The Supreme Court Should Uphold a Key Jan. 6 Obstruction Charge
January 6 defendants obstructed a Congressional proceeding
The Supreme Court has agreed to hear Fischer v. United States, a case challenging an obstruction of justice law used to prosecute hundreds of Capitol rioters. That law, 18 U.S.C. 1512(c), is also the basis of two of the four charges against Donald Trump in the federal indictment in D.C. charging him with crimes related to January 6.
Even if Fischer wins the appeal, the charges against Trump should survive. But it would throw a huge wrench in the gears of hundreds of other January 6 prosecutions. Many defendants will need a new trial, will be able to withdraw their guilty pleas, or may need to be re-sentenced. It would be a real mess.
For more than two years now, I’ve been defending the use of this statute to prosecute January 6 defendants. The Court agreeing to step in now could be a bad sign for prosecutors. But I’m cautiously optimistic that the Court will rule against Fischer and uphold the charge.
When the Supreme Court agreed to take the case, I posted this on social media:
As promised, here is that blog post.
The Statute and the Fischer Decision
Joseph Fischer is charged with being part of the violent mob that rioted at the Capitol and forced Congress to delay the electoral vote count. His seven-count indictment includes charges of assaulting police officers, disorderly conduct, and unlawful entry in a restricted area. He is also charged under 18 U.S.C. 1512(c), which provides:
(c) 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.
The Justice Department has used section (c)(2) to prosecute hundreds of Capitol rioters. The charge is that by storming the Capitol, forcing Congress to flee, and delaying the vote count for hours, the rioters corruptly obstructed and impeded an official Congressional proceeding.
Trump’s D.C. indictment similarly charges him under 1512 with one count of obstructing the Congressional proceeding and one count of conspiring to obstruct that proceeding. Those charges are based on all the different aspects of the alleged scheme to overturn the election, including pressuring state officials, submitting slates of phony electors, sending the mob to the Capitol, and exploiting the violence there to disrupt the certification of Biden’s victory.
Many January 6 defendants have challenged the use of 1512(c) on various grounds. More than a dozen federal judges in D.C., appointed by presidents of both parties, have rejected those challenges. But one Trump-appointed judge, Carl Nichols, concluded that the statute is ambiguous. As a result, he said, subsection 2 must be interpreted in light of subsection 1 and be limited to obstructive acts that impair the integrity of documents or records. Because Fischer was not charged with any such acts, Nichols dismissed the charge against him and two other defendants.
The government appealed. The D.C. Circuit reversed Judge Nichols and reinstated the charge. Now the Supreme Court has agreed to review that decision.
The D.C. Circuit’s decision in Fischer resulted in three separate opinions. Judge Pan wrote the lead opinion, concluding that the language of the statute is clear and that it properly applies to defendants who shut down a proceeding by staging a riot. Judge Walker wrote a concurrence agreeing with Judge Pan about the coverage of the statute but arguing that the court should have ruled on the proper definition of corrupt intent. Judge Katsas dissented, agreeing with Fischer that the statute should be limited to obstruction involving the impairment of physical evidence.
I wrote about the Fischer decision in more detail in this post:
I think Judge Pan got it right in every respect. The statute is not ambiguous and clearly applies to the actions of the Capitol rioters. I believe a majority of the Supreme Court will agree.
United States Supreme Court
Begin With the Plain Language
When it comes to interpreting statutes, textualism — relying first and foremost on the text of the statute — is the starting point. Rules of statutory construction may help a court interpret a statute if it is ambiguous. Considering legislative history or Congress’s purpose in passing the law likewise may be helpful and appropriate if the statute is unclear. But if the language is clear, the court’s job is at an end.
Judge Pan quoted a 1992 Supreme Court case on this point:
[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Look again at the language of 1512(c) quoted above. It is very clear. Subsection 1 prohibits corruptly obstructing a proceeding by tampering with physical evidence. Subsection 2 is a catch-all provision, prohibiting other kinds of corrupt acts that obstruct an official proceeding. The two distinct clauses, set off by a semicolon and the words “or” and “otherwise,” have a different meaning and cover alternative methods of obstruction.
