Divided U.S. Supreme Court wrestles with case of Pennsylvania man who joined Jan. 6 mob • Alabama Reflector

Photo of Joseph W. Fischer of Pennsylvania at the “Stop the Steal” rally in Washington, D.C. on Jan. 6, 2021. The U.S. Supreme Court on April 16, 2024, heard arguments in a case centering on Fischer’s actions that day. (U.S. District Court documents)

WASHINGTON — The U.S. Supreme Court heard arguments Tuesday in a Jan. 6, 2021, case that could potentially upend convictions for a mass of Capitol riot defendants and slash some election interference charges against former President Donald Trump.

The case, Fischer v. United States, centers on whether former Pennsylvania police officer and Jan. 6 defendant Joseph W. Fischer violated an obstruction statute when he joined the mob that entered the U.S. Capitol and prevented Congress from certifying the 2020 presidential election results for several hours.

The justices, appearing split and at times opaque in their individual stances, questioned Fischer’s attorney Jeffrey Green and U.S. Solicitor General Elizabeth Prelogar for more than 90 minutes, though they grilled Prelogar for twice as long as Green.

GET THE MORNING HEADLINES.

“We thought it went about as well as it could, but we still think it will be a very close case,” Green told States Newsroom outside the court following arguments.

The provision in question stems from an early 2000s law, the Sarbanes-Oxley Act, that passed after the Enron accounting scandal and targets “whoever corruptly … otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

In this particular case, the proceeding is referring to the joint session of Congress to certify the 2020 presidential election results.

The government maintains that Fischer had an intent to disrupt the proceeding, and points to his text messages in the preceding days that discuss stopping the democratic process and committing physical harm of Congress members.

The Justice Department also maintains video evidence shows Fischer assaulting a police officer and encouraging rioters to “charge” into the Capitol.

Fischer’s team argues that he wasn’t present while Congress was meeting because he arrived later in the day, and that he only had a “four-minute foray to about 20 feet inside the Capitol.”

A lower trial court last year granted Fischer’s motion to dismiss the felony charge against him after he argued the clause is inseparable from preceding language that refers only to tampering with physical evidence.

The U.S. Circuit of Appeals for the D.C. Circuit reversed the ruling, though the three-judge panel split. Judge Florence Y. Pan — who also sat on the panel in Trump’s presidential immunity appeal — wrote in the lead opinion that the statute is “unambiguous” in its meaning of what constitutes obstructing an official proceeding.

Roughly 350 Jan. 6 defendants have been charged under the same statute, and about 50 have been sentenced to an average 26 months in prison, according to Prelogar.

The clause in the 2002 Sarbanes-Oxley Act is also at the core of two of the four election subversion charges brought against Trump by U.S. Department of Justice special counsel Jack Smith.

Whether those charges stand now hangs on whether the justices agree that the law applies to Fischer’s actions at the U.S Capitol.

If the justices rule in Fischer’s favor, Trump would almost certainly challenge the government’s case, further delaying an already drawn out legal process as the 2024 presidential election inches closer.

Additionally, numerous Jan. 6 defendants convicted of the charge, among the most serious levied against them, could challenge and potentially re-open their cases.

The Sarbanes-Oxley clause at the center of Supreme Court oral arguments Tuesday is a two-part provision over which the parties disagree.

The provision, Section 1512(c), carries a fine and not more than 20 years in prison for “(w)hoever corruptly:

“(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

“(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

Fischer contends the government’s application of the law in his Jan. 6 case is “unprecedented” and creates a “breathtaking” scope for the provision.

He maintains that clause (2) has a “residual” link to clause (1) and therefore both only pertain to physical evidence in a congressional investigation or inquiry.

Among the government’s arguments, the U.S. homes in on the word “otherwise” to prove the second clause is a “catchall” phrase for other types of obstruction, not only manipulation of physical objects.

When challenging Fischer’s attorney Tuesday, the justices pressed whether Congress meant the two subsections to apply to different types of obstruction.

Justice Elena Kagan asked “What is the commonality that (c)(2) is drawing from (c)(1)?”

The text, she said, “tells you what the commonality is, the commonality is that the things that fall into (c)(2) also have to obstruct, influence or impede but what (c)(2) does not say — really does not say — is everything in (c)(2) also has to spoil evidence.”

Green’s response was that the law’s drafters could have “easily” decided that they didn’t need to specifically mention physical evidence in the second clause. They could have said “we’re not going to repeat what we said there, but we’re going to use a connector like ‘otherwise’ to demonstrate that we’re talking about similar conduct,” Green proposed.

