January 6 insurrectionists

Why the Supreme Court just ruled in favor of over 300 January 6 insurrectionists

The rules governing statutory construction often allow judges to choose how they want to read a law.

by Ian Millhiser

On Friday, the Supreme Court ruled that a federal law, providing that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal crime, does not actually apply to everyone who obstructs, influences, or impedes an official proceeding.

Worse, the Court does so in a case involving a January 6 insurrectionist.

Approximately 330 people who allegedly participated in that insurrection are charged with violating the statute at issue in Fischer v. United States, including Donald Trump. So Friday’s decision could potentially undermine much of the Justice Department’s ability to prosecute hundreds of people who attacked the US Capitol.

On the surface, in other words, the Fischer decision could not play more into the growing narrative that the Supreme Court is a partisan institution that protects the interests of the Republican Party, and of Trump in particular. How else can one explain the Court’s decision that the anti-obstruction law does not do what it says it does?

The full story of Fischer, however, is slightly more nuanced. For one thing, while five of the justices in the majority are Republicans, Biden-appointed Justice Kentanji Brown Jackson joined these five in the majority. Trump-appointed Justice Amy Coney Barrett wrote the dissent, which was joined by the Court’s two remaining Democrats.

And, while Chief Justice John Roberts’s majority opinion does not read the obstruction law according to its plain text, it does rely on rules governing statutory interpretation that the Court has, at least, applied in less politically charged cases.

Fischer, in other words, is less a case about justices tying themselves into knots in order to help out January 6 defendants than it is a case about how easy it is for judges to read a seemingly unambiguous law in multiple ways. The rules governing statutory interpretation are not clear, and it is not even certain when judges should apply one of those rules as opposed to a different one.

And that means each of the justices could have chosen either outcome in the Fischer case.

So what did Fischer actually hold?

The Fischer case involves a federal law with two separate subsections. Subsection (1) applies to anyone who “corruptly ... 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.”

Meanwhile, subsection (2), the provision many January 6 defendants are accused of violating, applies to someone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

As Barrett writes in dissent, the most natural reading of this statute is that anyone who broke into the US Capitol to disrupt certification of the 2020 election “can be tried for ‘obstructing, influencing, or impeding an official proceeding.’” Subsection (2) of this law “is a very broad provision.” The case that it applies to January 6 defendants “seems open and shut.”

Indeed, the overwhelming majority of lower court judges who heard similar cases reached the same result as Barrett.

Roberts’s reading of the statute is, to put it mildly, less intuitive. He claims that subsection (2)’s broad language is “linked to its ‘surrounding words.’” So subsection (2)’s broad language is “limited by the preceding list of criminal violations” in subsection (1).

Therefore, under Roberts’s reading, subsection (2) must be read to only capture activities similar to the ones described in subsection (1) — that is, activity like altering, destroying, mutilating, or concealing a record or document. The way that plays out, according to Roberts, is that January 6 defendants can only be charged under this statute if they created false evidence or otherwise impaired “the availability or integrity of other things used in an official proceeding beyond the ‘record[s], document[s], or other object[s]’ enumerated in (c)(1), such as witness testimony or intangible information.”

Let’s stipulate that Roberts’s interpretation of the statute is super confusing and that it does not comport with the way most English speakers would read this law. The oddest thing about Fischer is that there are actually some Supreme Court precedents that support Roberts’s decision.

Consider Yates v. United States (2015), which involved a very similar dispute in a much less politically charged case. The law in Yates targeted 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.” Yates asked whether these undersized fish are a “tangible object” within the meaning of the federal statute.

Remarkably, a majority of the justices concluded that they are not. Justice Ruth Bader Ginsburg’s plurality opinion concluded that 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.”

Ginsburg’s opinion only garnered four votes, but Justice Samuel Alito wrote a concurring opinion saying that the question in Yates is “close,” but that largely agreed with Ginsburg’s reasoning.

Given that Yates exists, Roberts’s Fischer opinion isn’t entirely ridiculous. The uncomfortable reality about Fischer is that a judge who wants to crack down on January 6 defendants can read the law according to its plain text, as Barrett did, while justices who wish to reach a different result can rely on Yates, as Roberts did.

What actually happened in this case is that five of the Court’s Republicans read the law in a way that minimizes the law’s impact on a particularly lawless band of Trump supporters, and they were joined by the Court’s sole former public defender. Read into that what you will.

The point is simply that previously established rules governing statutory interpretation give judges a great deal of leeway to reach a variety of results in many cases.