How Should the Supreme Court Read 18 U.S.C. § 1512(c)(2)?

The U.S. Supreme Court heard arguments today in the case of Joseph Fischer, who is challenging a criminal prosecution for being in the Capitol on January 6, 2021. According to Seth Lucas at The Heritage Foundation, it is possible that the results from the Fischer case will “affect the pending federal indictment against former President Donald Trump in U.S. District Court for the District of Columbia.” Lucas reported the following: 

Although the case that the court heard Tuesday is about what happened on Jan. 6, the court isn’t going to decide whether Jan. 6 was a peaceful protest or an insurrection. Instead, the court agreed to hear Fischer’s case to decide a different question; namely, whether Fischer can be prosecuted under a federal law that forbids corruptly obstructing an official proceeding.

Rules about how to interpret a statute – think textualism – will therefore play a far greater role in the court’s decision than the justices’ views on whether an insurrection occurred.

In a discussion about 18 U.S.C. § 1512(c)(2), one of the laws that Fischer is charged with violating – “whoever corruptly … or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” The charge was dismissed by the U.S. District Court, but it was reinstated by a “divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. Fischer asked the Supreme Court to take his case and to rule on the meaning of Section 1512(c). His attorney, Jeffrey Green with the Northwestern Supreme Court Practicum, “urged the court to read Section 1512(c)(2) narrowly.” He then explained the reason for his request.

Congress passed Section 1512(c) … in the wake of the Enron financial scandal to prohibit tampering with evidence to be used in an official proceeding. Congress later added subsection (c)(2) to cover the gaps in the original statute and ban other forms of impairment.

By using “otherwise,” he argued, subsection (c)(2) was limited to similar kinds of obstructions as those that Section 1512(c)(1) – which covers tampering with documents or other objects with the intent to impair their integrity or availability for use in an official proceeding – sought to prohibit.

The solicitor general countered that subsection (c)(2) defined a different crime than subsection (c)(1), arguing that Section 1512 covers both tampering with evidence and obstructing an official proceeding. Under the government’s interpretation, Section 1512(c)(2) covers not only destroying documents that might be used in an investigation, but also attempting to impede Congress’ certification of election results.

With the above information as a foundation, the justices sought to “understand the relationship between the two subsections.”

·         Justice Sonia Sotomayor wondered “why the statute was not like a movie theater sign that read, “[Y]ou will be kicked out of the theater if you photograph or record the actions or otherwise disrupt the performance.” She noted that yelling was different from recording a performance, but both acts would result in being kicked out of the theater.

·         Justice Amy Coney Barrett wondered if the government could use the statute to prove that “Fischer did try to obstruct the delivery of Electoral College certificates.” Green said no because there is a difference between changing or altering a document and trying to stop a vote count.

·         Justice Samuel Alito observed that the statute could be read broadly or narrowly, but a broad reading might be “more straightforward.”

The justices asked Green lots of questions, but “they appeared more skeptical of the government’s broad reading of Section 1512(c)(2). There were enough justices who seemed willing to look at Section 1512(c)(2) narrowly. However, Lucas emphasized that even a decisive win would not mean freedom for Fischer and other Jan. 6 defendants. They still have other charges to face. Lucas noted that a win for Fischer “could affect special counsel Jack Smith’s prosecution of Trump.” He reasoned further:

Smith has charged Trump with obstructing and impeding the electoral vote certification in violation of Section 1512(c)(2). A ruling that Section 1512(c)(2) is limited to obstructions of investigations, for instance, could make Smith’s efforts to convict the former president under that statute much harder, if not impossible.