Supreme Court Narrows Obstruction Law Used in Jan 6 Cases

Sharing my article in The Atlantic

Today the Supreme Court decided Fischer v. United States, the case involving an obstruction of justice statute used to prosecute hundreds of January 6 rioters, as well as former president Trump. The vote was 6-3. The majority opinion by Chief Justice Roberts held that the broad obstruction prohibition in 18 U.S.C. 1512(c) must be limited to acts that affect the availability or integrity of evidence in a proceeding. A riot that completely shuts down a proceeding, the majority held, does not fall within the statute.

As a reminder, here’s the statutory language:

Whoever corruptly —

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) 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, or both

This language is very clear. Subsection 1 prohibits obstruction based on evidence impairment, and subsection 2 is a catch-all meant to prohibit any acts not encompassed by subsection 1 that “otherwise” obstruct an official proceeding. But the Court’s decision has the effect of reading “otherwise” in subsection 2 to mean “similarly.” An act cannot “otherwise” obstruct or impair a proceeding unless that act also involves some kind of evidence impairment.

As regular readers know, I’ve been arguing for a long time that applying this statute to the Capitol riot is perfectly appropriate. Even after the Court granted certiorari, I remained cautiously optimistic that the Court would uphold the statute based on its plain language. But that optimism was misplaced.

I had a piece published in The Atlantic today about why the decision is wrong and how it’s part of the Court’s broader assault on the idea of prosecutorial discretion. I wanted to share a free link to the article with all of you:

The Supreme Court’s January 6 Decision Is Utterly Baffling - The Atlantic

Justice Barrett, a true textualist, wrote a compelling dissent that was joined by Justices Kagan and Sotomayor. Like her, I think the majority here engaged in a some creative interpretive gymnastics to avoid the clear meaning of the statute.

The good news, to the extent there is any, is that the effect of the decision won’t be as great as some have feared. The editors at Just Security posted this very helpful analysis of all the January 6 prosecutions. It shows how only a relative handful of those cases — about 6% of the more than 1400 charged — will be materially affected by this decision. About 75% of defendants weren’t even charged with this crime. Most of those who were, including Fischer himself, also faced other felony counts so their cases and sentences are unlikely to be substantially affected by dropping this one charge. In other cases, prosecutors may be able to show evidence of the electoral ballots being removed from the floor of Congress to demonstrate that the rioters did impair the availability of physical evidence.

As for Trump himself, two of the four counts in his federal indictment in D.C. rely on this same statute. But it seems clear those charges will be unaffected. The majority in Fischer said that, even under its interpretation, submitting false evidence in a proceeding would still violate the statute. In a concurring opinion, Justice Jackson made the same point.

The charges against Trump rely heavily on the fake electors scheme, which involved trying to submit false slates of Trump electors from states that Trump lost. That is evidence-based obstruction of the Congressional proceeding to certify the election. Special counsel Jack Smith has already taken this position in other pleadings, and it seems clearly correct. The charges against Trump should survive.

Fischer is a disappointing decision and I think it’s clearly wrong. Fortunately, events like January 6 are rare, so the practical impact of the decision should be relatively limited.