Most Justices Seem Skeptical of Charging Capitol Rioters With Obstructing an Official Proceeding

About 350 Donald Trump supporters who participated in the 2021 Capitol riot that interrupted congressional certification of Joe Biden's election victory have been charged with obstructing an "official proceeding." So has Trump himself: The August 2023 federal indictment that accuses him of illegally interfering in the 2020 presidential election says he obstructed or attempted to obstruct an official proceeding and conspired with others to do so. On Tuesday, the U.S. Supreme Court considered whether such charges are legally valid in this context, and most justices seemed inclined to think they are not.

The question posed by Fischer v. United States is whether 18 USC 1512(c), an offense created by the Sarbanes-Oxley Act of 2002, encompasses "acts unrelated to investigations and evidence." Section 1512(c)(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." Section 1512(c)(2), the provision used in the Capitol riot cases, applies to anyone who "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so." Both are felonies punishable by up to 20 years in prison.

Joseph Fischer, a former police officer who was charged with obstructing an official proceeding after participating in the Capitol riot, argues that the statute should be understood in light of the financial scandal that prompted it. Congress passed the Sarbanes-Oxley Act "in the wake of the large-scale destruction of Enron's financial documents," Fischer's lawyer, Jeffrey Green, noted during oral arguments. "The statute therefore prohibits the impairment of the integrity or availability of information and evidence to be used in a proceeding." Until the Capitol riot cases, he added, Section 512(c) "had never been used to prosecute anything other than evidence tampering."

There was "good reason" for that, Green argued: "This Court has said that otherwise, when used in a criminal statute, means to do similar conduct in a different way. The government would have you…disregard all that and instead convert [Section 512(c)(2)] from a catchall provision into a dragnet." Under that reading, he said, the second subsection renders the first superfluous. That reading is not only illogical, he argued; it is also unnecessary, because "there are a host of felony and misdemeanor crimes that cover the alleged conduct" of the Capitol riot defendants.

Although "many crimes occurred that day," U.S. Solicitor General Elizabeth Prelogar told the justices, "the fundamental wrong committed by many of the rioters, including [Fischer], was a deliberate attempt to stop the joint session of Congress from certifying the results of the election." Fischer "doesn't really argue that his actions fall outside the plain meaning of what it is to obstruct," she said. "His reading hinges on the word otherwise, but that word means in a different manner, not in the same manner." While Section 1512(c)(1) "covers specified acts that obstruct an official proceeding," she argued,  Section 1512(c)(2) "covers all other acts that obstruct an official proceeding in a different manner."

Justice Neil Gorsuch noted the potentially sweeping impact of Prelogar's interpretation. "Would a sit-in that disrupts a trial or access to a federal courthouse qualify?" he asked her. "Would a heckler in today's audience qualify or [a heckler] at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?"

That last hypothetical sounded like an allusion to Rep. Jamaal Bowman (D–N.Y.), who was censured last year for pulling a fire alarm at the Capitol prior to a vote on a spending bill. Bowman, who said he did that by accident, nevertheless pleaded guilty to one count of falsely activating a fire alarm. His sentence, which included a $1,000 fine and a letter of apology to U.S. Capitol Police Chief J. Thomas Manger, fell far short of the stiff prison term that could apply to obstruction of an official proceeding.

Prelogar responded that Gorsuch's examples might not fit the elements of that crime, which requires "meaningful interference." If "you have some minor disruption or delay or some minimal outburst," she said, "we don't think it falls within" the statute.

Suppose a heckler's outburst forced a court to "reconvene" after order was restored, "the protest outside of a courthouse makes it inaccessible for a period of time," or a vote "has to be rescheduled" because of a false fire alarm, Gorsuch said. "Are those all federal felonies subject to 20 years in prison?"

Not necessarily, Prelogar replied, because "we'd also have to be able to prove that they acted corruptly." She said that would require showing not just that a defendant meant to disrupt a proceeding but that he "had corrupt intent in acting in that way." When it comes to "a peaceful protest, even one that's quite disruptive," she said, "it's not clear to me that the government would be able to show that each of those protesters have corrupt intent." But "if they intend to obstruct and we're able to show that they knew that was wrongful conduct," she added, "then yes, that's a 1512(c)(2) offense."

Justice Samuel Alito, who said the Court needs to understand "the outer reaches of this statute under your interpretation," elaborated on one of Gorsuch's hypotheticals. Suppose that during oral arguments in this very case, he said, "five people get up, one after the other, and they shout either 'Keep the January 6th insurrectionists in jail!' or 'Free the January 6th patriots!' And as a result of this, our police officers have to remove them forcibly from the courtroom. And let's say we have to delay the proceeding for five minutes." In those circumstances, Alito said, "an advocate might lose his or her train of thought and not provide the best argument." Since such a protest arguably "impedes" or "influences" an official proceeding, he wondered, would it fall under Section 1512(c)(2)?

