And a more modest win for Trump.
And a more modest win for Trump
A significant aftershock in the Supreme Court’s Chevron Earthquake Day is the ruling that a disputed obstruction statute does not cover the violent rioting at the Capitol for which the Justice Department prosecuted hundreds of January 6 defendants.
Putting aside for a moment the consequences for the defendants directly implicated in the uprising, the high court’s decision in Fischer v. United States could have major implications for the Washington, D.C., prosecution of Donald Trump by Biden Justice Department special counsel Jack Smith. Two of the four counts against the former president — the two that account for most of the sentencing exposure in the case — are brought under the statute at issue, Section 1512(c)(2) of the federal penal code.
It is impossible to gauge fully the ramifications for the de facto Republican presidential nominee’s prosecution until the justices decide his claim that he has immunity from criminal prosecution. The Court is expected to render its immunity early next week. Chief Justice Roberts, who authored the majority opinions in both Fischer and Chevron, has announced that Monday will be the final day of the term.
But let’s start with what the case means for the hundreds of January 6 defendants.
Many of them will be deemed to have waived their right to challenge §1512(c)(2) at this point — if, for example, they pled guilty to the charge, or if they failed to raise an objection to the statute’s invocation in their proceedings. Nevertheless, expect a torrent of legal claims, especially sentencing claims.
Indeed, the reason the Biden Justice Department has relied on a dicey construction of the obstruction statute is its 20-year maximum penalty provision. The hefty potential sentence makes it a very serious offense; ergo, conviction on §1512(c)(2) drives a defendant’s sentencing guidelines higher. Scores of defendants will thus demand resentencing, contending that they would have been eligible for shorter sentences, even non-prison sentences, had it not been for the Justice Department’s charging zeal.
On that score, I am constrained to observe, yet again, that the Capitol riot, appalling as it was, was not in the same league as a terrorist mass-murder attack. That is obvious to most Americans, but it is not something partisan Democrats, including the ones who run the Justice Department, want to hear.
In a terrorism case, the government need not contort criminal statutes because the penalties for causing death and massive damage are severe. Since J6 defendants did not engage in such heinous offenses, Biden DOJ prosecutors have resorted to §1512 because the 20-year maximum enabled them to nudge sentences closer to the range of very serious crime — even though many of the demonstrators did not engage in any violent misconduct. The over-charging by prosecutors’ use of §1512(c)(2) has been of a piece with other partisan messaging: (a) overwrought Democratic claims that J6 rioters murdered several police officers (there is no evidence that they murdered any police officers), (b) the government’s cooking of its books to suggest a surge of white-supremacist domestic terrorism, and (c) the hysterical Democratic narrative that a three-hour riot — which caused such minimal damage that Congress was able to reconvene that evening and ratify Biden’s Electoral College victory — had our democracy hanging by a thread.
This morning’s Fischer decision presents a somewhat unusual line-up of justices. As already noted, Chief Justice Roberts wrote the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, who are conservatives and textualists, and by Justice Ketanji Brown Jackson, a progressive who wrote a concurring opinion. Justice Amy Coney Barrett, a conservative textualist, penned a dissenting opinion that was joined by Justices Sonia Sotomayor and Elena Kagan.
As Justice Thomas noted at the start of oral argument back in April, the case came down to the word “otherwise” — specifically: In §1512, is obstruction under subsection (c)(2) cabined by the narrow forms of obstructive conduct which proceed that word in subsection (c)(1); or is (c)(2) an open-ended invitation to prosecutors to criminalize any form of “corrupt” conduct they can imagine that could potentially influence a proceeding?
Following the construction adopted by Judge Gregory Katsas, the superb appellate judge who dissented when the D.C. circuit ruled on Fischer, Chief Justice Roberts determined that to “otherwise obstruct, influence, or impede” an official proceeding — the (c)(2) obstruction offense — meant to engage in behavior in the same pew as the obstructive conduct listed in (c)(1), which punishes one who
alters, destroys, mutilates, or conceals a record, document, or other object . . . with the intent to impair the object’s integrity or availability for use in an official proceeding.
The majority’s conclusion was supported by four factors. First, venerable canons of statutory construction counsel reading a broad term, such as “otherwise obstructs,” as limited by related conduct with which Congress groups it in the text — in this instance, conduct that involves the impairment of evidence, particularly documentary evidence. Second, this narrow interpretation hewed to the obvious purpose of the statute, which was enacted in the 2002 Sarbanes-Oxley law to address a lacuna in federal prohibitions on shredding documents (which had become apparent in the prosecution of the Arthur Andersen accounting firm in the Enron scandal). Third, Roberts’s construction prevents §1512(c)(2) from swallowing several other obstruction provisions in federal law, including those in (c)(1). Finally, and importantly, the Court’s ruling respects the separation-of-powers principles that Congress writes the criminal laws — neither courts nor prosecutors are at liberty to stretch them, by overbroad constructions or creative charging, to criminalize conduct Congress was not trying to proscribe.
