This story by Ashley Murray appeared on Colorado Newsline on June 28, 2024.
A former Pennsylvania police officer who joined the Jan. 6, 2021, attack on the U.S. Capitol that delayed the certification of the 2020 presidential election results cannot be charged with obstructing an official proceeding unless a lower court finds otherwise, the U.S. Supreme Court ruled Friday.
The ruling throws into question the cases of potentially hundreds of Jan. 6 defendants who faced the same charge as well as a portion of Department of Justice special counsel Jack Smith’s four-count indictment alleging former President Donald Trump schemed to overturn the 2020 presidential election.
But Attorney General Merrick Garland said following the ruling that he anticipates the decision will not affect the “vast majority” of Jan. 6 cases.
In a 6-3 opinion, the justices, led by Chief Justice John Roberts, wrote that the charge Fischer faces — a subsection of an early 2000s obstruction law — can only be applied to tampering with physical records.
“To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so,” Roberts wrote.
“The judgment of the D.C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion,” Roberts wrote.
Justice Ketanji Brown Jackson delivered a concurring opinion.
Justice Amy Coney Barrett, joined by Justices Sonia Sotomayor and Elena Kagan, dissented.
Impact on Jan. 6 defendants, Trump
The ruling has the potential to affect more than 355 Jan. 6 defendants who were charged with the same felony statute, which carries a fine and not more than 20 years in prison.
Dozens, including leaders of the extremist Proud Boys and Oath Keepers, have already been sentenced on the charge, according to the Department of Justice.
The case, Fischer v. United States, centered on whether Jan. 6 defendant Joseph W. Fischer broke the obstruction law when he joined the mob that breached the U.S. Capitol and delayed Congress, and Vice President Mike Pence, from certifying the 2020 presidential election results that declared Democrat Joe Biden the winner.
Trump also faces the obstruction charge as part of his four-count federal indictment that alleges he worked with others to overturn the election results in seven states, pressured Pence to join him and whipped his base into a frenzy that culminated in the Jan. 6 attack.
Trump will almost certainly challenge the charge, as his legal team has already argued he is completely immune to it.
Trump attorneys D. John Sauer and William Owen Scharf did not respond to an emailed request for comment.
Trump’s 2024 campaign spokesman Steven Cheung responded to the email with a link to Trump’s post on his social media platform Truth Social. The post, published on Friday, read “BIG WIN!”
The cases against those who participated in the Jan. 6 riot have become a rallying cry for Republicans leading up to the 2024 presidential election. Trump, the GOP’s presumed nominee, has repeatedly promised to pardon the defendants.
U.S. House Speaker Mike Johnson of Louisiana told reporters Friday that the Supreme Court decision “says, effectively, the court agrees that a number of the defendants in the January 6 proceedings have been overcharged.”
“And that is something that I also think many people have recognized for some time, and now the highest court in the land has declared that to be so,” Johnson said during a wide-ranging press conference.
How the charges came about
The obstruction provision examined by the high court is contained in section 1512(c) of the Sarbanes-Oxley Act, enacted after the 2001 Enron accounting scandal. The scandal erupted after revelations that the energy company doctored its financial records to inflate its value.
The provision targets “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.”
Fischer, and hundreds of other Jan. 6 defendants, as well as Trump, are charged with the second subsection, cited in court documents as 1512(c)(2).
Significant time during April’s oral arguments centered on whether the second portion of the statute hinged on the first clause, meaning the law could only be applied if physical evidence was involved.
The government argued the two parts are separate and that Fischer, who sent texts leading up to the riot and is shown on police camera footage inside the Capitol, intended to disrupt an official proceeding of Congress.
Fischer’s team argued that he didn’t actually enter the Capitol until Congress had already paused the proceeding, and that he didn’t stay very long.
A lower federal court agreed last year with Fischer’s motion to dismiss the felony charge.
A federal appeals panel in Washington, D.C., did not. Judge Florence Y. Pan — who also sat on the panel in Trump’s presidential immunity appeal — wrote in the lead opinion that the statute is “unambiguous” in its meaning of what constitutes obstructing an official proceeding.
Other charges
The obstruction charge is not the only count brought against Fischer after his participation in the Jan. 6 riot.
The original indictment against him also included charges of civil disorder; assaulting, resisting, or impeding certain officers; entering and remaining in a restricted building or grounds; disorderly conduct; and parading, demonstrating, or picketing in a Capitol building, among others.
Fischer’s attorney Jeffrey Green, who spoke to States Newsroom in person following April’s oral arguments, told the outlet in an emailed statement Friday that his team is “ecstatic.”
“The various opinions offer a particularly clear window into different statutory interpretation modalities among the Justices on today’s Court. And the impact of the opinion on other prosecutions remains to be seen, but we are happy to have driven this criminal statute back to its proper evidence-tampering turf,” the Bethesda, Maryland-based attorney wrote.
Frederick “Fritz” Ulrich, a federal public defender for Pennsylvania’s Middle District and attorney for Fischer, told States Newsroom in a written response Friday that the Supreme Court “construed the scope of 1512(c) consistent with Congress’ aim and our argument that it’s an evidence impairment offense, not some form of omnibus obstruction offense.”
“And at the end of the day, the government has plenty of offenses that it can charge to capture the conduct at issue. As for Mr. Fischer, the D.C. Circuit should ultimately remand to the district court for a trial,” Ulrich wrote.
DOJ reacts
Garland said in a statement Friday that he was “disappointed” by the court’s decision, which he said “limits an important federal statute that the Department has sought to use to ensure that those most responsible for that attack face appropriate consequences.”
However, Garland doesn’t anticipate the ruling will affect a significant swath of the hundreds of Jan. 6 cases, he said.
“The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer,” Garland continued.
The department “will take appropriate steps to comply with the Court’s ruling” for any cases that will be affected, he said.
“We will continue to use all available tools to hold accountable those criminally responsible for the January 6 attack on our democracy,” Garland said.
He described the riot as an “attack on the cornerstone of our system of government — the peaceful transfer of power from one administration to the next.”
Majority justices question government’s claim
Writing for the majority Friday, Roberts disagreed with DOJ’s position that the two parts of the obstruction law could be applied completely separately.
“Although the Government’s all-encompassing interpretation may be literally permissible, it defies the most plausible understanding of why (the two subsections) are conjoined,” Roberts wrote.
“Given that subsection (c)(2) was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and ‘grossly incommensurate patch,’” he wrote, quoting the federal appeals court’s dissenting opinion by Judge Gregory Katsas.
In her concurring opinion, Supreme Court Justice Jackson wrote the high court “properly interprets” the statute and “rightly vacates the judgment below and remands this case for further proceedings.”
Jackson wrote that Congress’ certification of the presidential election results on Jan. 6, 2021, “plainly used certain records, documents, or objects — including, among others, those relating to the electoral votes themselves.”
“And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding ‘in ways other than those specified in (c)(1),’” she wrote, quoting the first subsection of the obstruction law.
“If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand,” Jackson concluded.
In her dissenting opinion, Barrett argued against the majority’s “narrowing” of the subsection.
“There is no getting around it: Section 1512(c)(2) is an expansive statute,” she wrote.
Congress, when writing the law, “set the outer bounds of liability,” she continued.
“(T)he Executive Branch has the discretion to select particular cases to prosecute within those boundaries. By atextually narrowing §1512(c)(2), the Court has failed to respect the prerogatives of the political branches,” Barrett concluded.