What could possibly go wrong?

The Supreme Court will weigh in on the January 6 insurrection. What could possibly go wrong?

The Court’s decision could potentially undermine over 300 January 6 prosecutions, including Trump’s.

By Ian Millhiser 

According to the Justice Department, Joseph Fischer texted his boss before the January 6 insurrection to tell him that he might need to post bail. The accused insurrectionist also allegedly warned that the protest at the US Capitol “might get violent,” and he allegedly wrote that “they should storm the capital and drag all the democrates [sic] into the street and have a mob trial.”

When the day of the insurrection came, Fischer allegedly yelled “Charge!” before running and crashing into a line of police inside the Capitol. The Justice Department says that video footage “shows at least one police officer on the ground after [Fischer’s] assault.” Fischer was only in the Capitol for four minutes, according to the DOJ, before he was “forcibly removed.”

Fischer was arrested after the FBI identified him based on a video he posted on Facebook that showed him inside the Capitol on January 6.

More than three years later, however, Fischer has yet to be tried. The criminal proceeding against him has been tied up in appeals after a Trump-appointed trial judge ruled that one of the criminal laws Fischer is charged with violating must be read very narrowly. That ruling is now being reviewed by the Supreme Court, in a case called Fischer v. United States.

The Supreme Court will hear this case next month.

The statute at issue in Fischer provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a serious federal crime and can be imprisoned for up to 20 years. (In practice, someone convicted under this statute will likely receive far less than a 20-year sentence. Federal judges normally rely on guidelines written by the US Sentencing Commission when handing down criminal penalties, rather than mechanically issuing the maximum sentence.)

According to the Justice Department, “approximately 330 defendants have been charged with violating” this statute after the January 6 insurrection. One of them is Donald Trump.

Many of these defendants, including Fischer and Trump, have also been charged under other criminal statutes. And the approximately 330 defendants charged with obstructing an official proceeding are only about a quarter of all January 6 defendants. So, if the Supreme Court embraces Fischer’s narrow reading of the obstruction law, that would undermine many January 6 prosecutions, but it is unlikely to sabotage the entire effort to bring the insurrectionists to justice.

The overwhelming majority of judges have read the obstruction statute broadly enough to encompass the January 6 defendants. As the United States Court of Appeals for the District of Columbia Circuit noted in its opinion saying that Fischer could be charged under this statute, several federal appellate courts “have applied the statute to reach a wide range of obstructive acts.”

Similarly, of the 15 federal trial judges who’d heard January 6 cases, “no fewer than fourteen district judges in this jurisdiction have adopted the broad reading of the statute urged by the government to uphold the prosecution of defendants who allegedly participated in the Capitol riot.” Of these 15 judges, only Judge Carl Nichols, the judge who heard Fischer’s case, disagreed with this consensus view.

Meanwhile, one other judge, Trump appointee Gregory Katsas, dissented from the DC Circuit’s decision. So that’s two judges against the overwhelming consensus of their colleagues. Katsas’s and Nichols’s view is hard to summarize, but they argue that the obstruction statute applies “only to acts that affect the integrity or availability of evidence,” such as if Fischer had impeded a government proceeding by destroying a document.

In any event, a critical mass of the justices apparently felt that the Katsas and Nichols arguments were persuasive enough that this question should be reviewed by the Supreme Court. And so the Court will now weigh whether to accept the mainstream view of the obstruction statute or the outlier view embraced by two of Trump’s judges.

The two competing readings of the obstruction statute, explained

To understand the two competing interpretations of the obstruction statute, it’s helpful to be familiar with its full text. It provides that:

(c) Whoever 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,

shall be fined under this title or imprisoned not more than 20 years, or both.

Much of the disagreement between judges who read the statute broadly and judges like Nichols and Katsas turns on the proper meaning of the word “otherwise.”

As the DC Circuit held in its opinion adopting DOJ’s reading of the statute, “the word ‘otherwise’ has been given its common meaning of ‘in a different manner’ when used in similarly structured statutes.” So subsection (1) covers obstruction of a government proceeding involving documents, while subsection (2) covers obstruction of such a proceeding that is achieved through some means other than destroying or manipulating a document.