In my view, you have to work really hard to find any ambiguity here. Judge Pan agreed, as has almost every other judge to consider the question. Quoting a Supreme Court opinion authored by Justice Barrett regarding another statute, Judge Pan wrote that the dissent’s arguments “read like elaborate efforts to avoid the most natural meaning of the text.” Indeed, if you have to spend as many pages as Judges Katsas and Nichols did trying to prove that a statute is ambiguous, that’s probably a good sign that it really isn’t.
The conservatives on this Supreme Court, including those appointed by Trump, all claim to be committed to textualism. They revere the last Justice Antonin Scalia, who was a driving force behind establishing textualism as the primary mode of judicial interpretation. Textualists should agree with Judge Pan that the language here is unambiguous and reject Fischer’s argument.
Judge Pan noted that, having found that the language was clear, the D.C. Circuit could have stopped there. But she nevertheless went on to rebut the arguments made by Fischer and adopted by Judges Katsas and Nichols. Let’s turn to those arguments now.
Reliance on the Statute’s History and Context
A key claim of those who favor limiting 1512(c) to evidence impairment is that the law should be interpreted in light of what motivated its passage. Section 1512(c) was passed as part of the Sarbanes-Oxley reforms in 2002. During the Enron scandal in the early 2000s, the prosecution of accounting giant Arthur Andersen for shredding millions of documents was hamstrung by loopholes in the existing obstruction laws. Congress passed the Sarbanes-Oxley Act in response to that scandal.
In his petition for certiorari, Fischer argues that 1512(c) must be interpreted consistent with Congress’s purpose in Sarbanes-Oxley, which he says was to respond to crimes involving the destruction of evidence. He even characterizes 1512(c) as an “anti-shredding” law.
I did a deeper dive on the history and purpose of section 1512(c) and its inclusion as part of Sarbanes-Oxley in my first post on this subject back in 2021. You can find that here if you’re interested:
The first flaw with this argument, of course, goes back to the plain language of the statute. As Judge Pan noted, the best evidence of Congress’s purpose is what it said, and what it said is quite clear. Reliance on things like “context” and Congressional intent should come into play only if the law is ambiguous. Here, it’s not.
In any event, Congress’s purpose in passing Sarbanes-Oxley may be more accurately characterized as seeking generally to prohibit the obstruction of federal proceedings, not to prohibit only some forms of obstruction while exempting others. This is particularly true when you consider how easy it would have for Congress to write subsection 2 to say, “otherwise seeks to obstruct a proceeding through impairing the availability of physical evidence,” or something similar, rather than using the broad language that it did.
Congress may have been prompted to act by the Enron scandal, but it quite sensibly passed a law that would prohibit all forms of obstruction, not just those limited to evidence impairment. That’s what the plain language of the statute says.
The Fish Case: United States v. Yates
Those who argue 1512(c) should be limited based on the context in which it was adopted rely heavily on the 2015 Supreme Court case of Yates v. United States. Yates involved another obstruction statute, 18 U.S.C. 1519, also passed as part of the Sarbanes-Oxley Act.
Section 1519 prohibits obstructing federal investigations by altering, destroying, or otherwise tampering with any “record, document, or tangible object.” In a 5-4 decision, the Supreme Court held that although that language seemed clear, it had to be interpreted in the context of Congress’s purpose behind Sarbanes-Oxley. It concluded that “tangible object” must be limited only to objects, like documents and records, that store information — the kind of obstruction at the heart of the Enron scandal. It therefore threw out the charge against a fishing captain, John Yates, for obstructing an investigation by destroying fish he had caught illegally.