Even if you "look at some of the broader dictionary definitions and adopt a broader understanding" of the requisite conduct, Prelogar said, "there would be the backstop of needing to prove corrupt intent." For example, she said, if someone mistakenly thought he was exercising his right to freedom of speech by shouting during a judicial proceeding, he would not have the necessary "consciousness of wrongdoing." By implication, however, he could be guilty of this felony if he understood that he had no right to behave that way.

Justice Amy Coney Barrett also suggested she was "concerned about the breadth of the government's reading." She wondered whether "it's plausible that Congress would have written a statute" broadly enough to encompass the courtroom disruption that Alito described.

Barrett posed another hypothetical: "What if on January 6th the Capitol itself had not been breached. The protest is going on outside the Capitol: 'Stop the steal, stop the steal.' Police are…saying, 'disperse, disperse,' [because] they're too close to the Capitol. Their goal is to impair, impede, stop the proceeding, stop the counting of votes. Does that violate the statute in your view, under this 'impede' language?" Assuming that "the same thing happened, where Congress had to go into recess and couldn't hold the joint session…because there was such a security risk," Prelogar said, "I think that that probably would be chargeable if we had the intent evidence."

Since this law was enacted, Justice Clarence Thomas noted, "there have been many violent protests that have interfered with proceedings." He wondered whether the government has "applied this provision to other protests."

The Justice Department has "enforced it in a variety of prosecutions that don't focus on evidence tampering," Prelogar said. She mentioned a defendant who "tipped off the subject of an investigation to the grand jury's hearings" and "another case where someone [revealed] the identity of an undercover law enforcement officer." But she could not cite any prior cases involving protests that disrupted an official proceeding. "I can't give you an example of enforcing [this law] in a situation where people have violently stormed a building in order to prevent an official proceeding," she said, because "I'm not aware of that circumstance ever happening prior to January 6th."

Chief Justice John Roberts, who wrote the Court's unanimous opinion in Bissonnette v. LePage Bakeries, which it issued on Friday, suggested that decision favors Fischer's reading of Section 1512(c), which features "specific terms" followed by "a more general catchall." In that situation, he said, the statutory construction principle ejusdem generis says "the general phrase is controlled and defined by reference to the terms that precede it. The 'otherwise' phrase is more general, and the terms that precede it are 'alters, destroys, mutilates, or conceals a record and document.' And applying the doctrine as [it] was set forth in [Bissonnette], the specific terms 'alters, destroy, and mutilate' carry forward into (2), and the terms 'record, document, or other object' carry forward into (2) as well. And it seems to me that they, as I said, sort of control and define the more general term."

Justice Brett Kavanaugh said the "key word" in dispute is otherwise. He agreed with Roberts that the structure of Section 1512(c) "would seem to trigger ejusdem generis" as a guide to understanding that term. He suggested "it would be odd to have such a broad provision tucked in and connected by the word otherwise."

Kavanaugh also seemed sympathetic to Green's argument that the government has plenty of options for charging the January 6 defendants without relying on this statute. "There are six other counts in the indictment here, which include civil disorder, physical contact with the victim, assault, entering and remaining in a restricted building, disorderly and disruptive conduct, disorderly conduct in the Capitol building," he said while questioning Prelogar. "Why aren't those six counts good enough just from the Justice Department's perspective given that they don't have any of the hurdles?"

The other charges "don't fully reflect the culpability of [Fischer's] conduct on January 6th," Prelogar replied. "Those counts do not require that [Fischer] acted corruptly to obstruct an official proceeding….I think it is entirely appropriate for the government to seek to hold [Fischer] accountable for that conduct with that intent."

Justice Ketanji Brown Jackson wondered if the government's understanding of Section 1512(c)(2) is consistent with the rest of the statute. "You said…the nexus between
(1) and (2) is…the obstruction of an official proceeding," she told Prelogar. "I guess what I'm concerned about is how you then account for the rest of 1512, where 'official proceeding' comes up over and over again." If "particular acts that one could view as obstructing the official proceeding, like killing or threatening or intimidating witnesses," are covered by Section 1512(c)(2), she said, "I don't understand what happens to the rest of those provisions."

Jackson also seemed to agree with Green that the historical context of the Sarbanes-Oxley Act is relevant. "It was in the wake of Enron," she noted. "There was document destruction, and there was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally. They had this particular problem, and it was destruction of information that…could have otherwise been used in an official proceeding." Jackson said she was "struggling with leaping from what's happening in (1) in the context in which it was actually enacted to all of obstruction in any form."

While Gorsuch et al. seemed troubled by Prelogar's broad reading of the law, Justice Sonia Sotomayor objected to Green's narrow interpretation. Suppose a theater posts a sign warning that "you'll be kicked out of the theater if you 'photograph or record the actors or otherwise disrupt the performance,'" she said. "If you start yelling, I think no one would question that you can be expected to be kicked out under this policy, even though yelling has nothing to do with photograph[ing] or recording."

Justice Elena Kagan suggested "there are plenty of ways" in which Congress could have made it clear that the law applies "only in the sphere of evidence spoliation." But the statute as written, she said, "doesn't do that."

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