Will the Supreme Court kneecap a key law used to prosecute insurrectionists?

Introduction

Millions of Americans watched on January 6, 2021 as thousands of people – at the direction of the sitting president, Donald Trump – stormed the U.S. Capitol building, attempting to stop Congress’ certification of the 2020 presidential election. The Department of Justice (DOJ) continues to investigate the attack and to date has criminally charged more than 1,265 defendants from nearly all 50 states and the District of Columbia for their involvement in that attack. On the heels of a Supreme Court decision declining to remove Donald Trump from the ballot despite being an oath-breaking insurrectionist, another Supreme Court case, which will be argued next month on April 16th, is challenging whether the DOJ can use one of the most frequent – and serious – charges they have used against January 6th defendants, including former President Trump: obstruction of an official proceeding. The outcome of the case could have ramifications for the many defendants charged under this provision, including Trump. 

Codified at 18 U.S. Code § 1512(c)(2), the statute criminalizes any effort to “corruptly… obstruct[], influence[], or impede[] any official proceeding, or attempts to do so.” Conviction under 18 U.S.C. § 1512  carries a 20-year prison sentence, making it an important and useful tool for prosecutors seeking accountability for those who participated in the January 6th insurrection. 

To date, more than 332 defendants have been charged under this provision, including nearly two dozen members of the Oath Keepers, the far-right anti-government militia,  many of whom have already gone to trial or pleaded guilty. In addition, at least four members of the Proud Boys, the QAnon Shaman, Jacob Chansley, and perhaps most notoriously, former President Trump have also been charged with obstruction of an official proceeding.

Perhaps because the government’s ability to charge criminal defendants under this provision is such an important part of its efforts to seek accountability for the January 6th attack on the Capitol, several defendants have argued that the statute does not, and cannot, encompass the activities they are accused of engaging in. In April 2024, in a decision that will have consequences for Donald Trump’s federal indictment related to his efforts to overturn the 2020 election, the Supreme Court will hear oral arguments and decide whether 18 U.S.C. § 1512(c)(2) can be applied to January 6th defendants. A decision is expected by the end of June. Depending on how the Supreme Court interprets the statute, the convictions of hundreds of January 6th defendants could be invalidated, causing a huge step backwards for accountability. 

Who brought the case?

The case was brought by Joseph Fischer, a police officer from Pennsylvania who was charged with, among other things, assaulting a police officer, disorderly conduct in the U.S. Capitol, and obstruction of an official proceeding for his actions on January 6, 2021. During the attack on the Capitol, Fischer allegedly had a “physical encounter” with at least one police officer, and during the attack encouraged members of the mob to “hold the line” and “charge.” 

Fischer is one of three criminal defendants challenging the obstruction of an official proceeding statute at the Supreme Court. The other two defendants – who were charged in separate cases but whose cases were consolidated on appeal – are Edward Lang, who documented his participation in the January 6th attack on social media and allegedly repeatedly struck police officers with a bat, and Garret Miller, who has been found guilty of “assaulting, resisting, or impeding” officers during the Capitol attack and gained prominence after January 6th for advocating the assassination of Congresswoman Alexandria Ocasio-Cortez. 

Several other January 6th defendants filed an amicus brief urging the Supreme Court to hear this case and hold that the obstruction of an official proceeding statute cannot be applied to January 6th participants. 

What is the statute at issue?

The central question in the case is whether § 1512(c)(2) covers physical obstruction of an official proceeding – such as storming the Capitol building to stop the constitutionally mandated counting of the electoral votes – or if it only covers document tampering as it pertains to an official proceeding. 

The relevant text of 18 U.S.C. § 1512 reads as follows:

The statute was signed into law in 2002 as part of the Sarbanes-Oxley Act. Passed in the wake of the Enron scandal where corporate executives destroyed documents relevant to an ongoing SEC investigation, the Sarbanes-Oxley Act was focused on “deterring fraud and abuse by corporate executives” and specifically targeted conduct such as document destruction. The term “official proceeding,” as used in the statute, includes “a proceeding before the Congress.”

