Will the Supreme Court line up behind hundreds of convicted January 6th insurrectionists and against DOJ?
Tuesday's oral argument in Fischer v. United States left that question wide open
On Tuesday, April 15, the Supreme Court heard oral argument in Fischer v. United States, an appeal of the criminal conviction of January 6th rioter Jeremy Fischer. Fischer is one of almost 350 criminal defendants who have either been convicted of or plead guilty to obstruction of an official proceeding under 18 U.S.C. § 1512(c) for their actions on January 6th.
This case has the potential to have immense ramifications not just for Fischer, but for the hundreds of other convicted rioters and for Donald Trump himself, half of Special Counsel Jack Smith’s charges in the federal case against him rely on this very same law. Trump’s case is on much more solid legal ground than Fischer’s, but if the Supreme Court sides with Fischer, it would bolster Trump’s false and incendiary claims that the American justice system is corrupt and out to get him.
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I wrote about it for The Bulwark.
Why is the meaning of 18 U.S.C. § 1512(c) so hotly contested?
The relevant part of the statute contains two subsections — one concerns corruptly tampering with a document with intent to obstruct its availability for use in an official proceeding, and the second makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding” of the U.S. government.
Fischer believes the charge against him under this statute for obstruction relating to his storming of the U.S. Capitol and assaulting a police officer should be dismissed because it has nothing to with documents or records, which is what Congress cared about when it made the statute part of the Sarbanes-Oxley Act. He, and other January 6th defendants, have also argued that the two provisions must be read together — that “or otherwise obstruct” is confined by the narrower preceding provision, such that “otherwise” only encompasses other forms of document tampering.
The government, on the other hand, says the two provisions operate independently, such that they refer to altering a record or otherwise obstructing an official proceeding — it doesn’t say “and.” Furthermore, the government argued that after the Enron scandal, Congress intended to broaden liability for obstruction, and that storming the Capitol in an effort to prevent Congress from counting the Electoral College votes (certainly an official proceeding) qualifies under the second part. All of the lower federal district court judges except one, and all the federal courts of appeals agreed with DOJ, but the Supreme Court decided to take the case anyway.
What happened during oral argument?
The fact that the Court took this case shows that some of the justices, especially Justice Samuel Alito, are interested in meddling with the DOJ’s January 6th charging decisions. Alito tossed Fischer’s struggling counsel a bone by giving him some arguments to bolster his case. He said that because either interpretation of the statute is plausible, the question isn’t whether which one is correct, rather whether one is better than the other. He then listed some reasons for siding with Fischer and the other January 6th defendants. Chief Justice John Roberts’s line of questioning seemingly indicated he was with Alito.
Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas were slightly less obvious about which side they are leaning toward, but they expressed concerns that adopting DOJ’s interpretation would cover far too much conduct. Both Thomas and Fischer’s lawyer, Jeffrey Green, pointed out that the government has previously never brought charges under § 1512(c) for anything other than evidence tampering. Solicitor General Elizabeth Prelogar, however, emphasized that the DOJ’s use of the statute to charge January 6th rioters is indeed unprecedented because January 6th was unprecedented. And Justice Elena Kagan agreed, noting that there were “multiple ways” in which the statute’s drafters could have clearly said it applies only to evidence tampering, but they did not.
The other justices, including Amy Coney Barrett, seemed much less persuaded by Fischer’s arguments that DOJ and lower federal courts got it wrong.
What’s the bottom line?
If Fischer wins this case and disrupts hundreds of convictions, Trump will cry “deep state” foul, angering supporters against the justice system even further. So tangentially, it’s another case that the Supreme Court got involved in with implications for the election. It didn’t have to. The indictment against Trump involves false slates of electors, so even if the Court overturns Fischer’s conviction, there’s a strong argument that Trump’s is distinguishable and more easily falls under § 1512(c).
But just consider for a moment what the Supreme Court appears to be contemplating with this case: siding with over 350 January 6th insurrectionists and against the Department of Justice. Thousands of people whom DOJ has been trying to track down and hold accountable for over 3 years now tried to stop the certification of election results for President Biden. If the Court agrees with Fischer and rules that what those people did does not, as a matter of law, qualify as “obstruction of an official proceeding,” then the rule of law and democracy are in even graver danger than we thought.
Follow the facts,
KW
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