Washington — The fallout from the Jan. 6, 2021, attack on the U.S. Capitol will land before the Supreme Court on Tuesday when the justices convene to consider the scope of a federal obstruction statute used to prosecute those who breached the building, as well as former President Donald Trump.
At the crux of the case, known as Fischer v. U.S., is whether federal prosecutors can apply a law passed in the wake of the Enron scandal, which makes it a crime to “corruptly” obstruct or impede an official proceeding, to the Jan. 6 assault.
Before the Jan. 6 attack, prosecutors had never used the law in cases that did not involve evidence tampering, as the first provision of the measure prohibits altering, destroying, mutilating or concealing a document. But since Jan. 6, it has been levied against more than 330 defendants who breached the building where Congress had convened a joint session to tally states’ electoral votes.
It is also being used to prosecute Trump, who pleaded not guilty to one count of obstructing Congress’ counting of Electoral College votes, one count of conspiring to obstruct the proceeding and two others brought against him by special counsel Jack Smith in Washington, D.C., last year.
The outcome of the legal fight is being closely watched because of the possible ramifications for the charges against Trump, which stem from what Smith alleges was a multi-pronged scheme to overturn the outcome of the 2020 presidential election. If the court sides with Fischer, Trump could seek to have the two counts related to obstruction of an official proceeding dismissed.
Trump’s case has been paused for months as he seeks to have the charges dismissed on the grounds he is entitled to presidential immunity. The Supreme Court will consider that issue next week.
Separate from Trump, the obstruction dispute could also have repercussions for scores of Jan. 6 defendants who have already been convicted of the offense or pleaded guilty. A decision finding prosecutors stretched the obstruction law too far could prompt bids for new trials or lighter sentences.
The Jan. 6 case before the Supreme Court
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One of those defendants, Joseph Fischer, brought the dispute currently before the Supreme Court after he was charged in a seven-count indictment in early 2021. Fischer, then a police officer in Pennsylvania, entered the Capitol around 3:25 p.m. Prosecutors claimed he encouraged rioters to “charge” and ran into a line of officers while yelling an obscenity.
His lawyers, though, said Fischer was pushed by the crowd into a police line. Fischer was in the Capitol for less than four minutes, they told the court.
Among the charges Fischer faced was assaulting a police officer, disorderly conduct and corruptly obstructing, influencing and impeding an official proceeding — Congress’ certification of the Electoral College vote. The charge was enacted as part of the 2002 Sarbanes-Oxley Act, and violators face up to 20 years in prison.
Fischer moved to dismiss the count. U.S. District Judge Carl Nichols granted his request, determining that nothing in the indictment alleged that Fischer “took some action with respect to a document, record, or other object” in order to obstruct the congressional proceedings.
The Justice Department appealed Nichols’ ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against Fischer in a divided decision last year.
In the lead opinion, Judge Florence Pan acknowledged that outside of the Jan. 6 cases, there was no precedent for using the obstruction statute to prosecute conduct like Fischer’s. Still, she concluded that the district court was wrong to adopt a narrow interpretation of the law that limited its application to obstructive conduct involving a document or record.
Pan noted that 14 of 15 district judges in D.C. adopted a broader reading of the statute and called the near-unanimity “striking.”
Key to the ruling was the interpretation of the word “otherwise,” which Pan wrote meant that the second of the provision’s two sections applies to “all forms of corrupt obstruction of an official proceeding,” outside of what is covered by the first section.
Lawyers for Fischer asked the Supreme Court to review the D.C. Circuit’s decision, and it agreed to do so in December.
In filings with the high court, defense attorneys urged the justices to narrow the scope of the law, arguing it targets “discrete acts intended to affect the availability of evidence” used in an official proceeding.
Congress, they said, intended to protect the integrity of investigations and evidence when lawmakers wrote the measure after the Enron scandal. The company’s outsider auditor, Arthur Andersen, was shown to have destroyed incriminating documents.
Defense attorneys warned that without limiting the reach of the obstruction law, its scope is “breathtaking” and unconstitutional.
“Anything that affects or hinders a proceeding falls within the government’s definition,” they wrote. “But that definition encompasses lobbying, advocacy, and protest, the very mechanisms that citizens employ to influence government.”
Michael Heiskell, president of the National Association of Criminal Defense Lawyers, agreed that prosecutors’ application of the statute is too broad, and warned it can lead to overcriminalization.