Citing this history, the defendants argue that the provision was never intended to apply to incidents like January 6th. Specifically, they argue that subsection (c)(2) is limited by (c)(1), meaning that (c)(2)’s “otherwise obstructs” language only includes the class of obstruction listed in (c)(1), “evidence impairment,” and not to “protests at the seat of government.” They claim that based on canons of statutory interpretation and the statute’s legislative history, this more narrow reading of the statute is warranted. 

The government is represented by Solicitor General Elizabeth Prelogar, who urged the Supreme Court to deny review, arguing that the plain text of the law covered both document destruction and physical attempts to interfere with official proceedings like what occurred on January 6th. The government points to legislative text and history to argue that the intent behind the statute was to “ensure that the criminal code covered the myriad and impossible-to-anticipate ways in which an official proceeding might be obstructed.” To bolster this point, the government points to the titling provision of Sarbanes-Oxley enacting Section 1512(c), which was entitled “Tampering with a record or otherwise impeding an official proceeding,” as demonstrating Congress’s intent that the the statute cover both document-focused misconduct as well as other ways that an official proceeding can be impeded.

Moreover, the government argues in its brief that even if the statute only covers document destruction, it would still apply to these cases because documents were destroyed in the course of the Capitol attack and “preventing the members of Congress from validating the state [electoral] certificates thus constitutes evidence-focused obstruction” as contemplated by the statute. 

What happened in the lower courts?

In the district court, the defendants each sought to have the charge at the center of their appeal, 18 U.S.C. § 1512(c)(2), dismissed, which was granted in each of their cases. 

The defendants argued that the law was only intended to apply to evidence tampering that obstructs an official proceeding and not to physical actions that lead to the suspension of an official proceeding. U.S. District Court Judge Carl Nichols agreed with the defendants and dismissed the charge. Judge Nichols reasoned that because subsection (c)(1) concerns obstructive conduct which involves “a record, document, or other object,” and subsection (c)(2) more generally addresses “obstruct[ing], influenc[ing], or imped[ing] any official proceeding, or attempt[ing] to do so,” it follows then that subsection (c)(2) “must [be] interpreted as limited by subsection (c)(1).” In other words, subsection (c)(2) “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

The judge based his narrow interpretation of the statute on prior case law, canons of statutory construction and statutory and legislative history, and because the defendants’ indictments did not allege that they violated the statute by committing obstructive acts related to “a document, record, or other object,” the district court dismissed the charges under § 1512(c)(2). 

The D.C. Circuit Court of Appeals reversed and reinstated the charges. The appellate court reasoned that “[u]nder the most natural reading of the statute, [the law] applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence tampering provision. The opinion also noted that at least fourteen other district court judges had rejected analogous pretrial challenges to Section 1512(c)(2) charges by other January 6th defendants and adopted the broader reading of the statute as urged by the government in the appeal. In fact, the appellate court noted, Judge Nichols “stands alone” in ruling that § 1512(c)(2) does not reach the conduct of January 6th defendants and that its application is appropriate given that, as a residual clause, it “serves as a catchall for matters not specifically contemplated” by the statute. 

What are the implications for Trump, who has also been charged under § 1512 (c)(2)?

Trump’s federal indictment for efforts to overturn the 2020 election included two counts of obstruction of an official proceeding. In proceedings before U.S. District Court Judge Chutkan, Trump’s lawyers have already argued that his indictment for obstruction of an official proceeding should be dismissed based on the same arguments advanced by the defendants in this case. 

Trump could nonetheless attempt to use the Court’s consideration of Fischer v. United States to delay his trial. Trump’s election interference case was originally set to begin on March 4, 2024 but has since been delayed while he appeals the D.C. Circuit’s decision that he does not have immunity from criminal prosecution. 

Any ruling in Fischer could impact Trump’s indictment depending on how narrowly the court construes the statute. For example, if the Supreme Court found that § 1512 (c)(2) is limited to only obstructive acts related to “a document, record, or other object,” Trump could argue that he did not personally take any actions that“alter[ed], destroy[ed], mutilate[d], or conceal[ed] a record, document, or other object” on January 6th.