Judge Katsas, meanwhile, read the word “otherwise” to mean the opposite. In his dissent, he accuses the Justice Department of “dubiously read[ing] otherwise to mean ‘in a manner different from,’ rather than ‘in a manner similar to.’” So, under Katsas’s reading of this word, subsection (2) only covers obstruction that is similar to destruction or manipulation of a document. It doesn’t cover a violent attempt to shut down a congressional proceeding by storming the Capitol.

As Judge Florence Pan, the author of the DC Circuit’s Fischer decision, notes in her opinion, Katsas’s reading of this word “otherwise” is at odds with at least two dictionaries. She quotes from the Oxford English Dictionary’s definition of the word (“[i]n another way or ways; in a different manner; by other means; in other words; differently”) and from Black’s Law Dictionary’s definition (“[i]n a different manner; in another way, or in other ways”).

Yet, while Katsas’s reading of the obstruction statute is counterintuitive, it is less ridiculous than it might seem. The Supreme Court has sometimes said that seemingly unambiguous statutes can be read in ways that are, well, not the same way that an ordinary English speaker would read the law’s text. In their brief, Fischer’s lawyers rely heavily on a Supreme Court decision that did so.

Yates v. United States (2015) concerned a criminal statute that targets anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to obstruct a federal investigation or proceeding.

The defendant was a commercial fisherman who caught undersized red groupers, then ordered a crew member to toss these fish overboard “to prevent federal authorities from confirming that he had harvested undersized fish.” The question in Yates was whether these undersized fish are a “tangible object” within the meaning of the federal statute.

This question divided the justices into three different camps, and not along familiar partisan lines. Justice Elena Kagan, an Obama appointee, wrote a dissent for herself and three of her Republican colleagues, arguing that the term “tangible object” should be given its ordinary meaning: “physical objects,” including fish.

Meanwhile, liberal Justice Ruth Bader Ginsburg wrote the Court’s lead opinion for herself and a bipartisan group of three other justices, arguing that the words accompanying “tangible object,” which deal with records and documents, matter.

According to Ginsburg, a court should “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words,” and thus the term “tangible object” should be read “to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents.” (Justice Samuel Alito wrote a brief tiebreaking opinion, which concluded that the question in Yates “is close” but that largely agreed with Ginsburg’s reading of the statute.)

In any event, Fischer’s lawyers argue that his case is similar to Yates. So, just as Justice Ginsburg determined that the term “tangible object” must be read similarly to “its accompanying words,” Team Fischer argues that the phrase “otherwise obstructs, influences, or impedes any official proceeding” must be read similarly to subsection (1)’s reference to “a record, document, or other object.”

Is that a persuasive argument? Well, again, the overwhelming majority of judges to consider the obstruction statute have rejected a narrow reading and have read subsection (2) in the same way an ordinary English speaker would read it.

But Yates, at least, demonstrates how courts can sometimes read seemingly unambiguous statutory provisions in counterintuitive ways. And it potentially provides a roadmap for justices who want to write an opinion giving aid and comfort to the January 6 defendants.

The Supreme Court may also home in on the obstruction statute’s use of the word “corruptly”

The third judge on the DC Circuit panel was also a Trump appointee, Justin Walker. Unlike Katsas, however, Walker did not attempt to read the obstruction statute to exonerate January 6 defendants. Instead, Walker focused on the statute’s language saying that it only applies to someone who “corruptly” seeks to obstruct an official proceeding.

Walker worried that, if the word “corruptly” were read too broadly, then the obstruction statute could potentially be read to encompass “lawful attempts to ‘influence’ congressional proceedings,” such as “protests or lobbying.” To prevent this outcome, Walker argued that the word “corruptly” should be defined to mean that a defendant acted “with an intent to procure an unlawful benefit either for himself or for some other person.”

This interpretation should not hinder any January 6 prosecutions as the whole point of the January 6 insurrection was to procure an unlawful benefit for Donald Trump: a second presidential term. But it is possible that some of the justices will share Walker’s concern that the obstruction statute can be read too broadly and interpret the word “corruptly” to eliminate this problem.