Justices Examine Use of a Law to Charge Jan. 6 Rioters (2024)

Trump allies are using this case to try to reframe the Jan. 6 attack.

Senator Tom Cotton of Arkansas, Representative Jim Jordan of Ohio and other Republican lawmakers said in one brief that “the Department of Justice and D.C. juries have readily attributed immorality to the genuine belief of many Jan. 6 defendants that there was fraud during the 2020 presidential election.”

Protests are part of the fabric of politics, they wrote, adding that the prosecutors’ interpretation of the statute would have applied to a peaceful rally led by the Rev. Dr. Martin Luther King Jr.

“Advocacy groups throughout history have organized trips to Washington timed to congressional or executive consideration of favored items,” the lawmakers wrote in the brief before going on to quote from a magazine article. “Most famously, the 1963 civil rights ‘March on Washington’ ‘was designed to force President Kennedy to support the Civil Rights Act’ then pending in Congress.”

The brief also discussed other protests, including the disruption of the Supreme Court confirmation hearing of Justice Brett M. Kavanaugh, and praised the Trump administration’s restraint.

“Those actions by protesters were highly improper and certainly were criminal,” the brief said of the Kavanaugh protest. “But President Trump’s Department of Justice did not adopt the strained view that those protesters should be charged” under the statute at issue in the new case.

The Biden administration, in its main brief, devoted a paragraph to the critique, drawing several distinctions. The law, the brief said, “covers acts that hinder a proceeding — not acts, like lobbying or peaceful protest, that are not readily characterized as rising to the level of obstruction or that independently enjoy protection under the First Amendment.”

The brief added that the law applied only to conduct directed at a specific proceeding and required proof that the defendant had acted corruptly.

Critics of Mr. Trump — including J. Michael Luttig, a conservative former appeals court judge, and John Danforth, a Republican former senator from Missouri — countered that the comparisons pressed by Mr. Cotton and Mr. Jordan were profoundly misplaced.

“There is simply no historical comparison between the consequences of criminal acts in opposition to the election of a new president — as illustrated by both our Civil War and the Jan. 6, 2021, invasion — and the ‘what about’ examples discussed in the Cotton-Jordan brief,” they wrote in a brief. “Indeed, no one was physically hurt” as part of “any of those examples.”

“And none of those examples,” they added, “threatened something remotely as fundamental to our constitutional system as the peaceful transfer of executive power.”

Richard D. Bernstein, a lawyer for Mr. Luttig and other former officials who signed the supporting brief, said that allowing cases under the obstruction law to proceed was crucial.

“These obstruction prosecutions deter possible future invasions of Congress aimed at preventing the peaceful transfer of power,” he said.

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The court’s decision in today’s Jan. 6 case could eliminate some of the federal charges that former President Donald J. Trump is facing for his role in the plot to subvert the 2020 election. It could also jeopardize hundreds of Jan. 6 prosecutions.

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As someone who frequently sues the government seeking disclosures under the Freedom of Information Act, I can attest that the Justice Department often takes the position that Office of Legal Counsel opinions usually do not rise to the level of being a formally adopted policy. That means, in the government’s view, they are exempt from disclosure even though they are considered binding legal interpretations for the rest of the government.

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The implication of her argument is that the government has shown it has used the charge judiciously in Jan. 6 cases, so the interpretation she advocates won’t lead to a wholesale criminalization of political protest.

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What does it mean to act ‘corruptly’?

In the lead opinion, Judge Florence Y. Pan wrote that Mr. Fischer’s conduct satisfied any plausible definition and that she would not choose among them. “I leave the exact contours of ‘corrupt’ intent for another day,” Judge Pan wrote.

But Judge Justin R. Walker said he was willing to concur in her opinion only on the condition that prosecutors be required to prove that Mr. Fischer had acted corruptly in the sense of having “an intent to procure an unlawful benefit either for himself or for some other person.”

Moreover, Judge Walker wrote, prosecutors must prove that “the defendant not only knew he was obtaining an ‘unlawful benefit’ but that his ‘objective’ or ‘purpose’ was to obtain that unlawful benefit.”

The definition was crucial, Judge Walker wrote, limiting what would otherwise be the law’s “breathtaking scope.”

“If I did not read ‘corruptly’ narrowly,” he wrote, “I would join the dissenting opinion.”

In dissent, Judge Gregory G. Katsas wrote that he would define “corruptly” even more narrowly, requiring an intent to procure “an unlawful financial, professional or exculpatory advantage.”

