SCOTUS To Hear Arguments on January 6 Charge

The Supreme Court will hear oral arguments today in Fischer v. U.S., testing whether a federal law that criminalizes obstruction the corrupt obstruction of an official proceeding applies to January 6 insurrectionists. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does a federal law that makes it a crime to “corruptly . . . obstruct[], influence[], or impede[] any official proceeding” apply to a person who participated in the mob that stormed the Capitol on January 6, 2021?

FACTS

Joseph Fischer attended former President Donald Trump’s “Stop the Steal” rally on January 6, 2021, at the Ellipse. Fischer did not march with the mob to the Capitol, however; instead, he claims that he and his companion headed home. According to Fischer, as he learned about the attack on the Capitol, he and his companion drove back to Washington, D.C., and went to the Capitol.

At the Capitol, Fischer pushed through the crowd and entered the building. He allegedly encouraged rioters to “charge” and “hold the line”; he had a “physical encounter” with at least one law enforcement officer; and he pushed the police. In addition, prior to January 6, Fischer allegedly sent a spate of text messages to acquaintances threatening violence on January 6.

The government charged Fischer with assaulting, resisting, or impeding certain officers; disorderly conduct in the Capitol; and disorderly and disruptive conduct in a restricted building.

The government also charged Fischer with one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2). That provision makes it a crime to “corruptly . . . otherwise obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so.” It comes with a fine, “imprison[ment] not more than 20 years, or both.” (The “official proceeding,” of course, was the meeting of Congress to count the electoral votes in the 2020 presidential election.)

Fischer moved to dismiss this count, arguing that it did not prohibit his alleged conduct on January 6. The district court granted the motion, but the D.C. Circuit reversed. (The lower court cases also included two other defendants charged with violations of Section 1512(c)(2).) This appeal followed.

CASE ANALYSIS

18 U.S.C. § 1512(c) reads in full:

(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.

Given the language and the overall context of Section 1512(c), the parties wrangle over whether Section 1512(c)(2) applies to behavior like Fischer’s. As to the language, they focus on the meaning of “corruptly” and “otherwise.” As to the structure, they focus on how Section 1512(c)(2), which read in isolation does not include acts that affect the availability or integrity of evidence, relates to Section 1512(c)(1), which does.

Fischer argues first that the plain language of Section 1512(c)(2) demonstrates that it “applies only to acts that affect the integrity or availability of evidence,” and not cases like this. He says that “Section 1512(c)(2)’s meaning is properly circumscribed by the enumeration of specific obstructive acts in Section 1512(c)(1),” which refers to evidence, and that the word “otherwise” “implies a relation to something else—here, subsection (c)(1).”

Moreover, Fischer contends that the canons of statutory construction support his reading. He claims that “[t]he whole-text canon dovetails with the linguistic analysis of Section 1512’s text and context,” as above. He asserts that the government’s reading would strip the words “otherwise” and “obstruction” of all meaning, and would “collapse[] 15 of the 21 offenses in Section 1512” and even certain obstruction offenses outside of Section 1512 into subsection (c)(2), all contrary to the canon against surplusage. And he asserts that the canons of noscitur a sociis (“a word is given more precise content by the neighboring words with which it is associated”) and ejusdem generis (“when general words follow specific ones . . . the general terms are usually construed to embrace things like the specified words”) both confirm that “‘otherwise’ indicates that subsection (c)(1) relates to (c)(2).”

Fischer argues next that Court precedent supports his reading. Fischer claims that in Yates v. United States, 574 U.S. 528 (2015), the Court read a different portion of the Sarbanes-Oxley Act, 18 U.S.C. § 1519, against the Act’s focus “on corporate and accounting deception and coverups,” not the kinds of activities in this case. Moreover, he contends that “construing Section 1512(c)(2) as a residual clause tracks how this Court has interpreted analogous statutory language” from other statutes. Fischer asserts that two cases invoked by the D.C. Circuit and the government are based “on a misreading” of other Court precedent, and that the remaining cases cited by the D.C. Circuit “all involve evidence impairment”—holdings that “square[] with Mr. Fischer’s argument.”

Fischer argues that “[t]he statutory and legislative history of Section 1512(c) support a narrow reading focusing on investigations and evidence.” He contends that the “predecessors to Section 1512(c)(2) confirm its narrow scope and function as a residual clause.” And he claims that the addition of Section 1512(c)(2) in the Sarbanes-Oxley Act “did not alter Section 1512(c)’s focus on inquiries or investigations,” not the actions like those in this case.

Fischer argues that other components of Section 1512 “confirm its evidence focus.” He claims that “[t]he government and the courts have narrowly viewed ‘proceedings’ under section 1512(c) as involving investigations and evidence.” He contends, contrary to the D.C. Circuit, that the term “corruptly” does not provide an adequate “guardrail” against government overreach under the Act, because the statute doesn’t define it, and because the term is context-dependent and vague. Fischer contends that the common-law definition of “corruptly”—acting “with an intent to procure an unlawful benefit either for [oneself] or for some other person”—“is the only definition . . . that would properly limited Section 1512(c)(2)’s scope and fit with the obstruction-of-Congress context.”

