Written by: Katie Ann Daley
The events that unfolded in Washington D.C. on January 6, 2021, shocked the nation. During the joint session of Congress, convened to certify the 2020 presidential election results, thousands of protestors stormed the Capital Building, convinced the results of the election were fraudulent. Among the protestors was Joseph Fischer, a police officer from Pennsylvania. Fischer was arrested by the FBI and indicted on seven counts relating to allegations Fischer assaulted a federal officer, entered and remained in a restricted building and engaged in disorderly conduct in the Capital during the January 6 riot.
What is Fischer accused of doing?
One of the seven claims against Fischer was based in his alleged violation of the Sarbanes-Oxley Act of 2002. Fischer is accused of violating 18 U.S.C. § 1512(c), which relates to the destruction of documents that would otherwise be used in an official proceeding. Section 1512(c) came into being after the Enron scandal brought to light a rather stunning loophole in the statute: Section 1512(c)—now subsection (c)(1)—made it a federal crime to convince others to destroy documents, but the individuals who actually destroyed such documents were not subject to criminal liability. Thus, Congress closed this gap by enacting subsection (c)(2), which provides that “[an individual] who 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…” (emphasis added).
The controversy in Fischer’s case revolves around the word “otherwise” as it is used in subsection (c)(2). Federal prosecutors argued that the word “otherwise” encompasses conduct beyond those acts listed in (c)(1). Fischer argued that, far from encompassing all conduct that impedes an official proceeding, (c)(2) should be read to only encompass conduct related to a record, document, or other object not enumerated in (c)(1 The District Court agreed with Fischer, writing the language of (c)(1) narrowed the scope of (c)(2) and the word “otherwise” only applied to acts that “affect the integrity or availability of evidence.” On appeal, the U.S. Court of Appeals for the D.C. Circuit disagreed, holding that the natural reading of the statute would indicate (c)(2) applied to all forms of obstructing an official proceeding.
What is the meaning of “otherwise?”
In a 6-3 decision, the Supreme Court ultimately decided in favor of Fischer. Writing for the Court, Chief Justice Roberts explained how general principles of statutory construction and the statute’s legislative history support Fischer’s argument. In interpreting the statute, Roberts wrote that a general term can be narrowed by the terms around it. Because §1512(c)(1) listed specific acts relating to evidence tampering, the “most sensible inference” would be that the word “otherwise” in (c)(2) would be limited to similar actions. Roberts also considered the provision’s legislative history. Because Congress had enacted §1512(c) to correct §1512’s glaring loophole, it made sense that (c)(2) would not encompass actions well beyond the examples contemplated in (c)(1). In other words, “otherwise” was not a catch-all for all obstructive acts, rather was limited to actions relating to records, documents or other evidence used in an official proceeding.
In her concurrence, Justice Jackson recognized the events of January 6, 2021 as an attempt to prevent the peaceful transfer of power, breaking a fundamental democratic norm and traumatized the nation. She wrote it was imperative the emotions invoked by January 6th’s events were kept separate from the Court’s duty to “say what the law is.” “Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis, and even when the conduct alleged is indisputably abhorrent.” She went on to write that it was unlikely that Congress intended to insert such a broad provision immediately after a provision prohibiting much more specific action.
Justice Barrett, joined by Justices Sotomayor and Kagan dissented. Barrett conceded that §1512(c) was not enacted with events like those of January 6, 2021 in mind, writing in a parenthetical “Who could blame Congress for that failure of imagination?” Barrett stressed the fact that statutes often go further than the exact problem or concern that led to their enactment, and the Court should stick to the text of the statute. Reviewing the plain meaning of key words in the statute, Barrett would have held that Fischer’s alleged conduct falls within (c)(2) because that subsection prohibited means other than those enumerated in (c)(1). Barrett admonished the majority for doing “textual backflips to find some way- any way – to narrow the reach of subsection (c)(2).”
What does this mean going forward?
The Court vacated the D.C. Circuit court’s judgment and remanded Fischer’s case for further proceedings. The Justice Department maintains they limited their prosecutions under §1512(c) to those defendants for whom there was evidence they specifically intended to disrupt the counting of electoral vote ballots. Fischer’s ultimate fate will depend on how the D.C. Circuit assesses Fischer’s indictment for obstruction in light of the Supreme Court’s opinion.
Among the approximately 1,400 defendants associated with the January 6th riots, only about 350 were charged with obstruction. One study found just under half of these individuals were convicted of another crime in addition to obstruction. A separate group of individuals pled guilty to obstruction; however they will still face charges even if their conviction is vacated. All plea agreements related to the events of January 6th included a provision that provided, if the conviction was vacated for any reason, the government reserved the right to prosecute any other alleged crimes prosecutors had dropped as part of the plea agreement or dismissed at sentencing.
This decision is unlikely to have any significant impact on the election interference case against former President Trump, notwithstanding the Court’s recent decision regarding presidential immunity. While Trump is also charged with obstruction, his case involves the alleged use of false electoral certificates which would likely fall within the actions outlined in §1512’s evidence-tampering provisions.
Sources:
Fischer v. United States, 603 U.S. ___ (2024).
18 U.S.C. § 1512(c).
Amy Howe, Justices Rule for Jan. 6 defendant, scotusblog (June 28, 2024).
Nina Totenberg, Supreme Court says prosecutors improperly charged some Jan. 6 defendants, npr (June 28, 2024).