Congress divided its work this way is that a violation of (c)(1) requires proof that the defendant acted “with the intent to impair the object’s integrity or availability for use in an official proceeding,” whereas (c)(2) does not require similar proof. The best explanation for why is that Congress understood that (c)(2) prosecutions extended to situations where there was no such object at issue, and maybe not even testimony.
History, Purpose, and Use
The arguments about surplusage — not reading (c)(2) so broadly that every (c)(1) case could be brought as a (c)(2) case — are serious ones and are maybe the likeliest to give the Court real pause. The justices will want to ensure that each sub-part serves a distinct function. But that can cut both ways, because if (c)(2) covers only tampering with documents and witnesses, those are topics adequately handled in (c)(1) and in other parts of Section 1512 and the surrounding statutes. And without delving into a lengthy tangent here, the government’s brief, in my view, adequately explained how the various differing coverage and penalties for different parts of the rest of Section 1512 ensured that there would not be a fatal surplusage problem.
The other context argument is the opposite of the surplusage problem: Everything else in Section 1512 deals with evidence except for Section 1512(c)(2). But recall the context: This sub-part was added in 2002 in response to the Enron scandal, which involved the company’s auditors at Arthur Anderson destroying records. Congress was horrified to discover that federal law at the time banned inducing other people to shred documents but did not actually criminalize the shredding itself. The Sarbanes-Oxley Act that added Section 1512(c)(2) and extended the statute’s coverage to proceedings before Congress was clearly written with the aim of ensuring that, this time, nothing would get overlooked. Hence, “otherwise.”
The fact that Section 1512 was amended in stages over the years is why its title (addressing only witness-tampering) and one of its provisions (Section 1512(f)(2), which talks about “the testimony, or the record, document, or other object”) don’t really fit the coverage of Section 1512(c). Those might be a bigger deal if the defense’s textual arguments were stronger.
A lot of the rhetorical force of the defense argument is that the breadth of Section 1512(c)(2) as read by the DOJ makes it a dangerous tool in the hands of political prosecutors, that they are currently engaged in Trumplaw by creatively rewriting it for the first time to cover something other than evidence-tampering, and that the statute will clash with the First Amendment if it sweeps in too much political protest. But this isn’t actually the first time the DOJ has charged obstructing and impeding a proceeding by means other than evidence-tampering. In United States v. Reich (2d Circuit, 2007), an opinion written by then-judge Sonia Sotomayor, the Second Circuit found that the statute covered a litigant who forged a court order, making it appear that an order his adversary was appealing via a mandamus petition had been withdrawn. That caused his adversary to withdraw the mandamus petition — thus preventing that appeal from going forward and wasting the time of the courts.
Reich had nothing to do with impairing the truth-seeking function of the courts and everything to do with stalling for time to prevent an official proceeding from happening. Maybe Sotomayor was wrong then (hold the smelling salts), but nobody at the time really treated this as a novel and surprising reading of the statute.
The threat that the Court will read Section 1512(c)(2) narrowly out of mistrust of the Garland Justice Department is a more serious one. As I explained in my review of Prelogar’s argument, she seemed determined to go out of her way, unnecessarily, to craft a bespoke legal standard that would cover January 6 but not common incidents of left-wing protest, including those that impose delays on the Supreme Court’s own ability to hear arguments. This was a wildly ill-considered way to approach this case. Few of the justices appeared sympathetic to Fischer’s textual arguments — but several of them were audibly offended and provoked by Prelogar’s gymnastics.
Congress and the Courts
I’ve thus far discussed Section 1512(c)(2) in terms of court cases. Does it matter that it also explicitly covers proceedings before Congress? In a different case, it might matter to the scope of the statute. A fact-finding hearing is plainly a proceeding before Congress that shares some of the truth-seeking functions of a court case, notwithstanding the overlay of politics that attends everything Congress does. Arguably, not every proceeding of Congress would necessarily be covered — I have my doubts about whether a vote on legislation would. But the joint session to count, witness, and adjudicate the electoral votes is that kind of proceeding: Congress and the vice president gather to settle the question of who got how many legitimate electoral votes.
Moreover, many of the January 6 protesters and rioters plainly acted with the same sort of motive and intent that we associate with obstruction of a court case: They aimed to stall the joint session long enough to pressure state legislatures and governors into revoking some of the certifications and possibly substituting different slates of electors — in other words, using delay to change what evidence was before the fact finder. Justice Amy Coney Barrett zeroed in on this at argument, observing that the government could prove that Fischer was “trying to obstruct the arrival of the certificates arriving to the vice president’s desk for counting . . . would that be different than someone, say, in a trial or a criminal proceeding trying to prevent evidence that was going to be introduced in the proceeding from making it there?”
Trumplaw and Trump
We should not be surprised if Fischer ends up as a win for the Justice Department. But that doesn’t mean it would be a win for Jack Smith. Two of the four counts against Trump involve an alleged violation or attempted violation of Section 1512(c)(2) and an alleged conspiracy to violate Section 1512(c)(2). But Smith hasn’t charged Trump with participating in the riot, because he didn’t. The indictment tries to connect Trump to the riot by adding a conspiracy charge, but it never actually alleges that any rioter was a co-conspirator with Trump, and the DOJ in other cases has taken pains to deny that any of them could argue that they were acting on orders of the president. Yet, Trump also isn’t charged with tampering with the actual documentation submitted to Congress. The theory of Smith’s charges is quite different from what is charged in Fischer (Smith seems to think, for example, that alternative-elector slates can be classified as frauds), but if the Court rules in a way that offers some clarity to Section 1512(c)(2) prosecutions, that might not be such great news for a case that relies on a lot of vagueness about how the statute actually works.