[inside the Supreme Court]

Supreme Court wary of obstruction charge used against some Jan 6 riot defendants

The Supreme Court’s conservative majority expressed concern Tuesday over the federal government’s use of an obstruction law to prosecute a Jan. 6 Capitol riot defendant, which could have major implications for President Trump’s separate election interference case.

Joseph Fischer, a onetime police patrolman, is one of about 350 people charged by the Justice Department with ‘obstruction of an official proceeding’ in connection with the disruption of Congress’ certification of then-former Vice President Joe Biden’s 2020 presidential election victory over Trump.

Trump is also facing that same obstruction count.

At issue is whether a federal law passed two decades ago to address corporate fraud and document destruction can be properly applied to those allegedly engaged in ‘assaultive conduct’ like participating in a riot.

Several on the bench expressed concern the obstruction statute sweeps too broadly into areas like peaceful but disruptive conduct.

‘Would a sit-in that disrupts a trial, or access to a federal courthouse, qualify? Would a heckler in today’s audience [inside the Supreme Court] qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify?’ asked Justice Neil Gorsuch. He may have been referring to Rep. Jamaal Bowman, D–N.Y., charged with triggering a fire alarm in a House office building in a non-emergency.

But others on the court appeared to agree with the government’s view that Congress intended to allow a ‘classic catchall’ to include other obstructive behavior involving official proceedings.

Justice Sonia Sotomayor said the provision was designed to ‘cover every base,’ including the Capitol riots.

‘We’ve never had a situation before,’ she said, ‘with people attempting to stop a proceeding violently.’

A federal judge earlier dismissed the obstruction offense against three Jan. 6 criminal defendants, ruling it did not cover their conduct on the Capitol grounds. Those defendants include Fischer, Garret Miller of the Dallas area, and Edward Jacob Lang of New York’s Hudson Valley.

The high court accepted Fischer’s appeal for final review.

U.S. District Judge Carl Nichols, a 2019 Trump bench appointee, determined prosecutors stretched the law beyond its scope to inappropriately apply it in these cases, ruling a defendant must have taken ‘some action with respect to a document, record or other object’ to obstruct an official proceeding under the law.

The Justice Department challenged that ruling, and a federal appeals court in Washington agreed with prosecutors that Nichols’ interpretation of the law was too limited.

The relevant statute – 18 U.S. Code Section 1512(c)(2) – of the Corporate Fraud Accountability, part of the Sarbanes-Oxley Act, reads:  ‘Whoever corruptly… 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.’

Congress passed the law in 2002, after the Enron financial and accounting scandal. Executives at the Texas-based energy company were charged with fraud, and the company eventually went bankrupt.

Nichols, in his ruling in the Miller case, cited then-Senator Biden, who referred to the new provision at the time as ‘making it a crime for document shredding.’  

Both the government and Fischer – who was a North Cornwall Township police officer in Pennsylvania at the time – offer contrasting accounts of his actions on Jan. 6, 2021.

In his appeal, Fischer’s lawyers argued he ‘was not part of the mob that forced the electoral certification to stop; he arrived at the Capitol grounds well after Congress recessed.’

And while he admits entering the Capitol building and pushing his way through the crowd, Fischer claims he also helpfully returned a pair of lost handcuffs to a U.S. Capitol police officer. After being pepper-sprayed by law enforcement, the defendant then says he left the complex just four minutes after entering.

But the Justice Department says Fischer ‘can be heard on the video yelling ‘Charge!’ before pushing through the crowd and entering the building. Once inside, he allegedly ran toward a line of police officers with another rioter while yelling profanities.

And the prosecution points to text messages he sent just before attending the ‘Stop the Steal’ rally where Trump spoke – and the subsequent march to the Capitol.

‘Take democratic congress to the gallows,’ he said in one post, and ‘Can’t vote if they can’t breathe.. lol.’

Fischer has pleaded not guilty to several charges, including disorderly and disruptive conduct; assault, resisting or impeding law enforcement officers; civil disorder; and obstruction. His trial is pending. His legal team argues hindering or affecting an official proceeding is too ambiguous, as applied to Fischer’s conduct on the Capitol grounds.

For more than 90 minutes Tuesday, the justices offered a range of hypotheticals about how the relevant obstruction statute could be applied in other contexts.

Justice Amy Coney Barrett raised the criminal charges against Trump in the election interference case. She asked whether the charges were evidence-related over obstructing or impeding evidence and could be applied to Trump’s alleged efforts to disrupt the presidential electoral vote count and certification by Congress on Jan. 6.

‘Do you agree that the government could take a shot at proving that your client actually did try to interfere with … evidence because he was trying to obstruct the arrival of the certificates arriving to the vice president’s desk for counting?’ Barrett asked. 

Justice Clarence Thomas, who returned to the bench after missing Monday’s oral arguments for unexplained reasons, asked whether other violent, anti-government protests were prosecuted under the statute.

U.S. Solicitor General Elizabeth Prelogar struggled to find specific examples but did say the obstruction provision was used in document forgery and witness tampering cases.

‘For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses,’ said Justice Samuel Alito, suggesting the obstruction statute was not being applied fairly. 

‘What happened Jan. 6 was very, very, serious. I’m not equating this with that,’ added Alito.’ But we need to find what are the outer reaches of this statute under your interpretation.’

Fischer awaits trial on six other criminal offenses and has pleaded not guilty.

‘Why aren’t those six counts good enough?’ Justice Brett Kavanaugh asked, questioning the necessity of adding the obstruction offense.

How a Supreme Court ruling in the Fischer case would affect Trump’s separate prosecution for election interference is unclear. If Fischer prevails, the former president could then ask the federal courts to formally dismiss his obstruction charge.

That could prompt a new round of separate legal appeals that might go back to the Supreme Court for final review.  

Nine days after oral arguments in the Fischer case, the justices are expected to hold a public session to debate whether Trump enjoys absolute immunity from prosecution for conduct in office when allegedly seeking to overturn the 2020 election results and certification.

That has paused Trump’s criminal conspiracy and obstruction trial indefinitely.

The separate challenge over the obstruction charge would also likely push the schedule well into next year.

The pending high court case is Fischer v. U.S. (23-5572). A ruling is expected by early summer.

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