Justice Elena Kagan wrote a compelling dissent in Yates. She argued that the language of the statute was clear and that a fish is obviously a tangible object. Although the statute may be broad, she wrote, the Court should conclude that Congress “said what it meant and meant what it said.” She argued it was not the Court’s job to create ambiguity where none existed and then rewrite the law.
Kagan was joined by, among others, Justice Scalia.
The Reasoning of Yates Does Not Apply to 1512(c)
As I wrote when it was decided, I think the majority in Yates was wrong and Justice Kagan was right. I won’t repeat all those arguments here, but here’s my earlier post if you want a deeper dive:
But even if we accept the reasoning behind Yates, it doesn’t support similarly narrowing 1512(c). In addition to the context in which Congress passed the law, the Court in Yates relied on various rules of statutory interpretation to conclude that “tangible object” was limited to objects that store information. Almost none of those rules, however, would apply to an analysis of 1512(c).
The most important of these rules govern how to interpret a general term that appears at the end of a list of more specific ones. Judge Katsas relied heavily on these same interpretive rules in his dissent in Fischer. The rules have unpronounceable Latin names but essentially mean that a word is known by the company it keeps.
For example, if a statute referred to “bats, balls, shoulder pads, hockey sticks, and other equipment,” you’d conclude that by “equipment” Congress probably meant sports equipment. You probably wouldn’t conclude a bulldozer was covered by the statute, even though a bulldozer could be considered “equipment” in another context.
Section 1519 applies to obstruction directed at a “record, document, or tangible object.” The Court concluded that “tangible object” should be interpreted in light of the more specific terms that precede it, and should be limited to tangible objects that contain or store information, similar to documents and records (a computer thumb drive, for example).
But as the D.C. Circuit majority and multiple trial judges have held, those rules simply don’t apply to a statute structured like 1512(c). The general language prohibiting obstruction does not appear at the end of a single list of more specific terms but in an entirely separate subsection, with its own nouns and verbs. 1512(c)(1) prohibits obstruction by tampering with physical evidence. Subsection (2) prohibits “otherwise” – or in a different manner - obstructing a proceeding. It is connected to subsection (1) by the disjunctive “or,” signifying that it constitutes an alternative way to violate the statute.
The Court in Yates also relied on other interpretive tools to support its conclusion, including the title of the statute, its placement in the criminal code, and some of the verbs used in 1519 (you can’t “make a false entry” in a fish, for example). None of those arguments applies to 1512(c). I don’t have the space here, but in my first post on using 1512(c) to prosecute the Capitol riot I went into more detail about why the reasoning of Yates doesn’t apply. Judge Pan also does a masterful job of explaining why none of those considerations apply to 1512(c).
Avoiding Absurd Results
Another rule of statutory construction cuts in the government’s favor. Congress should not be presumed to intend absurd results. That’s the problem with the decision in Yates. It means, for example, that if Yates destroyed pictures of the fish, or his ship’s log, he could still be prosecuted. But if he destroys the fish themselves — the best evidence of his violation — he can’t be. A suspect in the murder of a federal officer could be charged under 1519 for destroying the victim’s notebook, but not for destroying the murder weapon.
A ruling for Fischer would lead to similarly absurd outcomes. The rioters would not violate 1512(c) by violently storming the Capitol, assaulting police officers and breaking doors and windows, to shut down the proceeding. But if in the process they also happened to destroy a chart that was being used as an exhibit, then their actions would fall within the statute. Another example: submitting a false affidavit that had no actual effect in a proceeding would violate the statute; staging a violent riot to shut down the same proceeding would not.
Proponents of narrowing the statute never explain what possible reason Congress could have for intending such illogical and arbitrary outcomes. The much more reasonable interpretation is that Congress did not intend them. It passed a law that prohibits all corrupt acts of obstruction, not one that prohibits some forms of obstruction and gives others a free pass.
Statutory Overlap and Redundancy
Another key argument in favor of limiting the scope of 1512(c)(2), made by both Judges Katsas and Nichols, is that if it is construed based on its plain language it will overlap with several other obstruction laws. In fact, (c)(2) could be said to subsume (c)(1) and make it unnecessary. If an interpretation of a statute will make it redundant or superfluous, that generally cuts against such an interpretation.
