Washington — The repercussions of the January 6, 2021, invasion of the U.S. Capitol will come under scrutiny at the Supreme Court on Tuesday as the justices gather to examine the extent of a federal obstruction law utilized to charge those involved in breaching the Capitol, including former President Donald Trump.
At the heart of the matter in the case of Fischer v. U.S. is the question of whether federal prosecutors can employ a statute enacted following the Enron scandal, which criminalizes "corruptly" obstructing or hindering an official proceeding, in relation to the events of January 6.
Prior to the January 6 attack, this law had never been utilized by prosecutors in cases not involving tampering with evidence, as the initial section of the law prohibits altering, destroying, mutilating, or concealing a document. However, since January 6, it has been used against over 330 individuals who breached the Capitol during a joint session of Congress to certify 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.
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
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.
She argued that the text of the provision resolves this case, and there is no basis to insert language into the statute that Congress did not write. The provision 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., dismissed fears about how the obstruction statute may be used in the future as "baseless." He stated that prosecutors only apply it in cases where they can demonstrate 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 questioned. Eliason highlighted that the offense has been on the books for 20 years, emphasizing that "unprecedented crimes lead to unprecedented prosecutions."
He emphasized that the law cannot be read ambiguously.
"Someone who participates in a riot, shuts down a proceeding, forces members to flee, is obstructing that proceeding," Eliason stated. "The statute applies. Period."
Ramifications of a decision
The Supreme Court announced in December that it would take up the case, and this decision had immediate repercussions. Some defendants who were convicted of violating the obstruction statute but had not yet been sentenced sought to pause their proceedings until the justices make a ruling, expected by the end of June.
Legal expert Eliason believes that the obstruction-related charges against Trump will hold up despite any Supreme Court ruling, as his actions could be seen as evidence-based obstruction. The special counsel has accused Trump of orchestrating fake elector slates in seven states and pressuring officials to submit these false certificates to Congress.
Eliason explained that this behavior could be considered tampering with physical evidence and submitting false evidence, which could still incriminate Trump even if the court rules in a different direction. However, it could complicate matters for other defendants related to the January 6 events.
In a recent filing to the Supreme Court regarding immunity, Smith asserted that Trump's charges remain valid regardless of the outcome of the case. The special counsel highlighted Trump's use of fake elector slates during the January 6 joint session of Congress as evidence of impairing evidence.
