How Will Fischer Case Affect Trump?

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.