But where obstruction laws are concerned, this argument has little force. Even if the defense interpretation of 1512(c) is adopted, it will still substantially overlap with other obstruction statutes such as 18 U.S.C. 1503, 1505, and 1519. Fischer’s interpretation also suggests that 1512(c)(2) is redundant and unnecessary, because it simply reiterates what is provided in (c)(1).
Redundancy and overlap are common in this section of the criminal code and existed before 1512 was passed. For example, an older obstruction law, 18 U.S.C. 1503, contains a catch-all “omnibus clause” within the statute that arguably subsumes and makes unnecessary everything that comes before it in the same paragraph.
The obstruction of justice statutes are so famously jumbled that professor Julie O’Sullivan at Georgetown Law once wrote a popular article about the incoherence of the federal criminal code, using the obstruction of justice statutes as her theme.
As Judge Pan noted, courts do favor interpretations that avoid superfluousness. But that carries little weight when an interpretation will just substitute “one instance of superfluous language for another.” That’s the case here.
The Parade of Horribles
The other key argument made by those who favor narrowing the statute is what I call the “parade of horribles.” They argue that there are many legitimate, protected ways of influencing a proceeding, such as lobbying or peaceful protests, and that such activities could be prosecuted if the government’s interpretation is upheld. This was a key argument in Judge Katsas’s dissent.
But this risk is tempered by the statutory requirement that prosecutors prove corrupt intent beyond a reasonable doubt. That requirement, coupled with the sound exercise of prosecutorial discretion, effectively limits the reach of the statute.
In the two decades since 1512(c) was passed, we haven’t seen the abuses Judge Katsas claims to fear. In fact, there’s another statute, 18 U.S.C. 1505, that also prohibits corruptly influencing a Congressional proceeding. (Remember what I said about all the overlap in the obstruction laws?) It was first passed in 1948. If the fears of legitimate lobbyists and innocent protestors being prosecuted were legitimate, we would have seen some of those cases in the last 75 years. We haven’t.
This is a feature of the obstruction of justice laws and many other white collar crimes: conduct that is otherwise lawful may become criminal if done with corrupt intent. An attorney who objects to the admission of a relevant exhibit into evidence could be said to be impeding the search for truth in that proceeding. But we don’t fear prosecution of that attorney because prosecutors could not prove corrupt intent - the attorney was just doing her job. (And note that 1512(c) would still potentially apply to the attorney’s actions, even if it is limited as Fischer requests.)
Unfortunately, the parade of horribles might be persuasive to some of the Justices. When it comes to white collar crime, the Court is often receptive to such arguments. It reminds me of the arguments in McDonnell v. United States. There, supporters of Governor Bob McDonnell argued that if the Court didn’t dramatically narrow federal bribery law, politicians might find themselves prosecuted for routine acts such as attending a Rotary Club breakfast. Of course, in the decades the federal bribery statute (which also requires corrupt intent) had been on the books before McDonnell, prosecutors had not brought such charges. But that didn’t stop the Court from relying on that parade of horribles to dramatically narrow federal corruption law.
If the Court rules in Fischer’s favor and narrows 1512(c), I expect this to be the primary reason. The Justices will express fears about all the hypothetical abuses that might result if they don’t limit the statute, even though in more than seven decades of obstruction law there is no history of such abuses. That would fit the pattern of the Court’s white collar decisions in recent years, where it often has limited statutes based on hypothetical fears about how prosecutors might use them.
Application of the statute to facts like these is unprecedented, but that’s because January 6 was unprecedented. The logical and appropriate application of 1512(c) to the extreme events of that day doesn’t mean prosecutors are now going to abandon their sound practices from prior decades and start targeting peaceful protestors and lobbyists. It would be foolish to ignore the plain language of the statute to excuse the Capitol rioters based on feared abuses that live only in the imaginations of those seeking to avoid liability for their violent acts.
