SCOTUS Scrutinizes Obstruction Charges in January 6 Case

The case involves former police officer Joseph Wayne Fischer who has been charged with “corruptly” obstructing an official proceeding, namely the joint session of Congress that was convened and later recessed on January 6, 2021, to certify the 2020 election. The defendant states he briefly entered the U.S Capitol Building after Congress had recessed. The obstruction charge was dismissed by a district court judge but was later reinstated by the D.C. Court of Appeals. The High Court is weighing whether the law being used to charge Fischer with obstruction is appropriate in this case.

The case hinges on how two parts of the obstruction law work together. The law in question is Section 1512(c) of the 2002 Sarbanes-Oxley Act, a “document-shredding prohibition” which grew out of the collapse of the Enron Corporation. Fischer contends the federal government is exceeding the scope of Section 1512(c), in which the first part makes it a crime to fraudulently destroy corporate financial records. Specifically, the law makes it a felony to corruptly alter, destroy, mutilate, or conceal a record, document, or other object with the intent to undermine an official proceeding. The second part of the statute applies to anyone who “otherwise obstructs, influences, or impedes any official proceeding.” The law authorizes up to a 20-year prison sentence for violators. Currently, the Justice Department has charged nearly 330 individuals, including President Donald Trump, under this law for obstruction of Congress.

Essentially, Fischer takes a narrow interpretation of the statute and argues the second part of Section 1512(c) is connected to its preceding part and applies only to obstruction that involves documents and records. However, the government takes a broad interpretation and argues the statute’s second part, denoted with the word “otherwise,” incorporates all other forms of obstruction conduct, such as Fischer’s. The government also stated he acted with premeditation and was “prepared to use violence” at the Capitol which proves an “intent” to undermine the election certification.

“Until the January 6 prosecutions, Section 1512(c)(2), the ‘otherwise’ provision, had never been used to prosecute anything other than evidence tampering,” stated Fischer’s attorney Jeffery Green in his opening statement. “This court has said [the word] ‘otherwise,’ when used in a criminal statute, means to do similar conduct in a different way. The government would have you ignore all that and instead convert [Section 1512(c)(2)] from a catch-all provision into a dragnet.”

Green noted the January 6 prosecutions “demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. “A Sarbanes-Oxley based, Enron-driven evidence tampering statute, is not one of them,” he explained.

Solicitor General Elizabeth Prelogar, who represented the Biden administration, asserted that the word “otherwise” simply means “in a different manner” not limited to just “evidence impairment” but rather is a “catch-all” that covers “all other acts that obstruct an official proceeding in a different manner.”

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The Supreme Court justices asked both attorneys about the application of the obstruction law. Chief Justice Roberts and Justices Elena Kagan, Neil Gorsuch, Clarence Thomas, and Ketanji Brown Jackson each individually and similarly asked throughout the hearing what Section 1512(c)(2) is supposed to accomplish.

While Prelogar argued the “plain language” of the law’s text “covers myriad ways of obstructing,” Green noted that a “narrow reading” of the law is more in line with what Congress intended when they wrote the law in 2002, which was about just prohibiting obstructions “that actually change” a document’s integrity.

Justice Alito noted that it was possible to read the law either broadly or narrowly and asked Green to explain why Fischer’s reading of the law is better than the government’s reading of it.

Green stated that the government’s reading was “so broad” that it would cover and punish anyone who “influences, impedes, or obstructs” a proceeding of any type.

Both Chief Justice Roberts and Justice Thomas asked Prelogar whether the law had been used before January 6 in cases that did not involve spoiling physical documents.

Prelogar stated, “I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding…but that's just because I'm not aware of that circumstance ever happening prior to January 6.”

Both Justices Amy Comey Barrett and Jackson asked how the law could apply to hypothetical situations involving official documents certifying an election. They asked if intentional interference that impaired delivery of state election certificates headed to the Vice President’s desk could justify charges under Section 1512(c)(2).

Green stated that type of interference would not affect the “integrity of the document” or its “availability.”

Justice Barrett asked Prelogar if the government is placing a violence requirement on these January 6 charges.

While Prelogar stated that violence wasn’t required under the statute, she did say the government needs to show “conscious wrongdoing,” and the presence of violence during an obstruction would make the obstruction easier to prove. However, Prelogar noted that proving intentional wrongdoing is difficult because people may think their conduct is protected by the First Amendment and acceptable.

Prelogar stated, “…the idea that people are engaging in contact that maybe they think is constitutionally protected – they might be wrong about that – there might not be a First Amendment right that they think they have, but that can demonstrate they don’t have the requisite consciousness of wrongdoing that would mean we couldn’t prove an obstruction charge.”

Justice Gorsuch questioned Prelogar about whether peaceful protests could lead to 20 years in prison since her “catch-all” interpretation would subject all who obstruct a proceeding to potential prosecution.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify or at the State of the Union address?” Justice Gorsuch asked. “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

Prelogar noted that the 20-year maximum sentence was “not driving” the government’s case and that there is no mandatory minimum sentence under this law, so normal sentencing guidelines would apply. In addressing Gorsuch’s question, Prelogar stated “many of those things wouldn't be something the government could charge or prove.”

Green stated in his rebuttal that Congress wrote Section 1512 in a way that does not require a pending proceeding for there to be an obstruction. He argued the government’s interpretation could then naturally extend to peaceful protests. He stated that if the January 6 defendants entered the Capitol on January 5, they could still be charged with obstruction under the government’s broad scope.

“The government wants to unleash a 20-year maximum penalty on potential peaceful protests,” stated Green. “It’s going to chill protected activities. People are going to worry about the kinds of protests they engage in even if they are peaceful because the government has this weapon.”

Liberty Counsel filed an amicus brief to the High Court which argues Section 1512(c) is being used in an unprecedented manner to “criminalize large swaths of constitutionally protected expression” and runs “roughshod over the First Amendment.”

Liberty Counsel Founder and Chairman Mat Staver said, “The Sarbanes-Oxley Act has nothing to do with the events of January 6. It arose out of the Enron scandal to prevent document shredding for the purpose of concealing corporate fraud. The First Amendment does not permit the government to make political expression, assembly, or petitioning the government into criminal acts.”

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