Jan. 6 obstruction case could help Trump, many others
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 the Supreme Court rules 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 justices let the charge stand.
Still, the briefs filed in the case and court records set out contrasting depictions of Fischer's conduct that seem emblematic of a political discourse grounded in alternate realities.
According to the government, Fischer sent text messages to his boss, the police chief of North Cornwall Township, 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.” (“Recessed” is not the first word that comes to mind to describe lawmakers fleeing from a violent mob.)
“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, reflecting efforts by Trump and his supporters to rewrite history and reframe the attack as a legitimate political protest.
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.
“Advocacy groups throughout history have organized trips to Washington timed to congressional or executive consideration of favored items,” the brief said, going on to quote from a magazine article. “Most famously, the 1963 civil rights `March on Washington' `was designed to force President Kennedy to support the Civil Rights Act' then pending in Congress.”
The brief discussed
other protests, too, including the disruption of the Supreme Court confirmation hearing of Justice Brett Kavanaugh, praising the Trump administration's restraint.
The Biden administration, in its brief, drew several distinctions. The law, it said, “covers acts that hinder a proceeding — not acts, like lobbying or peaceful protest, that are not readily characterized as rising to the level of obstruction or that independently enjoy protection under the First Amendment.”
The brief added that the law only applied to conduct directed at a specific proceeding and required proof that the defendant had acted corruptly.
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.”
“And none of those examples,” they added, “threatened something remotely as fundamental to our constitutional system as the peaceful transfer of executive power.”
Richard Bernstein, a lawyer for Luttig and other former officials who signed the supporting brief, said that allowing cases under the obstruction law to proceed was crucial.
“These obstruction prosecutions deter possible future invasions of Congress aimed at preventing the peaceful transfer of power,” he said.
Still, the legal question in the case is relatively narrow: Does the 2002 law cover what prosecutors say Fischer did?
The Supreme Court has said that the purpose of the law was “to safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation.”
At least in part, it was meant to address a gap in the federal criminal code at the time: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself.
The law sought to close the gap in a two-part provision. The first part focused on evidence, saying that anyone who corruptly “alters, destroys, mutilates or conceals a record, document or other object” to affect an official proceeding is guilty of a felony.