Jan. 6 obstruction case at Supreme Court could help Trump and other defendants
WASHINGTON — At first blush, the case that the Supreme Court will hear Tuesday seems technical, requiring the justices to parse a decades-old statute mainly concerned with the destruction of business records.
But the case has the potential to knock out half of the federal charges against former President Donald Trump for plotting to subvert the 2020 election, entangle hundreds of Jan. 6 prosecutions and help adjudicate the very meaning of the attack on the Capitol.
The immediate question for the justices is whether a federal law aimed primarily at white-collar crime, the Sarbanes-Oxley Act of 2002, can be used to prosecute members of the mob who stormed the Capitol on Jan. 6, 2021, including the defendant in the case, Joseph Fischer, a former Pennsylvania police officer. More than 300 people have been prosecuted under the law, which makes it a crime to obstruct an official proceeding.
The immediate purpose of the law, enacted in the wake of the collapse of Enron, fits uneasily with the prosecutions arising from the violent riot that forced a halt to the constitutionally required congressional count of electoral ballots. But its language is broad, and prosecutors say its plain terms cover Fischer’s conduct.
Trump is not involved in the case, but he could benefit from a ruling in Fischer’s favor. If Justices rule that what Fischer is accused of having done is not covered by the 2002 law, Trump will doubtless argue that the law does not apply to his actions either.
Even if he succeeds, though, he will still face two other charges not at issue in Fischer’s appeal: conspiracy to defraud the United States and conspiracy to interfere with constitutional rights.
In a separate case to be argued April 25, the court will hear arguments over whether Trump is immune from prosecution on any of the charges against him.
The question before the justices in Fischer’s case is legal, not factual. They must decide what the statute means, not what Fischer did. That will be a question for the jury, if the charge stands.
Still, the briefs filed in the case and court records set out contrasting depictions of Fischer’s conduct.
According to the government, Fischer sent text messages to his boss, the police chief of North Cornwall Twp., Pennsylvania, about his plans for that Jan. 6. “It might get violent,” he said in one. In another, he wrote that “they should storm the capital and drag all the democrates into the street and have a mob trial.”
Prosecutors say videos showed Fischer yelling “Charge!” before pushing through the crowd and entering the Capitol around 3:24 p.m. Jan. 6. He used a vulgar term to berate police officers, prosecutors said, and crashed into a line of them. He was, the government’s brief said, “forcibly removed about four minutes after entering.”
Fischer’s lawyers, by contrast, stressed that he had attended the rally on the Ellipse but was not part of the initial assault.
“When the crowd breached the Capitol, Mr. Fischer was in Maryland, not Washington, D.C.,” his lawyers wrote in their brief. “He returned after Congress had recessed.”
“His earlier Facebook posts about violence, when read in context, refer to his belief that antifa planned to disrupt the rally,” they continued. He had yelled “Charge!” in “obvious jest,” they added.
Video evidence shows, his lawyers wrote, that Fischer “did not ‘run’ toward the police line or crash into it; he was knocked to the ground (as was an officer) by the crowd surge.”
“Finally,” they added, “he was not ‘forcibly removed’; he walked out on his own.”
Those starkly different accounts are echoed on a larger scale in supporting briefs that focus on the nature and meaning of Jan. 6.
Republican lawmakers allied with Trump, including Sen. Tom Cotton, R-Ark., and Rep. Jim Jordan, R-Ohio, said in one brief that “the Department of Justice and D.C. juries have readily attributed immorality to the genuine belief of many Jan. 6 defendants that there was fraud during the 2020 presidential election.”
Protests are part of the fabric of political life, they wrote, adding that the prosecutors’ interpretation of the statute would have applied to a peaceful rally led by the Rev. Martin Luther King Jr.
Critics of Trump’s — including J. Michael Luttig, a conservative former appeals court judge, and John Danforth, a former Republican senator from Missouri — countered that the comparisons pressed by Cotton and Jordan were profoundly misplaced.
“There is simply no historical comparison between the consequences of criminal acts in opposition to the election of a new president — as illustrated by both our Civil War and the Jan. 6, 2021, invasion — and the ‘what about’ examples discussed in the Cotton-Jordan brief,” they wrote in a brief. “Indeed, no one was physically hurt” as part of “any of those examples.”