Justice Barrett’s dissent boils down to a difference of opinion with her majority colleagues regarding how “otherwise” ought to be read. She was inclined to agree with the D.C. circuit’s majority (fractured as it was), and with most judges in the D.C. district court, who opined that (c)(2) should be read expansively — covering conduct that may undermine a proceeding without necessarily tampering with evidence or witnesses.
The most notable opinion in the case may be that of Justice Jackson. She’s often seen as the most progressive member of the Court, and many commentators (myself included) believed she would come down in favor of a construction of (c)(2) as sweeping as necessary to reach the Capitol rioters. Yet she agreed with the majority’s statutory analysis without hesitation. I suspect that she wrote separately to stress how this more narrow interpretation of the law was faithful to the legislative history of (c)(2)’s enactment in Sarbanes-Oxley. Jackson is right about this, but her point would not have purchase with the five other justices in the majority — textualists who regard legislative history with suspicion because it is often used by progressives to enforce what they intuit Congress meant, rather than what Congress actually said, in a disputed statute.
This concurrence by the Court’s Biden appointee, along with the dissent by Justice Barrett, a Trump-appointee, should make it impossible for Democrats to caricature Fischer as a matter of the Republican-dominated Supreme Court abusing its power to protect Trump and the other “insurrectionists.” Not least because Fischer does not protect Trump as much as he might like to believe.
It is true that the Court’s decision blows a big hole in special counsel Jack Smith’s theory of the election-interference prosecution. Despite the Democrats’ incessant “insurrection” rhetoric, the Biden DOJ has not indicted Trump or anyone else for insurrection because it lacks evidence. The obstruction statute was Smith’s way of trying to convict Trump of “insurrection” without charging that offense: The prosecutor’s theory is that Trump induced a mob to descend on the Capitol and prevent the ratification of Biden’s victory by obstructing the proceeding to the point that it could not take place — i.e., functionally, by insurrection. As a result of the Court’s ruling, such conduct does not even establish obstruction, much less insurrection. Consequently, Smith’s effort to use the Capitol riot against Trump as evidence, even though he has not charged a Capitol riot crime, has taken a major hit.
Yet that doesn’t mean the Trump prosecution disappears. Smith also theorizes that Trump obstructed the joint session of Congress by participating in the so-called fake-electors plot. In that scheme, Republican Trump supporters in various contested states were formed up as alternative slates of electors. They claim that this was simply a contingency — that if the Trump campaign won its lawful court challenges to the popular election in those states, they’d be prepared to cast the states’ electoral votes for Trump, supplanting Biden electors who were certified under state law.
If that’s all there was to it, there would be no crime — and, I’d note, Smith has not charged any of the “fake electors.” Nevertheless, these Trump electors did not merely form up as a contingent slate. They also manufactured documents that Smith alleges were a fraudulent artifice to make the fake electors appear as if they were legitimately certified. This artifice was then to be used, Smith contends, as a pretext for Trump supporters in Congress to claim, falsely, that there was doubt about whether the Biden electors were properly certified.
The manufacturing of documents on false pretenses remains a form of evidence impairment criminalized under (c)(2), even after today’s ruling. In the majority opinion (on pp. 8–9), Chief Justice Roberts asserts: “It is possible to violate (c)(2) by creating false evidence — rather than altering incriminating evidence.” Moreover, to the extent Smith contends that Trump endeavored to influence Congress’s joint session by laying the groundwork for false witness testimony or the provision of other misleading information, Roberts elaborates that such conduct, too, still falls within the (c)(2) ambit of prosecutable obstructive conduct.
This is especially significant because, at oral argument of the immunity case (United States v. Trump, transcript pp. 29–30), Justice Barrett elicited from Trump’s lawyer, John Sauer, a concession that the “plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding [on January 6, 2021],” which Trump is alleged to have “directed,” is “private conduct.” It is not an official act; hence, there could be no presidential immunity.
To summarize, then, Trump’s defense agrees that the fake-electors scheme is not covered by immunity — no matter how broadly or narrowly the Court may define such immunity. And today’s ruling in Fischer indicates that a fake-electors scheme that entails the creation of false documentary evidence may still be prosecuted as obstruction under §1512(c)(2).
Like many defendants affected by the Justice Department’s charging practices arising out of the Capitol riot, Donald Trump had a good day at the Supreme Court today. But he is not out of the woods — not by a long shot.