The decision, marking yet another loss for creative prosecutors, sweeps aside a lot of the convictions that carried serious jail time.
The Supreme Court has ruled in the big January 6 case, Fischer v. United States, and it’s a win for the defense. The Court’s decision not only sweeps aside a lot of the January 6 convictions that carried serious jail time (other than those for violent crimes), it will also require a lot of creativity on the part of Jack Smith to avoid having to dismiss the two counts in his indictment of Donald Trump under the same statute.
The 6–3 lineup for the opinion by Chief Justice Roberts wasn’t quite the usual: Justice Ketanji Brown Jackson defected to join the conservatives in the majority, while Justice Amy Coney Barrett went in the other direction, joining the remaining two liberals in dissent. As I’ve written before, this was a close case, but I thought the government had the better argument for reading 18 U.S.C. Section 1512(c)(2) to cover conduct that obstructs or impedes an official proceeding (such as a trial or, in this case, the joint session of Congress) and not only conduct that tampers with the evidence in a proceeding. Some of the fault here, as is often the case, lies with Congress for an awkwardly written statute passed in the feverish atmosphere of 2002 following the collapse of Enron and the familiar demand to “do something” about corporate cover-ups to thwart investigations.
The government’s cause was also harmed by the self-destructive approach of Solicitor General Elizabeth Prelogar at argument. She could have stood sternly for a strict reading of the statutory text but instead tried to convince the Court that the statute contained other, unwritten limitations that would protect it from being used against familiar left-leaning types of obstructive protests. That lent the entire position of the Justice Department a powerful air of making up the law as it went along, which offended many of the usually textualist conservatives on the Court. However, while that skepticism may be a subtext in today’s decision, it makes no appearance in the text.
While Joseph Fischer was an unsympathetic protester in general — he was also charged with assaulting cops — the government nonetheless had a poor test case, given that he did not actually enter the Capitol until after the joint session had been suspended. Still, if the statute was read the way the government argued, it could claim that he helped extend the time before the joint session could be resumed.
The essential question in Fischer, as I’ve explained exhaustively before, is how to read the word “otherwise” in its statutory 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 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. The defense argued that the broader statutory context modifies the meaning of these words: that if you read the whole statute, 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 for the Court was whether “otherwise” in this context means “in some other, similar way” to Section 1512(c)(1) or “in some quite different way.”
Roberts drew a linguistic analogy:
A zoo might post a sign that reads, “do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.” If a visitor eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure, has he obeyed the regulation? Surely yes. Although the smell of human food or the sound of voices might well disturb gorillas, the specific examples of impermissible conduct all involve direct interaction with and harassment of the zoo animals. Merely eating or talking is so unlike the examples that the zoo provided that it would be implausible to assume those activities were prohibited, even if literally covered by the language.
He’s right that “otherwise” in a list does not typically have a completely open-ended meaning untethered to the rest of the list, but Section 1512(c) was written in two ways that sever the two sections: They use different verbs with different objects, and only (c)(1) has an additional state-of-mind requirement tied to evidentiary objects.
Barrett, in dissent, accused Roberts of “textual backflips” and “snipping words from one subsection and grafting them onto another” because the majority “simply cannot believe that Congress meant what it said. . . . But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.”
I was somewhat surprised and disappointed that the Court embraced Begay v. United States, the chief precedent cited by the defense, which is something of a cautionary tale because the Court later overruled it by declaring that its entire methodology had rendered the statute it construed to be unconstitutionally vague. Justice Samuel Alito, who dissented in Begay, warned the defense at argument not to rely too heavily on it. The Court also described United States v. Reich, involving a forged court order, as a case involving “creating false evidence.” But that’s not accurate: Reich didn’t involve submitting something fake to a court; it involved delaying a proceeding by deceiving the opposing party as to what was happening in the litigation.
More serious, given its approach to criminal statutes in recent years, was the Court’s concern that (c)(2) could be read so broadly that it would swallow up (c)(1):
Guided by the basic logic that Congress would not go to the trouble of spelling out the list in (c)(1) if a neighboring term swallowed it up, the most sensible inference is that the scope of (c)(2) is defined by reference to (c)(1). . . . The sweep of subsection (c)(2) would consume (c)(1), leaving that narrower provision with no work to do. Indeed, subsection (c)(1) would be an elaborate pumpfake: a list of four types of highly particularized conduct, performed with respect to a record, document, or object and “with the intent to impair the object’s integrity or availability for use in an official proceeding,” followed in the very next subsection—in the same sentence, no less—by a superseding prohibition on all means of obstructing, influencing, or impeding any official proceeding…Tethering subsection (c)(2) to the context of (c)(1) recognizes the distinct purpose of each provision.
A similar concern animated the Court’s discussion of the broader statutory context. The rest of Section 1512 involves various sorts of tampering with witnesses, documents, investigations, or other sources of evidence. While I think the government’s brief in the case did a strong job of explaining why its reading of (c)(2) wouldn’t swallow up the rest of the statute, it was a legitimate worry.
The Court was also alarmed by the possible sweep of (c)(2) to cover peaceful protests and other First Amendment–protected activity, especially because it includes the word “influences” in addition to “obstructs” and “impedes”:
As the Solicitor General acknowledged at oral argument, under the Government’s interpretation, a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence. . . . And the Government would likewise have no apparent obstacle to prosecuting under (c)(2) any lobbying activity that “influences” an official proceeding and is undertaken “corruptly.”
That concern does explain some of Prelogar’s decisions — she was simultaneously trying to allay both fears of selective prosecution and an overbroad statute — but she clearly did her cause no favors.
Jackson’s concurring opinion reflects her discomfort with being on a side that her cheerleaders in the press will brand as pro-insurrectionist, if they can even rouse themselves from their despair this morning at last night’s debate. But, like Barrett, she insisted that she was driven out of her usual side by fealty to the text. On the other hand, her examination of the legislative history also explains why nobody else in this majority joined her opinion. She also pointed to the possibility that the Justice Department may be able to salvage 1512(c)(2) charges against some defendants (including Trump) by reframing those charges as evidence-related:
Congress’s certification of the Electoral College vote . . . plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding in ways other than those specified in (c)(1). If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.
That is, however, no consolation to the prosecution in January 6 cases that have already been tried on the broader theory. I don’t think this decision matters that much in the longer term: While it should be a federal crime for rioters, mobs, or mass protests to prevent a legislature or a court from doing its business, it would also be the better practice for Congress to write a statute that targets that specific form of obstruction. But it does mean some people will walk for things that should have been punished.
Fischer marks yet another loss for creative prosecutors. But in my view, this one didn’t require as much creativity as the majority claimed.