Fischer - "Who Could Blame Congress for that Failure of Imagination"

The Fischer case (here) is likely to be a note case in casebooks, as opposed to a main case as many (including myself) predicted. The Court engages in a fairly straightforward statutory interpretation analysis with the word "otherwise" being the key word being interpreted by the majority. Although questions are left unresolved by Chief Justice Robert's majority opinion,  Justice Jackson provides lower courts with important guidance in a brilliant concurring opinion. Justice Barrett authors the dissenting opinion with two of the dissenting regulars (Sotomayor and Kagan) joining. 

Looking first at the majority -

1. In usual monochrome fashion, the Court takes on the question of whether the otherwise clause in subsection 1512(c)(2) should be read as limited by section 1512(c)(1).  
2. The Court makes a point of noting that Fischer has six other counts that are not under consideration here, and that they are only looking at count three of his convictions. This sends a clear message that charges and convictions under other statutes that go to conduct such as "forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol, among other crimes. See id., at 181–185; 18 U. S. C. §§111(a), 231(a)(3),1752(a)(1), (a)(2); 40 U. S. C. §§5104(e)(2)(D), (G)" are not hampered by this decision. 
3. Much of the decision comes down to the meaning of the word "otherwise" in subsection (c)(2), with the majority reading it narrowly. 
4. So first there is a football analogy of "[f]or instance, a football league might adopt a rule that players must not 'grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player.' If a linebacker shouts insults at the quarterback and hurts his feelings, has the linebacker nonetheless followed the rule? Of course he has. The examples of prohibited actions all concern dangerous physical conduct that might inflict bodily harm; trash talk is simply not of that kind."
5. Then there was the zoo 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 would be implausible to assume those activities were prohibited, even if literally covered by the language."
6. Looking at the origins from the Sarbanes-Oxley Act and Enron debacle, the Court finds that "[i]t makes sense to read subsection (c)(2) as limited by (c)(1) in light of the history of the provision."  But it then goes on to note that "[t]he better conclusion is that subsection (c)(2) was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability beyond those Congress specified in (c)(1)."
7. Noteworthy is the statement, "[r]ather than transforming this evidence-focused statute into a one-size-fits-all solution to obstruction of justice, we cabin our reading of subsection (c)(2) in light of the context of subsection (c)(1)."
8. In the end, the word "otherwise" is given a narrow meaning - keep it to what Congress intended post-Enron.  ("To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.")
9. The Court does not decide what happens to defendant Fischer - they send the case back to the lower court to make that decision in light of this decision.  Depending on the evidence at trial, the court may throw out this count.  The court will then need to decide if the inclusion of this count had a spillover onto other counts. 

Concurring Opinion by Justice Jackson - 

1.  She reminds readers what we are really talking about here. ("On January 6, 2021, an angry mob stormed the United States Capitol seeking to prevent Congress from fulfilling its constitutional duty to certify the electoral votes in the 2020 Presidential election. . . .  The peaceful transfer of power is a fundamental democratic norm, and those who attempted to disrupt it in this way inflicted a deep wound on this Nation.")

2. Unlike a somewhat superficial analysis offered in the majority opinion, she goes a step further in considering the football analogy.  Trash talk is not included, but so do we omit the other end of the spectrum ("if a player were to shoot or poison another player, the rule’s drafters would expect the police to be called, not a referee.").

3. She notes that the rule's purpose is important.

4. She guides the lower court's revisit to the case in saying, "Joseph Fischer was charged with violating §1512(c)(2) by  corruptly obstructing 'a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.' App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. 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).'”

Dissenting Opinion by Justice Barrett (joined by Justices Sotomayor and Kagan) - 

1.  Best line of the case - "Because it simply cannot believe that Congress meant what it said. Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?)"

2. "Blocking an official proceeding from moving forward surely qualifies as obstructing or impeding the proceeding by means other than document destruction. Fischer’s alleged conduct thus falls within (c)(2)’s scope."

3. Like the majority it references two key statutory interpretation tools, noscitur a sociis and ejusdem generis. 

4.  The dissent argues that the hypotheticals offered by the majority do not fit here with ejusdem generis - there is no laundry list of terms used here, and "trash talk" is not the same as "inflicting an 'injury.'" 

5. Finally, they remind everyone of the role of the Court and the role of legislature, "[o]nce Congress has set the outer bounds of liability, the Executive Branch has the discretion to select particular cases to prosecute within those boundaries. By atextually narrowing §1512(c)(2), the Court has failed to respect the prerogatives of the political branches."

Bottom Line - This is a narrow decision, Justice Jackson gives good guidance of how to interpret it in other cases, and let's not forgot that we are talking about the importance of the peaceful transfer of power. Of course Congress didn't anticipate this. 

(esp)