Before the U.S. Supreme Court takes up former President Donald Trump’s claim of immunity from criminal prosecution in the January 6, 2021, attack on the U.S. Capitol, the justices will hear another Jan. 6 case that may affect not just Trump, but 300 others involved in that violent riot, and the future power of federal prosecutors in similar situations.
Fischer v. United States, to be argued on Tuesday, is not a constitutional challenge. Instead, it is a challenge to how prosecutors are interpreting and using a federal criminal law. For the justices, it is a question of statutory interpretation– the meat and potatoes work of the Supreme Court.
The federal law is 18 U.S.C. § 1512(c)(2), It is part of a larger statute, known as the Sarbanes-Oxley Act which was enacted by Congress in 2002 in response to the Enron accounting fraud.
Section 1512(c)(2)—the heart of the dispute before the justices—makes it a crime to “corruptly…otherwise obstruct, influence or impede any official proceeding, or attempt to do so.” That section follows on the heels of (c)(1), which applies to a defendant who corruptly “alters, destroys, mutilates or conceals a record, document or other object” to affect an official proceeding.
Joseph Fischer was charged with obstruction of an official proceeding under section 1512(c)(2), among other charges, for his actions on Jan. 6. Donald Trump and about 300 others also face that charge. The “official proceeding” was the joint meeting of Congress to count the certified votes of the Electoral College in the 2020 presidential election.
In the Supreme Court, Fischer argues that Section 1512’s text, structure, context, title, and legislative history demonstrate that Congress’ goal was to protect the integrity of investigations and evidence. He notes that before the Jan. 6 prosecutions, no court had applied Section 1512 (c)(2) to conduct that did not affect the availability or integrity of evidence. “Nor had a defendant ever been convicted of an obstruction-of-Congress offense outside the context of a legislative inquiry or investigation,” he argues.
Since he was not involved in destroying evidence or records or in a legislative inquiry or investigation, Section 1512 (c)(2) does not cover his actions on Jan. 6, he contends.
The government, however, rejects Fischer’s attempt to narrow the scope of Section 1512 (c)(2) to evidence. It argues that the section operates as a “catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding.” Like Fischer, the government also relies on text, context, structure and history to make its case for a broader reach of the contested provision.
“And Congress further enacted 18 U.S.C. 1512(c)(2) to address the larger problem the Enron scandal brought to light—namely, the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.”
During Tuesday’s arguments, there likely will be arguments about the meaning of certain words in the law’s text, such as “corruptly” and “otherwise.” Those words and the relationship between (c)(2) and (c)(1) are the stuff of statutory interpretation—not sexy, but important.
The Fischer case comes to the court after recent years in which the justices have cast skeptical eyes on what some believed were prosecutors pushing the envelope in their use of certain federal criminal laws, especially mail fraud and so-called honest services. They have reined in the use of those laws in several high-profile cases.
The case is also in the Supreme Court before there has been a trial of the charges against Fischer or a final judgment– an unusual posture for a criminal case. But clearly the Court wanted to hear the case. If convicted, Fischer could be sentenced to a fine and/or up to 20 years in prison. And while Fischer’s actions on Jan. 6 are not the subject of his high court case, he and the government present the justices with dramatically different versions of what he did that day.
Section 1512 (c)(2) is not the only weapon in the prosecution’s toolbox in its effort to hold the Jan. 6 rioters accountable, but it is a serious one and one that may reveal more of how the Supreme Court itself views the actions on that historic and sad day.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
