SCOTUS Hears Oral Arguments in January 6 Obstruction Case

The United States Supreme Court heard oral arguments Tuesday in a case concerning a man who was indicted for his involvement in the events that transpired at the Capitol on January 6, 2021.

This is the first time that the Supreme Court Justices have directly considered the events that took place that day in their discussion of a case. Although January 6 has previously factored into arguments presented before the Court, they have largely remained in the background up until this point.

That said, there was little to no discussion of the day’s events themselves during Tuesday morning’s arguments, with both the Justices and attorneys focusing primarily on the complex legal questions underpinning the disagreement that spurred this appeal.

Fischer v. United States is centered around the question of whether or not federal tampering laws [18 U.S. Code § 1512 (c)(2)] — which prohibit the obstruction of official proceedings by a variety of means — can be interpreted “to include acts unrelated to investigations and evidence.”

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Based on the discussion that took place during Tuesday’s oral arguments, it appears that the Court is divided on this matter. While most of the Justices gave off the impression that they are highly-skeptical of the government’s expansive understanding of the law, others seemingly supported their broader interpretation of the statute’s language.

18 U.S. Code § 1512 (c) was first enacted in 2002 following the Enron scandal, primarily to prevent the destruction of evidence with the intent to obstruct an official proceeding.

While 18 U.S. Code § 1512 (c)(1) clearly refers to “records,” “documents,” and “objects,” the language of 18 U.S. Code § 1512 (c)(2) appears more ambiguous, simply prohibiting conduct that “otherwise obstructs, influences, or impedes any official proceeding.”

The defendant at the center of the case currently before the Court — Joseph Fischer — was indicted for several felony and misdemeanor offenses with respect to his involvement in the events of January 6, 2021, including one count of obstruction of an official proceeding.

Fischer’s attorney challenged the obstruction charge on the grounds that the conduct in which Fischer allegedly engaged in that day is not be prohibited by this statute.

The District Court agreed with the defendant’s interpretation, but this judgement was later reversed by the US Court of Appeals for the DC Circuit. The United States Supreme went on to grant cert for the Fischer case in December of 2023.

During Tuesday’s oral arguments, Jeffrey Green — attorney for Fischer — argued that the correct interpretation of 18 U.S. Code § 1512 (c)(2) is a narrow one that applies only to obstruction with respect to evidence tampering.

Green also noted the historical lack of prosecutions under this statute for anything other than evidence tampering up until the proceedings related to January 6, 2021.

Green argued that the government’s proposed interpretation of 18 U.S. Code § 1512 (c)(2) would turn this statute from a “catch-all” into a “dragnet” by ignoring the accepted understanding of the term “otherwise” as referring to “similar conduct [done] in a different way.”

Justice Elena Kagan questioned Green on his interpretation, pointing out that there were “multiple ways” that lawmakers could have made it clear that 18 U.S. Code § 1512 (c)(2) was to only apply to evidence tampering, “but it doesn’t do that.”

Continuing, the Justice pushed Green to explain his understanding of the “commonality” that 18 U.S. Code § 1512 (c)(2) draws from 18 U.S. Code § 1512 (c)(1). Justice Kagan also posited her own interpretation of this language, suggesting that the key commonality is that “the things that flow into (c)(2) also have to obstruct, influence, or impede.”

“What (c)(2) does not say, really does not say” Kagan argued, “is everything in (c)(2) also has to spoil evidence.”

In response, Green made the case that this “tells you what the effect is,” but “the conduct that is specified in (c)(1) is altering, destroying, mutilating, or concealing a document, record, or other object.”

Green went on to explain that, in his view, the use of the term otherwise in this statute refers not to any and all conduct that would have the same impact as that which is laid out in the first part of this law, but rather to conduct that is discernibly similar to that which is previously outlined.

US Solicitor General Elizabeth Prelogar, on the other hand, urged the Court to find that this statute does encompass Fischer’s actions on January 6, 2021, suggesting that the law covers his alleged conduct “unambiguously” and “in plain English.”

Prelogar further argued that Green’s understanding of the term otherwise in this statute has “no basis in the text or tools of construction.”

Justice Neil Gorsuch questioned her interpretation, asking Prelogar: “What does that mean for the breadth of this statute? Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify or at the State of the Union Address? Would pulling a fire alarm before a vote qualify? Are those all federal felonies subject to 20 years in prison?”

In response, Prelogar argued that “there are multiple elements of this statute” that “might not be satisfied by those hypotheticals” because they do not rise to the threshold of “obstruction” with “corrupt intent.”

Because of the widespread citation of 18 U.S. Code § 1512 (c)(2) in the charges that have been brought against roughly three hundred defendants nationwide with respect to their alleged conduct on January 6, 2021, the Court’s decision in Fischer could have widespread implications.

The possibility has also been raised that a more narrow interpretation of this statute by the Court could invalidate the obstruction charges that have been brought against former President Donald Trump (R) by US Department of Justice (DOJ) Special Prosecutor Jack Smith.

Smith has argued, however, that even if the Court prevents the application of this law to those who participated in the events that transpired at the Capitol on January 6, 2021, the statute could possibly still be applied to the former president for the actions he took leading up to that day.

Should this happen, other aspects of 18 U.S. Code § 1512 (c)(2) that were only briefly touched upon during Tuesday’s oral arguments — such as the accepted definition of “official proceeding” — will likely come to the forefront.

As of now, it is not clear when the Justices will release their opinion for the Fischer case, but all opinions are typically handed down before the Court recesses for the summer.

According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.

Click Here to Hear the Supreme Court’s Full Oral Arguments in Fischer v. US