But that argument overlooks the facts. As the government’s indictment alleges, part of the broad conspiracy by Trump to overturn the “legitimate results of the 2020 presidential election” included recruiting fraudulent electors in seven states to sign certificates falsely representing that they were legitimate electors, and then transmitting those false certificates to the Vice President and other government officials to be counted on January 6th.  This conduct explicitly included altering government records (namely electoral certificates) and is thus likely well within the scope of the statute, no matter how the Court rules in this case. 

Moreover, even in the unlikely event that the Court were to conclude that the statute didn’t apply to the electoral certificates, the other two charges against Trump would remain viable for prosecution: conspiracy to defraud the United States through his efforts to remain in office despite losing the election and conspiracy against rights through his plot to deprive millions of Americans of the right to have their vote counted. 

How might the Court rule on this case?

The Supreme Court has never ruled on this particular part of the Sarbanes-Oxley Act before. However, the Court’s application of principles of statutory construction and its interpretation of prior case law could signal how the court may rule in this case. 

In Yates v. United States, the Court addressed a similar question as to the scope of another portion of the Sarbanes-Oxley Act, 18 U.S.C. § 1519. In Yates, Justice Ginsberg writing for a plurality of the court found that the interpretation urged by the petitioner in that case would “cut § 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.” Justice Ginsberg further reasoned that the legislative history of the statute led the Court to conclude that a narrow interpretation of the statute at issue was warranted. 

The defendants’ petition specifically points to Yates as a reason for the Court to “correct the D.C. Circuit’s ‘unrestrained reading’ of Section 1512(c)” arguing that the appellate court’s interpretation wrongly disassociates Section 1512(c) from its statutory context and legislative history as an evidence impairment crime enacted in the wake of the 2008 financial crisis. 

The government argues that the defendant’s interpretation of Yates is misplaced. Instead, they argue that the appellate court’s interpretation of § 1512(c)(2) is consistent with, and not contradictory to, the analysis performed in Yates. The government relies on canons of statutory construction to argue that the Yates holding can and should be distinguished by this Court, particularly because the Yates decision focused on a different part of the statute. 

So while the Yates decision may give insight into how the court may rule and is perhaps the closest analogue, the different focus and context could lead the court to make a different decision. 

Should the Court also review the definition of the term “corruptly”?

In the defendants’ brief, they also asked the Court to review an argument not relied on by the courts below, namely, the scope of the “corrupt[]” mental state required by the statute. 

Specifically, the defendants urge the Court to limit the reach of § 1512(c)(2) by defining the term “corruptly” narrowly. Despite the D.C. Circuit rejecting this argument, the defendants point to a dissenting opinion by Justices Thomas and Alito in Marinello v. United States, where they advocate for defining corruptly as, “[r]equir[ing] proof that the defendant not only knew he was obtaining an ‘unlawful benefit’ but that his ‘objective’ or ‘purpose’ was to obtain that unlawful benefit.” 

As the government rightly points out, however, no matter how you interpret the term “corruptly” the defendant’s conduct would meet the definition. Moreover, the government contends, it is inappropriate for the Court to even decide this issue at this interim stage prior to the conclusion of the defendant’s criminal trials.

What does it mean for the Court’s January 6th jurisprudence that it agreed to hear this case?

After the unprecedented events of January 6, 2021, it is only fitting that unprecedented legal cases – many with novel questions that have not been asked in political and legal circles for years, if ever – would result.  The Supreme Court has consistently tried to steer clear of hearing many of the cases related to the January 6th attack on the U.S. Capitol – an approach that worked for several years. 

However, as novel legal issues continue to be litigated, the Court is no longer able to dodge these cases, with just this year the Court agreeing to hear not only Fisher, but also cases that ask if Trump has presidential immunity from prosecution after leaving office and if he is disqualified from holding office under the 14th Amendment for engaging in insurrection. How the Court navigates these cases will be watched by an American public who already view the Supreme Court skeptically, with 60% of Americans disapproving of the job the Court is doing as of February 2024. 

The Supreme Court’s decision to hear this case is especially important in today’s fraught political environment, particularly as we continue to see members of Congress, state legislators and election officials attempt to rewrite the events of January 6th. We can only hope that the Court will meet the perilous moment we are in for our democracy.