Justices leery of obstruction charge
Conservatives question if it applies in Jan. 6 case
WASHINGTON – Conservative U.S. Supreme Court justices on Tuesday signaled skepticism toward an obstruction charge brought by the Justice Department against a Pennsylvania man in the 2021 Capitol attack – a case with possible implications for the prosecution of Donald Trump for trying to overturn his 2020 election loss.
The justices heard arguments in Joseph Fischer’s appeal of a lower court’s ruling rejecting his attempt to escape a federal charge of corruptly obstructing an official proceeding – the congressional certification of President Joe Biden’s victory over Trump that the rioters sought to prevent on Jan. 6, 2021.
Trump, the presumptive Republican presidential candidate, faces the same charge in a criminal case brought against him last year by special counsel Jack Smith.
The Supreme Court has a 6-3 conservative majority.
Some of the conservative justices posed tough questions to Solicitor General Elizabeth Prelogar about the Justice Department’s application of an obstruction provision in the 2002 Sarbanes-Oxley Act – passed after the accounting fraud scandal at now-defunct energy company Enron – to Fischer’s case.
“We have enforced it in a variety of prosecutions that don’t focus on evidence tampering. Now I can’t give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring,” Prelogar told conservative Justice Clarence Thomas.
Prelogar added that she was not aware of any such circumstances ever happening prior to the Capitol attack.
Jeffrey Green, a lawyer for Fischer, argued for a narrow application of the obstruction charge – only against defendants who tampered with evidence. Green said that the Justice Department had committed prosecutorial overreach by misapplying a Sarbanes-Oxley obstruction provision to Fischer’s case.
“The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxleybased, Enron-driven evidence-tampering statute is not one of them,” Green told the justices.
Conservative Justice Neil Gorsuch expressed concern over how a broad interpretation of the law could cover numerous other actions including nonviolent protests, emphasizing the maximum penalty of 20 years in prison.
“Would a sit-in that disrupts a trial, or access to a federal courthouse, qualify? Would a heckler in today’s audience (at the Supreme Court) qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify?” Gorsuch asked Prelogar.
The liberal justices challenged Green’s narrow interpretation of the law.
Justice Sonia Sotomayor compared it to a sign posted at a theater that says, “‘You will be kicked out of the theater if you photograph or record the actors, or otherwise disrupt the performance.’ ”
“If you start yelling,” Sotomayor said, “I think no one would question you could be kicked out under this policy, even though yelling has nothing to do with photographing or recording.”
Justice Elena Kagan told Green that there were “multiple ways” in which the lawmakers who drafted the relevant language in the statute could have made it clear that they intended the law to operate “only in the sphere of evidence spoliation. But it doesn’t do that.”
“Certainly the statute could be written more precisely,” Green said. “Any statute could be written more precisely.”
“It’s not a question of ‘precisely,’ ” Kagan told Green.
Fischer is accused of charging at police officers guarding a Capitol entrance during the attack, according to prosecutors. Fischer, at the time a member of the North Cornwall Township police in Pennsylvania, got inside and pressed up against an officer’s riot shield as police attempted to clear rioters. He remained in the building for four minutes before police pushed him out.
‘A very different act’
“Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document,” Green said.
The obstruction charge carries a sentence of up to 20 years in prison, though Jan. 6 defendants convicted of obstruction have received far lesser sentences. Federal prosecutors have brought obstruction charges against about 350 of the roughly 1,400 people charged in the Capitol attack.
The legal issue in the case involves how two parts of the obstruction law fit together. The first provision prohibits obstructing an official proceeding by destroying “a record, document or other object.” The second part makes it a crime to “otherwise obstruct” an official proceeding.
Prelogar argued that Congress included the second provision to give the obstruction law a broad sweep. It ensures that unanticipated methods of corruptly obstructing an official proceeding – like occupying the Capitol building and forcing the suspension of Congress’ joint session certifying the election results – are prohibited, according to Prelogar.
A Supreme Court ruling dismissing the charge against Fischer could make it more complicated – but not impossible – to make Trump’s obstruction-related charges stick, according to experts.
In August 2023, Smith brought four federal criminal counts against Trump: conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote.
Fischer is awaiting trial on six other criminal counts, including assaulting or impeding officers and civil disorder, while he challenges his obstruction charge at the Supreme Court.
U.S. District Judge Carl Nichols, a Trump appointee, dismissed Fischer’s obstruction charge, ruling that it applies only to defendants who tampered with evidence. The U.S. Court of Appeals for the District of Columbia Circuit reversed that decision.
The Supreme Court will hear arguments on April 25 in Trump’s assertion of presidential immunity from prosecution in the election subversion case brought against him by Smith.