High court to hear Jan. 6 rioter’s case
If obstruction charge is overturned, it could help Trump in his federal trial
WASHINGTON – Joseph Fischer was driving home to central Pennsylvania after attending then-president Donald Trump’s “Stop the Steal” rally on Jan. 6, 2021, when he heard about the crowd outside the Capitol and turned around.
Standing outside the East Rotunda doors at 3:24 p.m., Fischer, a police officer, turned on his phone’s video recorder and yelled, “Charge!”
He was among hundreds of people − including Trump − charged with obstruction for interrupting Congress as it certified President Joe Biden’s victory. Fischer is now asking the Supreme Court to overturn the obstruction charge.
The high court is set to hear arguments April 16. The case could affect one-fourth of the Jan. 6 defendants – and have big implications for Trump’s federal election interference case: Two of special prosecutor Jack Smith’s four charges rely on the challenged statute.
Fischer entered the Capitol wearing black-framed glasses and a navy blue sweater beneath a red jacket. Prosecutors say he ran toward police officers while yelling profanity and crashed into the line before falling on the waxed floor. Police pepper-sprayed Fischer and forced him out of the building.
Fischer says he entered the Capitol after Congress had recessed, wasn’t violent, spent less than four minutes inside and was knocked to the ground as the crowd pushed him toward police.
The charges against Fischer include civil disorder, impeding police officers, entering and remaining in a restricted building, disorderly conduct and demonstrating in a Capitol building. The disputed obstruction count is a felony carrying a maximum 20-year sentence.
The court records include various texts and postings by Fischer.
“Take democratic congress to the gallows,” he texted. “Can’t vote if they can’t breathe..lol.”
“We pushed police back about 25 feet, got pepper-balled ... but entry into the Capitol was needed to send a message that we the people hold the real power,” he wrote on Facebook.
“It might get violent,” Fischer wrote in a series of texts about his plans for the day. He warned his then-boss, Police Chief John Leahy, he might need him to “post bail.”
Instead, the chief accompanied the federal authorities who arrested Fischer in February 2021.
On that day, the town Board of Supervisors suspended Fischer without pay, then fired him in June 2021. The board suspended Leahy with pay after Fischer’s arrest and accepted his resignation in March 2021.
The justices are being asked to interpret an obstruction law from after the Enron scandal in 2002. The statute punishes anyone who “corruptly” destroys or conceals a government record, or who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
It was part of an overhaul of the financial system after Enron auditor Arthur Andersen “systematically destroyed potentially incriminating documents,” according to court records.
Fischer’s lawyers say the statute aimed to punish only the destruction of documents. They contend no defendant had been convicted of obstructing Congress before Jan. 6 outside of a legislative inquiry or investigation. “Put bluntly,” the lawyers argued, the rest of the statute’s lineage, dating to 1831, revealed it was always used for documents.
Government prosecutors led by Solicitor General Elizabeth Prelogar respond that the obstruction law is a “catchall” that should cover Fischer’s conduct “because he allegedly joined a violent riot with the purpose of disrupting a joint session of Congress convened to certify the election results.”
They say Congress expanded the law in 2002 precisely because of “the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction,” Prelogar wrote.
Indeed, during the legislative debate, then-sen. Joe Biden, D-del., said the provision “strengthens an existing federal offense that is often used to prosecute document shredding and other forms of obstruction of justice.”
Current and former Republican lawmakers have weighed in for both the prosecution and the defense.
Former Missouri Sen. John Danforth led a group of two dozen former lawmakers, governors, judges and administration officials urging the justices not to overturn or rewrite the law. “If America ever allowed the powerful impulse of might makes right to prevail over the peaceful transfer of power,” they wrote, “we would have failed to keep our Republic.”
Sen. Tom Cotton, R-ark., led two other senators and 20 House members arguing that the statute’s breadth allows for the prosecution of political rivals. “It criminalizes political conduct and grants the Department of Justice nearly unfettered discretion to prosecute Americans based on the perceived morality of their political beliefs,” they wrote.
The lower courts have come down on both sides. U.S. District Judge Carl Nichols dismissed the obstruction count by ruling Fischer hadn’t destroyed documents.
A D.C. Circuit Court of Appeals panel voted 2-1 to overturn the decision by ruling the law applied “to all forms of corrupt obstruction of an official proceeding.” Appeals Judge Justin Walker said the statute would have “breathtaking” scope if not for the requirement that a defendant act “corruptly.”
About 330 of the first 1,265 defendants in the Jan. 6 attack were charged under the law, according to the Justice Department.
Some judges have already begun ordering the early release of Jan. 6 prisoners while they appeal the same charge as Fischer, rather than risk having them spend more time than warranted for misdemeanor convictions. These cases include:
h U.S. District Judge Amit Mehta in January ordered the immediate release of Thomas Adams Jr., who entered the Senate chamber, after he served about five months of a 14-month sentence.
h U.S. District Judge Trevor Mcfadden last month ordered that Kevin Seefried be released May 31, after a year in prison. Seefried was sentenced to three years as one of the first rioters to break into the Capitol. He carried a Confederate battle flag he used to strike at a Black officer, Mcfadden wrote.