While the justices questioned Green for just over 30 minutes, they devoted an hour to Prelogar.

Justice Clarence Thomas began questioning the U.S. solicitor general with an inquiry about how the statute has been applied in the past.

The government’s position since the dawn of the provision has been that it covers “myriad forms” of obstructing an official proceeding, Prelogar said.

“Have you enforced it in that manner?” Thomas asked.

A “variety” of prosecutions that weren’t related to evidence tampering have used the statute, Prelogar answered.

“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 … I’m not aware of that circumstance ever happening prior to January 6,” Prelogar said.

A “flavor” of when the Justice Department has used it in other circumstances includes things like tipping off someone about the existence of a grand jury investigation, or “there was another case where someone tipped off about the identity of an undercover law enforcement officer,” Prelogar told the justices.

“What role does (c)(1) play in your analysis?” Thomas asked.

The 1512(c) provision “split(s) up the world of obstructive conduct” into two categories, Prelogar said.

“(c)(1) covers everything it enumerates; it’s the acts of altering, concealing, destroying records, documents or other objects, and then (c)(2) would only pick up conduct that obstructs an official proceeding in a different way,” Prelogar said.

“Congress was taking this universe and dividing it up into the two separate offenses.”

Justice Ketanji Brown Jackson asked Prelogar how she can be sure that Congress — in the wake of evidence tampering that occurred during the Enron accounting scandal — “was thinking about obstruction more generally” when it authored the provision.

“So can you just give us a little bit more as to why we shouldn’t think of this as being a narrower set of circumstances to which this text relates?” Jackson asked.

Congress added Section 1512 to close any gaps in the law exposed by the Enron misconduct, Prelogar said.

Congress “went further” and added (c)(2) to be safe, Prelogar said.

“The broader lesson Congress took away from Enron is that when you set out in advance to try to enumerate all the various ways that official proceedings can be obstructed, things will slip through the cracks,” Prelogar said.

Several justices also pressed Prelogar on another of Fischer’s arguments: If the court upheld the obstruction charge against Fischer, what stops the government from criminalizing protests or other activities?

In other words, if (c)(2) involves all other types of obstruction beyond evidence tampering, what are the guardrails against overuse?

“What does that mean for the breadth of this statute?” asked Justice Neil Gorsuch.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify, and for 20 years in federal prison?” Gorsuch continued, specifically referring to when U.S. Rep. Jamaal Bowman of New York pulled a fire alarm in September minutes before a vote to prevent a government shutdown. The congressman pleaded guilty to a misdemeanor the following month for falsely pulling a fire alarm.

Prelogar said “built-in limitations” in the law would prevent prosecution for “some minor disruption” or “minimal outburst.” Additionally, the prosecution would have to prove that the party “acted corruptly.”

The obstruction charge is not the only count brought against Fischer after his participation in the Jan. 6 riot.

The indictment also included charges of civil disorder, assaulting, resisting, or impeding certain officers, entering and remaining in a restricted building, disorderly conduct, and parading, demonstrating, or picketing in a Capitol building.

Justice Brett Kavanaugh asked “Why aren’t those six counts good enough?”

They don’t carry the “hurdles” of the obstruction charge, he added.

Those counts don’t “fully reflect” Fischer’s behavior on Jan. 6, Prelogar responded.

“One of the root problems with the petitioner’s conduct is that he knew about that proceeding. He had said in advance of January 6 that he was prepared to storm the Capitol, prepared to use violence. He wanted to intimidate Congress. He said ‘they can’t vote if they can’t breathe,’” Prelogar said, referring to one of Fischer’s text messages prior to the joint session of Congress.

“And then he went to the Capitol on January 6, with that intent in mind and took action, including assaulting a law enforcement officer,” she said. “That did impede the ability of the officers to regain control of the Capitol and let Congress finish its work in that session.”

A ruling is expected in late June or early July.

YOU MAKE OUR WORK POSSIBLE.

by Ashley Murray, Alabama Reflector April 16, 2024

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our website. AP and Getty images may not be republished. Please see our republishing guidelines for use of any other photos and graphics.

Ashley Murray covers the nation’s capital as a senior reporter for States Newsroom, the nation’s largest state-focused nonprofit news organization. Her coverage areas include domestic policy and appropriations.

Alabama Reflector is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.