“In contrast, this case involves the much more diffuse, intangible benefit of having a preferred candidate remain president,” Judge Katsas wrote. “If that is good enough, then anyone acting to achieve a specific purpose would satisfy this requirement, for the purpose of the action would qualify as the benefit.”

Judge Walker said he was doubtful of that reading, but he added that Mr. Fischer’s conduct might qualify under even that strict standard.

“This case may involve a professional benefit,” he wrote. “The defendants’ conduct may have been an attempt to help Donald Trump unlawfully secure a professional advantage — the presidency.”

Prelogar says no, but for the simple reason that an attack like the one that took place at the Capitol on Jan. 6 had never happened before.

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A key precedent ruled that a fish is not a tangible object.

One of the sponsors of the law, Michael Oxley, filed a brief in that case explaining its history and purpose, saying it sought to close gaps that made it hard to prosecute accountants in the wake of the collapse of Enron, a giant energy company.

The law meant to address “specific loopholes” that Arthur Andersen, Enron’s accountants, “had exploited when they shredded business documents and destroyed hard drives in anticipation of federal law-enforcement action,” wrote Mr. Oxley, a former Ohio representative, who died in 2016.

The law, Mr. Oxley wrote, was tightly focused on such conduct and should not be read too broadly. Though he did not address the provision at issue in the new case, it is a good bet that he would have been skeptical of prosecutors’ reliance on it in a case about an attack on the Capitol. (Paul S. Sarbanes, a former senator from Maryland and the law’s other principal sponsor, died in 2020.)

The question for the justices in the old case, Yates v. United States, was broadly similar to the one the justices are considering on Tuesday: How far can a law meant to address white-collar business fraud be stretched to encompass other sorts of wrongful conduct?

The case arose from a 2007 search of the Miss Katie, a fishing vessel whose captain was John L. Yates. A field officer boarded the ship at sea and noticed fish that seemed less than 20 inches long, which was under the minimum legal size of red grouper at the time.

The officer measured the fish and placed the 72 he deemed too small in a crate. He issued a citation and instructed Mr. Yates to take the crate to port for seizure. But Mr. Yates had the fish thrown overboard and replaced with larger ones. A second inspection in port aroused suspicions, and a crew member eventually told law enforcement officials what had happened.

Mr. Yates was convicted of violating a part of the Sarbanes-Oxley Act that made it a crime to conceal or destroy “any record, document or tangible object with the intent to impede, obstruct or influence” a federal investigation. He was sentenced to 30 days’ imprisonment.

On appeal, Mr. Yates argued that the term “tangible object,” read in context, did not apply to fish. Mr. Oxley’s supporting brief agreed, saying Congress had meant to address the shredding of records and similar conduct.

“Against this unanimous evidence of congressional intent, the government’s reading of” the provision “to reach destruction of any and all things, including piscine creatures, falls flat,” Mr. Oxley wrote.

By a 5-to-4 vote, the Supreme Court ruled that the law did not reach fish.

“A fish is no doubt an object that is tangible,” Justice Ruth Bader Ginsburg wrote for four of the justices in the majority. But she added that it would cut the law “loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.”

In dissent, Justice Elena Kagan wrote that the plain words of the law mattered more than its purpose. “A fish is, of course, a discrete thing that possesses physical form,” Justice Kagan wrote, citing as authority the Dr. Seuss classic “One Fish, Two Fish Red Fish Blue Fish.”

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A key question in the case: the meaning of ‘otherwise’

So far, so good. It is uncontroversial to reinforce that destroying documents to impede an investigation has been a core purpose of the law, which was prompted by the shredding of documents in an accounting scandal.

The second part of the provision makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding. Prosecutors say the defendant in the case, Joseph W. Fischer, did that by joining the mob that attacked the Capitol on Jan. 6, 2021.

The heart of the case is how the first part of the provision pivots to the second part.

The ordinary meaning of “otherwise,” prosecutors say, is “in a different manner.” That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence. The second part, they say, is a broad catchall for any kind of corrupt interference with an official proceeding.

Lawyers for Mr. Fischer, the defendant in Tuesday’s case, counter that the first part must inform and limit the second one — meaning that the obstruction of official proceedings must be linked to the destruction of evidence. They would read “otherwise” as “similarly.”

The alternative, they say, would be to create a crime of breathtaking scope that would allow prosecutors to charge political protesters and others with felonies carrying 20-year prison sentences.