“This is one of these examples where you can have an overzealous prosecutor and apply it to certain situations that it shouldn’t be applied to,” he told CBS News.
Heiskell echoed Fischer’s concerns that if the Supreme Court sides with the Justice Department, prosecutors could stretch the statute to cover acts like lobbying.
“It’s so vague and general and subject to different interpretations that we oppose its use in this instance for the Jan. 6 people, especially those who went in, may have broken some laws with trespassing, but then to leapfrog and say these folks try to corruptly influence an official proceeding? That’s just too vague,” he said.
The Justice Department, though, said the text, context and history of the provision shows it broadly bars a person from corruptly engaging in conduct to obstruct court, agency and congressional proceedings.
Accepting Fischer’s argument, wrote Solicitor General Elizabeth Prelogar in a Supreme Court brief, “would undermine Congress’s effort to prohibit unanticipated methods of corruptly obstructing an official proceeding — such as petitioner’s alleged conduct in joining a violent riot to disrupt the joint session of Congress certifying the presidential election results.”
Prelogar refuted warnings from Fischer’s attorneys that if interpreted broadly, the law would be used to prosecute constitutionally protected conduct like lobbying or peaceful protests. Instead, she said the statute is limited to acts that hinder a proceeding, and advocacy like lobbying or presenting oral argument before a court don’t qualify.
“The text of the provision resolves this case, and there is no basis to insert language into the statute that Congress did not write,” she argued, noting that it functions as a “catchall offense” designed to cover all forms of corrupt obstruction of an official proceeding.
Randall Eliason, a former federal prosecutor in Washington, D.C., called fears about how the obstruction statute may be used in the future “baseless,” since prosecutors apply it only in cases where they can show corrupt intent.
“We haven’t seen prosecutions of innocent lobbyists, so why would that change in the future just because we applied this statute to an unprecedented event?” he asked, noting that the offense has been on the books for 20 years. “Unprecedented crimes lead to unprecedented prosecutions.”
He questioned how the law could be read ambiguously.
“Someone who participates in a riot, shuts down a proceeding, forces members to flee, is obstructing that proceeding,” Eliason said. “The statute applies. Period.”
Ramifications of a decision
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The Supreme Court said in December it would take up the case, and its decision to do so reverberated swiftly. Some defendants who were convicted of violating the obstruction statute but not yet sentenced sought to pause their proceedings until the justices rule, likely by the end of June.
If the court sides with Fischer and finds the law narrowly covers corrupt evidence-related conduct, there could be dozens of defendants who have been convicted and seek resentencing, withdraw guilty pleas or ask for a new trial, said Eliason, who now teaches criminal law at George Washington University.
“It may not result in a lot of people being released from prison, but it will result in a lot of court proceedings where judges have to deal with it,” he said.
One of those defendants is Donovan Crowl, a member of the Oath Keepers who was convicted last year of conspiracy to obstruct Congress’ counting of electoral votes and set to be sentenced in January. But Crowl’s lawyer, Carmen Hernandez, recently renewed a request to halt his sentencing pending the Supreme Court’s resolution of the Fischer case.
Federal prosecutors opposed an earlier bid by Hernandez to delay the sentencing but changed their position in response to her request last month.
“I do believe the statute was never intended to reach this conduct. It was a statute enacted to reach corporate fraud,” Hernandez told CBS News, adding that “in 20 years on the books, it has never been used against any demonstrators.”
Hernandez said she is hopeful the Supreme Court will side with Fischer and the decision will favorably impact her client.
As for the impact on Trump’s case, Eliason said he believes the obstruction-related counts against Trump will withstand any Supreme Court decision, in part because his alleged conduct may constitute evidence-based obstruction.
The special counsel has accused Trump of deceitfully organizing fake slates of electors in seven battleground states and urging state officials to send the false certificates to Congress.
“You can frame that as tampering with physical evidence in the proceeding, submitting false evidence,” Eliason said. “Even if the court agrees with Fischer, the Trump charges can survive. But it’ll cause a real mess for the other Jan. 6 defendants.”
Smith told the Supreme Court in a filing in the immunity case last week that regardless of which side prevails, the charges against Trump are still valid.
Pointing to Trump’s alleged efforts to use fake slates of electors during the joint session of Congress held on Jan. 6, the special counsel wrote the creation of the phony documents “satisfies an evidence-impairment interpretation.”