Washington — The Supreme Court is weighing the scope of a federal obstruction statute used to prosecute hundreds of people who breached the Capitol on Jan. 6, 2021, in a legal battle that could have ramifications for the election interference case against former President Donald Trump.
At the crux of the court fight before the court Tuesday, known as Fischer v. U.S., is whether federal prosecutors can apply a law passed in the wake of the Enron scandal to the Jan. 6 assault. The measure makes it a crime to “corruptly” obstruct or impede an official proceeding, and defense attorneys argue that the Justice Department has stretched the statute too far.
The first provision of the law prohibits altering, destroying, mutilating or concealing a document. Before the Jan. 6 attack, prosecutors had never used the statute in cases that did not involve evidence tampering. But since the unprecedented assault on the Capitol, it has been levied against more than 330 defendants who breached the building where Congress had convened a joint session to tally states’ electoral votes.
It is also being used to prosecute Trump, who pleaded not guilty to one count of obstructing Congress’ counting of Electoral College votes, one count of conspiring to obstruct the proceeding and two others brought against him by special counsel Jack Smith in Washington, D.C., last year.
Justice Clarence Thomas, who was absent from arguments Monday, was back on the bench. The justices focused much of the first half of arguments on the language of the statute, including the use of the word “otherwise.” Solicitor General Elizabeth Prelogar, arguing on behalf of the government, argued that the obstruction provision functions as a “classic catchall” designed to cover all other acts that obstruct an official proceeding.
Justice Elena Kagan seemed to agree, noting that Congress drafted the measure to fill gaps in the law that were exposed after the Enron scandal.
“This is their backstop provision,” she told Jeffrey Green, who is representing Joseph Fischer, the man charged with obstructing an official proceeding on Jan. 6 and is seeking to have the count dismissed.
The outcome of the case is being closely watched because of the possible impacts to the charges against Trump, which stem from what Smith alleges was a multi-pronged plot to reverse the outcome of the 2020 presidential election. If the court sides with Fischer, Trump could seek to have the two counts related to obstruction of an official proceeding dismissed.
Trump’s case has been paused for months as he seeks to have all four charges tossed out on the grounds he is entitled to presidential immunity. The Supreme Court will consider that issue next week.
Separate from Trump, the obstruction dispute could also have repercussions for the Jan. 6 defendants who have already been convicted of the offense or pleaded guilty. A decision finding prosecutors’ broad reading of the measure was wrong could prompt bids for new trials or lighter sentences.
The Jan. 6 case
Fischer brought the case currently before the Supreme Court after he was charged in a seven-count indictment in early 2021. Then a police officer in Pennsylvania, Fischer attended the “Stop the Steal” rally outside the White House and later entered the Capitol around 3:25 p.m. on Jan. 6. Prosecutors claimed he encouraged rioters to “charge” and ran into a line of officers while yelling an obscenity.
His lawyers, though, said Fischer was pushed by the crowd into a police line. Fischer was in the Capitol for less than four minutes, they told the court.
Among the charges Fischer faced was assaulting a police officer, disorderly conduct and corruptly obstructing, influencing and impeding an official proceeding — Congress’ certification of the Electoral College vote. The charge was enacted as part of the 2002 Sarbanes-Oxley Act, and violators face up to 20 years in prison.
Fischer moved to dismiss the count. U.S. District Judge Carl Nichols granted his request, determining that nothing in the indictment alleged that Fischer “took some action with respect to a document, record, or other object” in order to obstruct the congressional proceedings.
The Justice Department appealed Nichols’ ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against Fischer in a divided decision last year.
In the lead opinion, Judge Florence Pan acknowledged that outside of the Jan. 6 cases, there was no precedent for using the obstruction statute to prosecute conduct like Fischer’s. Still, she concluded that the district court wrongly adopted a narrow interpretation of the law that limited its application to obstructive conduct involving a document or record.
Pan noted that 14 of 15 district judges in D.C. adopted a broader reading of the statute and called their near-unanimity “striking.”
Key to the ruling was the interpretation of the word “otherwise,” which Pan wrote meant that the second of the provision’s two sections applies to “all forms of corrupt obstruction of an official proceeding,” outside of what is covered by the first section.
Lawyers for Fischer asked the Supreme Court to review the D.C. Circuit’s decision, and it agreed to do so in December.
In filings with the high court, defense attorneys urged the justices to narrow the scope of the law, arguing it targets “discrete acts intended to affect the availability of evidence” used in an official proceeding.
Congress, they said, intended to protect the integrity of investigations and evidence when lawmakers wrote the measure after the Enron scandal. Defense attorneys also warned that without limiting the reach of the obstruction law, its scope is “breathtaking” and unconstitutional.
“Anything that affects or hinders a proceeding falls within the government’s definition,” they wrote. “But that definition encompasses lobbying, advocacy, and protest, the very mechanisms that citizens employ to influence government.”
The Justice Department, though, said the text, context and history of the provision shows it broadly bars a person from corruptly engaging in conduct to obstruct court, agency and congressional proceedings.
Accepting Fischer’s argument, Prelogar in a Supreme Court brief, “would undermine Congress’s effort to prohibit unanticipated methods of corruptly obstructing an official proceeding — such as petitioner’s alleged conduct in joining a violent riot to disrupt the joint session of Congress certifying the presidential election results.”
Prelogar refuted warnings from Fischer’s attorneys that if interpreted broadly, the law would be used to prosecute constitutionally protected conduct like lobbying or peaceful protests. Instead, she said the statute is limited to acts that hinder a proceeding, and advocacy like lobbying or presenting oral argument before a court don’t qualify.
“The text of the provision resolves this case, and there is no basis to insert language into the statute that Congress did not write,” she argued, noting that it functions as a “catchall offense” designed to cover all forms of corrupt obstruction of an official proceeding.
The impacts of a decision
The Supreme Court said in December it would take up the case, and its decision to do so reverberated swiftly. Some defendants who were convicted of violating the obstruction statute but not yet sentenced sought to pause their proceedings until the justices rule, likely by the end of June.
If Fischer prevails and the high court finds the law narrowly covers corrupt evidence-related conduct, there could be dozens of defendants who have been convicted and seek resentencing, withdraw guilty pleas or ask for a new trial.
As for the impact on Trump’s case, the special counsel told the Supreme Court in a filing in the immunity case last week that regardless of how it rules, the charges against Trump are still valid.
Smith has accused Trump of deceitfully organizing fake slates of electors in seven battleground states and urging state officials to send the false certificates to Congress. The creation of the phony documents, he said, “satisfies an evidence-impairment interpretation.”