In 2008, in Begay v. United States, the court considered a law with a broadly similar structure, the Armed Career Criminal Act, which requires mandatory sentences for people convicted of possessing firearms if they have earlier been found guilty of three violent felonies. In one clause, it listed specific crimes that qualified as violent felonies — including burglary, arson and extortion.

Then, as in the new case, there followed an “otherwise” clause, this one adding any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The Supreme Court ruled that the examples informed and limited the sweep of the “otherwise” clause. If Congress had “meant the statute to be all-encompassing, it is hard to see why it would have needed to include the examples at all,” Justice Stephen G. Breyer wrote for the majority.

A drunken driving offense, the court ruled, did not qualify as one of the covered crimes even though the plain words of the clause would seem to encompass it.

Mr. Fisher’s lawyers say that the “otherwise” clause in the obstruction statute must also be anchored in the preceding clause.

The U.S. Court of Appeals for the District of Columbia Circuit disagreed, with Judge Florence Y. Pan writing that the two uses of “otherwise” were different. The gun law, she wrote, “includes a list of examples followed by ‘otherwise’ in a single, unbroken sentence.”

By contrast, she wrote, the “otherwise” in the Sarbanes-Oxley Act “sits within a separately numbered subparagraph, after a semicolon and line break, all of which put distance between it and the lists of verbs and objects” in the previous part.

In dissent, Judge Gregory G. Katsas wrote that “the relationship created by the word otherwise does not depend on punctuation or line breaks.”

Rather, he wrote, “it flows from the connotation of similarity,” among other factors. That meant, he concluded, that the second part of the provision applies “only to acts that affect the integrity or availability of evidence.”

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What does the law at issue in the case actually say?

At least part of what it meant to accomplish was to address a gap in the federal criminal code at the time: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself.

The law meant to close that gap. It did, in a two-part provision, Section 1512(c) of the federal criminal code:

(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 first part focuses on evidence, making it a felony to tamper with it to affect an official proceeding. The second part makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding.

The heart of this case is the pivot from the first part to the second part. The ordinary meaning of “otherwise,” prosecutors say, is “in a different manner.” That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence — in their view, making the second part a broad catchall for any kind of corrupt interference with an official proceeding.

The lawyers for Joseph W. Fischer, who was accused of breaching the Capitol on Jan. 6, 2021, and of assaulting police officers, counter that the first part must inform and limit the second one — meaning that the obstruction of official proceedings must be linked to the destruction of evidence. They would read “otherwise” as “similarly.”

The alternative, they say, would be to create a felony of breathtaking scope that would allow prosecutors to charge political protesters with felonies carrying 20-year prison sentences.

The court’s decision could have a direct impact on Donald Trump.

If the justices determine that prosecutors improperly used the obstruction law against members of the pro-Trump mob who disrupted the session, Mr. Trump’s lawyers will surely seek to have the charges against him dismissed as well. In fact, they already tried that in October. They argued unsuccessfully to the trial judge in the case that Mr. Trump’s indictment unfairly used the statute, which was initially “directed at the destruction of records in accounting fraud,” by applying it “to disputing the outcome of a presidential election.”

“This stretches the statutory language beyond any plausible mooring to its text,” the lawyers wrote.

Jack Smith, the special counsel handling Mr. Trump’s case, has told the Supreme Court that the two obstruction counts against the former president would be still valid even if the justices narrowed the law to cover only crimes that involved tampering with documents or records.

Mr. Trump triggered that provision of the law, Mr. Smith has said, by plotting to create fake slates of electors that claimed he won in several keys swing states that he actually lost to President Biden. Mr. Smith has accused Mr. Trump of trying to use those fake slates to throw the certification proceeding into chaos and by urging his vice president, Mike Pence, to capitalize on the confusion by single-handedly declaring him the winner of the race.

Even if the obstruction count were ultimately removed from Trump’s indictment, it would probably not be a fatal blow.

The indictment contains two other conspiracy counts that overlap almost entirely with the accusations in the obstruction counts. One of the conspiracy charges accuses Mr. Trump of committing fraud by using deceit to subvert the normal course of the election. The other charges him with plotting to deprive millions of Americans of the right to have votes properly counted.

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Prosecutions tied to the Capitol attack have ensnared more than 1,380 people.

More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.

About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.

Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.

More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.

Enrique Tarrio, the former Proud Boys leader, was sentenced to 22 years in prison, and Stewart Rhodes, who once led the Oath Keepers, was given an 18-year term.

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The prosecution of a police officer, Joseph Fischer, led to this hearing.