Finally, Fischer argues that the Court should construe Section 1512(c)(2) narrowly, and resolve any ambiguities in his favor. He says that this approach is consistent with the rule of lenity (which says that courts should construe ambiguities in criminal statutes in the defendant’s favor) and the canon of constitutional avoidance (which says that courts should avoid interpreting statutes in ways that raise constitutional questions, in this case to avoid an interpretation that would encompass activities like “lobbying, advocacy, and protest.”).

The government counters that by its plain meaning Section 1512(c)(2) “functions as a catchall designed to capture all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment.” It says that Fischer is wrong to argue that the term “otherwise” restricts Section 1512(c)(2)’s application to evidence, because that term “is a typical way of introducing a catchall clause that sweeps beyond what came before.” The government contends that Fischer’s reading would narrow Section 1512(c)(2) to reach only the behavior already described in Section 1512(c)(1), “depriving [Section 1512(c)(2)] of any meaningful effect.” The government asserts that Court precedent that Fischer relies upon addressed a different statute with very different language, and that Fischer’s invocation of the canons of statutory construction “is likewise misplaced, as those canons do not apply across the two different paragraphs in (c)(1) and (c)(2), which have distinct verbs and objects.” It asserts that Fischer’s argument that would limit Section 1512(c)(2)’s application to official proceedings “that involve a formalized process for finding the truth . . . overlooks the statutory definition of ‘official proceeding’ . . . and would not in any event justify interpreting the terms ‘obstructs, influences, or impedes’ contrary to their ordinary meaning to reach only acts impairing evidence.”

The government argues that the context and structure of Section 1512(c)(2) confirm its reading. It says that Congress used similar language in other obstruction provisions (in Section 1503 and 1505) to indicate that they similarly operate as “catchalls.” It claims that Section 1512(c)(2), as a catchall, “necessarily overlaps with other provisions—but does not subsume them.” It contends that Fischer’s reading, not its own, “creates extensive superfluity and overlap” (as above).

The government argues that history, too, confirms its reading. It points out that Congress enacted the provisions in the wake of the Enron scandal. It claims that Congress designed Section 1512(c)(1) to fill “a loophole in the obstruction statute, which did not have any prohibition on personally destroying documents.” And it contends that Congress designed Section 1512(c)(2) “to address the larger problem the Enron scandal brought to light—namely, the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.”

The government argues that Section 1512(c)(2) contains sufficient limits to prevent overreach and excessive prosecution. It claims that Section 1512(c)(2) “only covers acts that hinder a proceeding—not acts, like lobbying or peaceful protest,” that do not obstruct and that are protected by the First Amendment. Moreover, it asserts that Section 1512(c)(2) “requires that a defendant’s conduct have a nexus to a specific proceeding, thereby excluding more attenuated conduct.” And it contends that Section 1512(c)(2) only applies when a defendant acted “corruptly.”

Finally, the government argues that under its reading, the rule of lenity and canon of constitutional avoidance have no application. It says that Fischer satisfied all the elements of Section 1512(c)(2), and “the Court should affirm the court of appeals’ judgment reinstating that charge.”

SIGNIFICANCE

The government is waging an extraordinary effort to prosecute those who participated in the January 6 insurrection and the attempt to halt Congress’s count of the electoral vote in the 2020 presidential election. To date, the government has arrested over 1,265 defendants. Of these, it has charged over 300 defendants with a violation of Section 1512(c)(2). A conviction comes with a fine, a sentence up to 20 years, or both. Section 1512(c)(2) is a serious felony charge, and it’s a significant part of the government’s effort to hold January 6 insurrectionists to account.

That said, it’s not the only charge that the government is using; the government also charges insurrectionists with a variety of other crimes. For example, the government charged Fischer with assaulting, resisting, or impeding certain officers (a felony), and disorderly and disruptive conduct (misdemeanors). (The government famously charged—and won a conviction against—leaders of the Proud Boys for seditious conspiracy, among other things, including obstructing an official proceeding under Section 1512(c)(2).) Still, Section 1512(c)(2), as a felony with up to 20 years imprisonment, is an important and significant tool in the government’s effort to prosecute Fischer and certain other January 6 insurrectionists. This case threatens that tool.

As to the historical context, Congress enacted Section 1512(c) as part of the Sarbanes-Oxley Act and in response to the Enron crisis. In an earlier case, Yates v. United States, dealing with a different portion of Sarbanes-Oxley, the Court took account of the Act’s purpose in limiting it. In Yates, the Court held that a provision that makes it a crime to destroy or cover up “any record, document, or tangible object” did not apply to the captain of a commercial fishing vessel who ordered the crew to throw overboard illegally caught fish. In a plurality opinion, Justice Ginsburg wrote, “Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and coverups,” “[a] tangible object captured by § 1519 . . . must be one used to record or preserve information,” and does not include fish.

But Yates was a very different case, with a different line-up on the Court. Today’s textualist majority may take a different view, focusing on Section 1512(c)’s text, and not on its historical context. In other words, it’s not clear that the statute’s Enron-scandal context will sway the Court’s textualists one or way or the other.

One final point. The case has a somewhat unusual posture. As the government argued in its cert.-stage brief, the case comes to the Court on interlocutory review, that is, before final judgment was entered against Fischer (and even before his trial). A defendant usually must wait for a final judgment before challenging a charge. Nevertheless, the Court agreed to hear the case, suggesting that the Court really wants to address the question.