The Potential Penalty
Another argument you might hear in favor of narrowing 1512(c) is that it carries a maximum twenty-year penalty. This point is usually made in conjunction with the parade of horribles, as in: “A lobbyist simply advocating for a bill that some prosecutor considers immoral could face twenty years in prison!”
Judge Katsas, in his dissent, argued that the broader interpretation of 1512(c)(2) was untenable because crimes that were otherwise relatively minor, such as picketing outside a judge’s home to influence a proceeding or disorderly conduct in the Capitol building, could now be charged as a twenty-year felony.
The majority in Yates expressed a similar concern that a simple fishing captain might face twenty years for destroying evidence of a relatively minor offense. But as Justice Kagan pointed out in her dissent, many statutes carry a significant maximum penalty because they are intended to apply to a wide range of potential conduct. Judges, with the assistance of the Sentencing Guidelines, take that into account at sentencing. (Despite all the rhetoric, Captain Yates was actually sentenced to only 30 days.)
The same is true here. Judges are able to take the circumstances of individual cases into account to fashion the appropriate penalty.
How Will the Justices Rule?
My Twitter prediction was that Justice Kagan will write for a majority that upholds the statute. Given her dissent in Yates, she is the perfect choice to write an opinion that will uphold the use of this statute based on its plain language.
Two or three of the Trump appointees on the Court should join her, if they remain true to their textualist principles. Recall that Justice Scalia, their jurisprudential hero, joined Justice Kagan in dissent in Yates.
Justice Alito wrote a concurrence in Yates that provided the deciding fifth vote, and wrote that he thought it was a very close call. But none of the interpretive rules that he relied on in Yates apply to 1512(c). If he is consistent, Justice Kagan may be able to pull him over to her side in this one.
Justice Jackson might be concerned about future hypothetical prosecutions of peaceful protestors, but it’s hard for me to imagine her joining an opinion that excuses the Capitol rioters. She should join Justice Kagan as well.
Chief Justice Roberts also was in the majority in Yates. He tends to be very sympathetic to the “parade of horribles” arguments. I think he could agree with Fischer and Judge Katsas that the statute needs to be limited. Justice Sotomayor was also with the majority in Yates. She, too, might be concerned about application of the statute to other protests.
Finally, Justice Thomas also joined Justice Kagan’s dissent in Yates. Assuming he doesn’t recuse himself in Fischer (as many are calling for him to do), he could join Justice Kagan again — but with a case involving January 6, all bets are probably off when it comes to Thomas.
Considering all of the above, I think Justice Kagan could cobble together at least a five or six Justice majority to uphold the application of 1512(c) to the Capitol riot.
This may be wildly over-optimistic. After all, the fact the Court took the case at all may suggest a desire to limit the statute on the part of at least four Justices (it only takes four to grant certiorari). But given how close a decision Yates was, the differences between that statute and this one, and the changes in the makeup of the Court since Yates — this is how I see it.
The Effect on Trump’s Prosecution
The case should be argued sometime this spring and decided no later than the end of June. Even if the Justices agree with Fischer and limit 1512(c) to evidence-based obstruction, I think the charges against Trump will survive. Prosecutors should be able to argue that the scheme to submit slates of phony electors (essentially forged evidence), the scheme to discard the lawful ballots, and physical risks posed to the lawful ballots, all constituted evidence-based obstruction of the Congressional proceeding.
But hundreds of other Capitol rioters have been prosecuted not for evidence-based obstruction but for obstructing the proceeding by rioting and shutting it down. Theirs are the cases that will be affected.
In the end, to rule for Fischer the Court must conclude that if a violent mob stormed one of its own oral arguments, shouting that they should hang the Chief Justice and forcing the justices and lawyers to flee, that would not constitute corrupt obstruction of the proceeding. That conclusion flies in the face not only of the plain language of the law, but of common sense.
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