Supreme Court Appears Skeptical of Using Obstruction Law to Charge Jan. 6 Rioters


The Supreme Court seemed wary on Tuesday of letting prosecutors use a federal obstruction law to charge hundreds of rioters involved in the Capitol attack on Jan. 6, 2021.

A decision rejecting the government’s interpretation of the law could not only disrupt those prosecutions but also eliminate two of the federal charges against former President Donald J. Trump in the case accusing him of plotting to subvert the 2020 election.

Mr. Trump’s case did not come up at the argument, which was largely focused on trying to make sense of a statute that all concerned agreed was not a model of clarity. But the justices’ questions also considered the gravity of the assault and whether prosecutors have been stretching the law to reach members of the mob responsible for the attack.

Justice Clarence Thomas, who returned to the bench after an unexplained absence on Monday, asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?”

Justices Samuel A. Alito Jr. and Neil M. Gorsuch asked questions along similar lines.

But the justices mostly considered whether a provision of the Sarbanes-Oxley Act, enacted in the wake of the collapse of the energy giant Enron, covers the conduct of a former police officer, Joseph W. Fischer, who participated in the Capitol assault, on Jan. 6, 2021.

The law figures in two of the federal charges against Mr. Trump in his election subversion case, and more than 350 people who stormed the Capitol have been prosecuted under it. If the Supreme Court sides with Mr. Fischer and says the statute does not cover what he is accused of having done, Mr. Trump is almost certain to contend that it does not apply to his conduct, either.

The law, signed in 2002, was prompted by accounting fraud and the destruction of documents, but the provision is written in broad terms.

At least part of what the law meant to accomplish was to address a gap in the federal criminal code: 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 that gap.

It did that in a two-part provision. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding.

The heart of the case is at the pivot from the first part to the second. The ordinary meaning of “otherwise,” prosecutors say, is “in a different manner.” That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence. The second part, they say, is broad catchall applying to all sorts of conduct.

Mr. Fischer’s lawyers counter that the first part of the provision must inform and limit the second one — to obstruction linked to the destruction of evidence. They would read “otherwise,” in other words, as “similarly.”

The case is one of several affecting or involving Mr. Trump on the court’s docket. In a separate case to be argued next week, the justices will consider Mr. Trump’s claim that he is totally immune from prosecution.

Mr. Fischer is accused of entering the Capitol around 3:24 p.m. on Jan. 6, 2021, with the counting of electoral ballots having been suspended after the initial assault.

He had told a superior in a text message, prosecutors said, that “it might get violent.” 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 that videos showed Mr. Fischer yelling “Charge!” before pushing through the crowd, using a vulgar term to berate police officers and crashing into a line of them.

Mr. Fischer’s lawyers dispute some of this. But the question for the justices is legal, not factual: Does the 2002 law cover what Mr. Fischer is accused of?

That may turn in part on the meaning of another term in the law — its requirement that the defendant acted “corruptly.” The meaning of that word is disputed.

Indeed, the judges in the majority in an appeals court ruling against Mr. Fischer could not agree on just what the word meant.

In the lead opinion, Judge Florence Y. Pan wrote that Mr. Fischer’s conduct satisfied any plausible definition and that she would not choose among them.

But Judge Justin R. Walker said he was willing to concur in her opinion only on the condition that prosecutors be required to prove that Mr. Fischer had acted corruptly in the sense of having had “an intent to procure an unlawful benefit either for himself or for some other person.”

The definition was crucial, Judge Walker wrote, limiting what would otherwise be the law’s “breathtaking scope.” “If I did not read ‘corruptly’ narrowly,” he wrote, “I would join the dissenting opinion.”

In dissent, Judge Gregory G. Katsas wrote that he would define “corruptly” even more narrowly, requiring an intent to procure “an unlawful financial, professional or exculpatory advantage.”

“In contrast, this case involves the much more diffuse, intangible benefit of having a preferred candidate remain president,” Judge Katsas wrote.

Judge Walker said he was doubtful of that reading, but he added that Mr. Fischer’s conduct might qualify under even that strict standard.

In Yates v. United States, a 2015 involving the Sarbanes-Oxley Act, the Supreme Court ruled that undersized red grouper were not “tangible objects” for purposes of a different provision, which is also meant to address the destruction of evidence.

That other provision makes it a crime to conceal or destroy “any record, document or tangible object with the intent to impede, obstruct or influence” a federal investigation. A fisherman was sentenced to 30 days for throwing the fish overboard after an official found them.

On appeal, the fisherman argued that the term “tangible object,” read in the context of a law aimed at white-collar fraud, did not apply to fish. By a 5-to-4 vote, the Supreme Court agreed.

“A fish is no doubt an object that is tangible,” Justice Ruth Bader Ginsburg wrote for four of the justices in the majority. But she added that it would cut the law “loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.”

In dissent, Justice Elena Kagan wrote that the plain words of the law mattered more than its purpose.

“A fish is, of course, a discrete thing that possesses physical form,” Justice Kagan wrote, citing as authority the Dr. Seuss classic “One Fish Two Fish Red Fish Blue Fish.”

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