Mr. Fischer fell to the ground and, as some nearby officers helped him to his feet, he tried to engage with them, prosecutors say.

“I’m a cop too,” he said, “sometimes the country is worth more than your job.”

According to court papers, Mr. Fischer was concerned about his own job before making the trip to Washington. Investigators unearthed text messages he wrote to the chief of his department, saying that things could get “violent” on Jan. 6 and that the crowd should “storm the capital and drag all the democrates.”

He also warned the chief that he might need him to post his bail, the papers said.

Township officials suspended Mr. Fischer without pay on the day of his arrest in February 2021 and later fired him. But he has pushed back against the government’s description of behavior on Jan. 6.

His lawyers say that he and a companion were prepared to leave Washington that day after listening President Trump’s speech near the White House and turned around to head toward the Capitol only after hearing about the mounting protest there. The lawyers also claim that Mr. Fischer arrived at the Capitol grounds well after Congress had recessed the proceeding to certify the results of the 2020 election because of the attack.

“As Mr. Fischer walked toward the east side of the building, no barricades or fences impeded him,” the lawyers wrote in their brief to the Supreme Court.

Mr. Fischer has disputed the assertion by prosecutors that he charged the police line inside the Capitol, telling the court instead that he was pushed into the officers by “the weight of the crowd.”

He also characterized his interactions with the officers differently than prosecutors did, claiming that he merely talked with one of the officers and patted him on the shoulder.

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An accounting scandal spurred the law used to prosecute Jan. 6 defendants.

At least part of what the law meant to accomplish was to address a gap in the federal criminal code: it was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself. The Sarbanes-Oxley Act was meant to close that gap.

Lawyers for Joseph W. Fischer, charged under the law with obstructing an official proceeding by joining the mob that stormed the Capitol on Jan. 6, 2021, said his case had an Alice-in-Wonderland quality.

“The Through the Looking Glass moment here,” they wrote in a Supreme Court brief, “would be for those who wrote the Sarbanes-Oxley Act upon learning that they had created a new and breathtaking obstruction offense by endeavoring to close the narrow Enron-Arthur Anderson loophole.”

Indeed, in a different case on the scope of the statute, one of the sponsors of the law, Michael Oxley, filed a supporting brief saying prosecutors had interpreted it too broadly. The law meant to address “specific loopholes” that Arthur Andersen “had exploited when they shredded business documents and destroyed hard drives in anticipation of federal law-enforcement action,” wrote Mr. Oxley, a former Ohio representative who died in 2016.

In that case, concerning a separate provision of the law, Justice Ruth Bader Ginsburg said the law’s origins informed its meaning and spared the defendant.

“The Sarbanes-Oxley Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen, had systematically destroyed potentially incriminating documents,” she wrote for four of the justices in the majority. She added that the government had acknowledged that the provision “was intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrongdoing.”

Supreme Court Appears Skeptical of Using Obstruction Law to Charge Jan. 6 Rioters

Mr. Trump’s case did not come up at the argument, which was largely focused on trying to make sense of a statute, enacted to address white-collar crime, that all concerned agreed was not a model of clarity. But the justices’ questions also considered the gravity of the assault and whether prosecutors have been stretching the law to reach members of the mob responsible for the attack, which interrupted certification of Joseph R. Biden Jr.’s electoral victory.

Justice Clarence Thomas, who returned to the bench after an unexplained absence on Monday, asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?”

Justice Sonia Sotomayor took a different view of what happened on Jan. 6. “We’ve never had a situation before where there’s been a situation like this with people attempting to stop a proceeding violently,” she said.

The question for the justices was whether one of the laws used to prosecute some of the members of the mob that stormed the Capitol fits their conduct. The law, a provision of the Sarbanes-Oxley Act of 2002, contains a broad catchall provision that makes it a crime to corruptly obstruct, influence or impede any official proceeding.

But the provision is linked to a previous one aimed at altering evidence. Chief Justice John G. Roberts Jr. said the catchall provision must be read in context. Since the Jan. 6 defendants were not accused of altering evidence, he said, the catchall provision did not apply.

Other members of the court’s conservative majority said that reading the catchall provision in isolation would allow prosecutions of all sorts of protesters.

Two members of the court’s liberal wing responded that the catchall provision was broad by design and not tethered to the previous clause. Congress had meant, they said, to give prosecutors tools to address situations that the lawmakers could not anticipate.

The effect of a ruling rejecting the use of the provision to prosecute Jan. 6 defendants is not completely clear. Most such defendants have not been charged under the provision, which prosecutors have reserved for the most serious cases, and those who have been charged under it face other counts as well.

