Supreme Court justices seemed skeptical to – though not entirely dismissive of – the idea that federal prosecutors overreached when they charged hundreds of Jan. 6 rioters with obstructing the certification of the 2020 presidential election under a law that’s almost exclusively used to prosecute white-collar crimes.
While conservative and liberal justices alike voiced concerns about the breadth of the statute, none sounded hostile to the government’s position.
The case, Fischer v. U.S., involves a statute in the Sarbanes-Oxley Act, which Congress passed in 2002 in the wake of Enron’s accounting scandal. The law mandates certain practices in financial record keeping and reporting for corporations – and explicitly bars the destruction of or the concealing of business records. The law also makes it a crime to obstruct or impede an official proceeding, which is what federal prosecutors used to charge defendant Joseph Fischer, citing his attempt to halt Congress’ certification of the 2020 presidential results – along with more than 330 other defendants involved with the riot at the Capitol, including former President Donald Trump.
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A ruling by the justices that prosecutors stretched the obstruction law too far would have sweeping implications for hundreds of Jan. 6 defendants who have already pleaded guilty or been convicted of the offense and would likely prompt calls for new trials or lighter sentences.
For Trump, a ruling in Fischer’s favor could wipe out two of the four criminal counts brought against him by Justice Department special counsel Jack Smith in a federal indictment that accuses him of scheming to overturn the 2020 presidential election results.
Justice Department prosecutors argued that the actions of rioters prove that they intended to obstruct an official proceeding and that the law was specifically written to reflect Congress’ desire “to ensure that the criminal code covered the myriad and impossible-to-anticipate ways in which an official proceeding might be obstructed.”
But Jeffrey Green, attorney for Fischer, the former Pennsylvania police officer who’s appealing the charge, refutes that assertion, which he characterized as an overreach, and argues instead that the law’s scope would be “breathtaking” if taken out of context.
To that point, the conservative justices were quick to explore the idea that an expansive view of the obstruction statute in the law could be used as a “weapon” against political protest and First Amendment freedoms.
“People are going to worry about the kinds of activity they engage in, even if it’s peaceful,” Green said, attempting to appeal to their line of thinking.
Later, several of the conservative justices pressed Solicitor General Elizabeth Prelogar on the ramifications of a broad reading.
“Tell me why I shouldn’t be concerned about the breadth of the government’s reading,” asked Justice Amy Coney Barrett, inquiring also whether a defendant has to commit physical violence to fall under the statute – a nod to the Jan. 6 defendants who were charged with obstruction under the law but who did not commit violent acts.
“Do you think it’s plausible that Congress would have written the statute that broadly?” she asked.
Justice Neil Gorsuch gave a slate of scenarios – a sit-in that disrupts a trial, a heckler at the State of the Union address, someone who pulls the fire alarm to interrupt a vote – for Prelogar to consider. Justice Samuel Alito also asked about a scenario in which demonstrators interrupted lawyers who were arguing before the Supreme Court.
Prelogar defended the stance, at least in part, by underscoring that federal prosecutors only charged about 350 individuals with obstruction out of the roughly 1,350 indicted in connection with the Jan. 6 attack, thereby proving that it’s possible to use the state narrowly to target only those who commit obstruction “corruptly.”
But it was a line of questioning with which even the more liberal justices wrestled, including Justice Ketanji Brown-Jackson, who said she was “struggling” to understand how Congress could have possibly anticipated an obstruction like the Jan. 6 attack on the Capitol when writing the legislation.
Prelogar acknowledged that the immediate impetus for writing the legislation was to close a glaring loophole that allowed the Enron scandal to occur and that destruction of evidence was specifically top of mind. But, she added, Congress also set out to craft the legislation in a way to ensure things would not be able to “slip through the cracks” in the future.
At the same time, the justices professed reservations with Green’s argument that the law cannot be used to charge Fischer and others. Even Alito, the high court’s most conservative justice, expressed skepticism of Green’s reading of the law, which criminalizes attempts to “alter, destroy, mutilate or conceal a record, document or other object.” Alito pointed to a single word, “otherwise,” that connects two sections of the law, which also contains a broader provision for conduct that “otherwise obstructs, influences or impedes any official proceeding.” That issue was at the heart of his questions to Green, who maintained that the statute was not applicable to his client.
“You may be biting off more than you can chew by suggesting, if you are indeed suggesting, that the ‘otherwise’ clause can only be read the you read it,” Alito said.
“One might say it can certainly be read the way the government reads it,” he added, and that “might even be the more straightforward reading.”
The justices are expected to announce their decision in June.
