The topic of discussion for this Constitution Monday concerns a case that affects “the prosecutions of around 350 individuals” who have been “charged in connection with the events” that took place at the Capitol on January 6, 2021. In addition, the decision could also “affect two of the four charges brought by special counsel Jack Smith that are pending against former President Donald Trump in federal court in Washington, D.C.” John G. Malcolm and Seth Lucas wrote the following about the decision.
The case arose from the prosecution of
Joseph Fischer, who attended the “Stop the Steal” rally on the Ellipse on Jan.
6 and subsequently entered the Capitol with hundreds of others. Fischer claims
that he was inside the Capitol for less than four minutes and that he was
pushed into the police line by the surging crowd, but prosecutors contend that
Fischer was among those who urged the crowd to “charge” and was part of a mob
that pushed the police.
A grand jury returned a seven-count
indictment against Fischer, charging him with assaulting police officers,
entering and remaining in a restricted building, and engaging in disorderly and
disruptive conduct within the Capitol.
Although Fischer did not contest the
sufficiency of six of the charges returned against him, he filed a motion to
dismiss the charge that he violated 18 U.S.C.
§ 1512(c)(2) by corruptly obstructing, influencing, or impeding an
official proceeding – in this case, Congress’s certification of the Electoral
College vote. Fischer argued that this code section only applies to evidence
tampering designed to impair an inquiry or investigation.
This is significant because,
as previously stated, approximately 350 other Jan. 6 defendants have been
charged with violating this provision, and Count Three of the four-count
indictment against Trump alleges a violation of this code section.
At its core, Fischer v.
United States is about the meaning of a law passed in the wake of the Enron
accounting scandal in the early 2000s – not whether the events of Jan. 6 were a
riot or insurrection. When Enron discovered that its financial practices were
being investigated by federal regulators, executives at the company’s auditor,
Arthur Andersen, ordered the destruction of countless documents. They even brought
in multiple shredders so they could destroy around 7,000 pounds of documents
per hour for two weeks straight.
At the time, federal law
forbade directing another person to destroy evidence of financial wrongdoing.
But it didn’t ban a person from acting alone to destroy evidence. Congress
subsequently enacted 18 U.S.C. § 1512(c), violations of which can result
in a sentence of up to 20 years’ imprisonment, as part of the Sarbanes-Oxley
Act to close that loophole.
Section 1512(c) contains two
clauses. The first — § 1512(c)(1) — imposes criminal penalties on anyone
who corruptly “alters, destroys, mutilates, or conceals a record, document, or
other object” with an intent “to impair the object’s integrity or availability
for use in an official proceeding.” The second —§ 1512(c)(2) — does the
same for anyone who corruptly “otherwise obstructs, influences, or impedes any
official proceeding” or attempts to do so.
The
Supreme Court voted 6-3 in the decision. Chief Justice John Roberts wrote the
majority opinion and was joined by Justices Clarence Thomas, Samuel Alito, Neil
Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. However, the Biden justice
department declared that it would seek more prison time for convictions under
other statutes if they lost at the Supreme Court. The decision affects cases
against Trump, as the authors explain.
Significantly, Fischer’s win Friday at the
Supreme Court will likely impact Smith’s D.C. prosecution of Trump. Smith
charged Trump with obstructing the electoral vote certification in violation of
Section 1512(c)(2), as well as engaging in a conspiracy to obstruct an official
proceeding in violation of Section 1512(k). Smith will now have to show that Trump
impaired, attempted to impair, or conspired with others to impair the
availability or integrity of documentary or testimonial evidence used in an
official proceeding.
Regardless of whether he can make that
showing, which seems doubtful, additional court proceedings over whether Smith
can even continue prosecuting Trump under these code sections will likely
ensure that this case against Trump will not reach a trial before the election.
And, of course, we will still have to assess the impact of the Supreme Court’s
decision in the presidential immunity case, which the court will likely issue
on Monday.