The defendant in Tuesday’s case, Joseph W. Fischer, for instance, faces six other charges.

Nor is it clear that a ruling in Mr. Fischer’s favor would erase any charges against Mr. Trump under the law. Jack Smith, the special counsel overseeing the federal election interference case against the former president, has said Mr. Trump’s conduct could be considered a crime under even a narrow reading of the 2002 law.

Whatever the larger consequences of the court’s ruling, expected by late June, several justices on Tuesday seemed troubled by the government’s interpretation of the law, saying it would allow many other kinds of prosecutions.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Neil M. Gorsuch asked. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

Justice Samuel A. Alito Jr. allowed that “what happened on Jan. 6 was very, very serious.” But he added that the prosecutors’ theory could reach, say, protests in the Supreme Court’s courtroom, which have occurred from time to time.

Elizabeth B. Prelogar, the U.S. solicitor general, began her argument by recalling the events of Jan. 6, saying that what some of the participants did that day amounted to obstruction covered by the law.

“On Jan. 6, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power,” she said. “Many crimes occurred that day, but in plain English, the fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress’s work in that official proceeding.”

Justice Amy Coney Barrett asked how to distinguish the attack on the Capitol from other actions that have disrupted official proceedings. “Tell me why I shouldn’t be concerned about the breadth of the government’s reading?” she asked.

The law at issue in the case was enacted in the wake of the collapse of the energy giant Enron.

Mr. Fischer, a former police officer, was charged with violating it and with six other crimes. Justice Brett M. Kavanaugh asked why the other charges were insufficient.

“Why aren’t those six counts good enough just from the Justice Department’s perspective given that they don’t have any of the hurdles?” he asked.

Ms. Prelogar responded that the other counts did not fully reflect Mr. Fischer’s culpability.

The law was prompted by accounting fraud and the destruction of documents, but the provision is written in broad terms.

At least part of what the law meant to accomplish was to address a gap in the federal criminal code: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself. The law sought to close that gap.

It did that in a two-part provision. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding.

The heart of the case is at the pivot from the first part to the second. The ordinary meaning of “otherwise,” prosecutors say, is “in a different manner.” That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence. The second part, they say, is broad catchall applying to all sorts of conduct.

Justice Elena Kagan said the catchall provision was a purposefully broad reaction to the Enron debacle.

“What Enron convinced them of was that there were gaps in these statutes,” she said of the lawmakers who enacted it.

She added: “But they didn’t know exactly what those gaps were. So they said, let’s have a backstop provision. And this is their backstop provision.”

Justice Sotomayor agreed. “They wanted to cover every base, and they didn’t do it in a logical way, but they managed to cover every base,” she said.

Jeffrey T. Green, a lawyer for Mr. Fischer, said the court should not interpret the 2002 law to create a crime of breathtaking scope that would allow prosecutors to charge political protesters and others with felonies carrying 20-year prison sentences.

He said that the first part of the provision must inform and limit the second one — to obstruction linked to the destruction of evidence. They would read “otherwise,” in other words, as “similarly.”

Chief Justice John G. Roberts Jr., citing a unanimous opinion he wrote last week, appeared to agree. “The general phrase,” he said, “is controlled and defined by reference to the terms that precede it,” he said. “The ‘otherwise’ phrase is more general, and the terms that precede it are ‘alters, destroys, mutilates, or conceals a record or document.’”

The case is one of several on the court’s docket this term affecting or involving Mr. Trump. In a separate case to be argued next week, the justices will consider Mr. Trump’s claim that he is totally immune from prosecution.

Mr. Fischer is accused of entering the Capitol around 3:24 p.m. on Jan. 6, with the counting of electoral ballots having been suspended after the initial assault.

He had told a superior in a text message, prosecutors said, that “it might get violent.” In another, he wrote that “they should storm the capital and drag all the democrates into the street and have a mob trial.”

Prosecutors say that videos showed Mr. Fischer yelling “Charge!” before pushing through the crowd, using a vulgar term to berate police officers and crashing into a line of them.

Mr. Fischer’s lawyers dispute some of this. But the question for the justices is legal, not factual: Does the 2002 law cover what Mr. Fischer is accused of?

As the end of the argument neared, Justice Ketanji Brown Jackson, a liberal, indicated that she had reservations about the government’s position, saying that the court should not lose sight of “the backdrop of a real-world context.”

“It was in the wake of Enron,” she said. “There was document destruction, and, you know, there was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally.”