More than three years after the riot at the Capitol on Jan. 6, 2021, the Department of Justice is continuing to pursue those who participated through hundreds of aggressive prosecutions. That includes Donald Trump, whose political future and personal freedom may depend on whether a jury believes he is to blame for the violence. But the intensity of the Biden DOJ’s crackdown on Jan. 6 offenders has stirred controversy, drawn scrutiny from the Supreme Court in Fischer v. United States, and become a central focus of Trump’s third presidential campaign. In this series, Riot revisited: Jan. 6, Justice, and Capitol Consequences, the Washington Examiner will look at the legal weaknesses in the DOJ’s efforts to punish Jan. 6 rioters and the future of those cases should Trump reclaim the White House.
More than 1,265 defendants have been charged by the Department of Justice under President Joe Biden in relation to the Jan. 6 riot at the Capitol. Hundreds of them may have been wrongly charged with a felony.
The Supreme Court is preparing to weigh oral arguments on Tuesday in Fischer v. United States, a dispute that could drastically alter the indictments against possibly hundreds of defendants, including former President Donald Trump. The namesake of the case is Joseph Fischer, a former Pennsylvania police officer who was charged for his alleged participation in violence on the day of the riot.
Fischer was arrested on Feb. 19, 2021, and charged with assaulting a police officer, disorderly conduct within the Capitol, and obstruction of a congressional proceeding, a violation of 18 U.S.C. § 1512(c)(2), which carries a maximum of 20 years in prison and makes it a crime to “otherwise obstruct[], influence[], or impede[] any official proceeding.” The Justice Department used the obstruction of an official proceeding charge in hundreds of other cases, but Fischer’s lawyers will argue to the Supreme Court this week that the statute has no relevance to the riot.
Prosecutors say Fischer sent text messages before the Jan. 6 riot, including a text that said his former police chief may need “to post my bail” because the protest “might get violent.” At one point amid the riot, the former officer called on those around him to “hold the line” as he was part of a crowd that pushed against U.S. Capitol Police officers, according to his criminal affidavit.
The former police officer, who contends he was only inside the Capitol for a few minutes after he was pushed into the police line by the crowd, is asking the justices to throw out the obstruction charge but not the two other charges he faces. The core of his argument is that the law was only intended to apply to evidence tampering and that applying it to protesters who went into the Capitol was an unfair interpretation of the statute.
More than 300 other defendants from that day of protest and rioting have been charged with violating the obstruction law, which was enacted in 2002 as part of the Sarbanes-Oxley Act in the wake of the Enron scandal. The provision was intended to punish the destruction of documents in the scandal surrounding Enron after auditor Arthur Andersen was accused of destroying possibly incriminating records. The federal law is also at the center of two chargea brought in special counsel Jack Smith’s 2020 election subversion indictment against Trump, for which the justices will hear argument on April 25 regarding Trump’s claims of presidential immunity.
The eventual rulings in both Supreme Court cases, expected by the end of June, will shape the future for hundreds of Jan. 6 defendants as well as Trump’s federal criminal cases.
Back in February, the group America First Legal filed a brief at the Supreme Court on behalf of Sen. Tom Cotton (R-AR), Rep. Jim Jordan (R-OH), and 21 other members of Congress in support of Fischer, saying the defendant was subjected to a “weaponized criminal prosecution” while accusing the Biden administration of a double standard when the DOJ handed down no indictment against Rep. Jamaal Bowman (D-NY), who was caught on video pulling a fire alarm on Sept. 30 during a vote on the House floor.
Frederick Ulrich, a federal public defender who represented Fischer after the government appealed the lower court decision to toss the obstruction charge, told the Washington Examiner he was convinced the Supreme Court would seek to reexamine the breadth of the obstruction statute after a federal appeals court issued a “fractured” decision on his client’s case.
“Because it affected so many of these prosecutions and because the application of the statute in that context was unusual and unprecedented, we thought it had a shot of being [granted for review] regardless of the fact that later on, the Justice Department charged a former president with similar offenses,” Ulrich said.
Here is what you need to know as the justices prepare to hear the case.
How did this case arrive before the Supreme Court?
U.S. District Judge Carl Nichols, an appointee of Trump, dismissed the obstruction charge against Fischer on March 15, 2022. Nichols found that the previous subsection, § 1512(c)(1), which prohibits tampering with evidence “with the intent to impair the object’s integrity or availability for use in an official proceeding,” limits § 1512(c)(2) to cases involving evidence tampering that obstructs an official proceeding.
The government appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The appeals court reversed the decision in an opinion by a three-judge panel written by Judge Florence Pan, an appointee of President Joe Biden who succeeded Justice Ketanji Brown Jackson after she was elevated to the Supreme Court by Biden.
Pan agreed with the defendant’s viewpoint that “outside of the January 6 cases brought in this jurisdiction, there is no precedent for using” § 1512(c)(2) “to prosecute the type of conduct at issue in this case.” But she clarified that the meaning of the statute is “unambiguous,” stating that it clearly “applies to all forms of corrupt obstruction of an official proceeding.”
Pan contended that Supreme Court precedent states that even if a statute can be applied in situations not clearly anticipated by Congress, it does not demonstrate ambiguity but rather “demonstrates breadth.”
Judge Gregory Katsas, a Trump appointee on the panel with Pan, argued in a dissent to Pan’s majority decision that the DOJ’s interpretation of the law was likely “improbably broad and unconstitutional in many of its applications.”
After losing at the District of Columbia Circuit, Fischer appealed to the highest court, and the justices agreed to hear the case.
How will justices rule in the case of Fischer?
Ulrich said the Supreme Court’s options for deciding the Fischer case are based on the range of divergent viewpoints that have been expressed by judges so far in lower court proceedings.
“It could adopt Judge Nichols’s very narrow view of the statute, which confined it pretty much to document destruction or something akin to it, or it could be closer to Judge Katsas’s view that it reaches beyond documents … like involving testimony … or they could adopt Pan’s view that it reaches anything from an official proceeding,” Ulrich said.
Bill Shipley, a defense attorney who has represented more than 50 clients involved in the Jan. 6 protest, told the Washington Examiner he believes the justices’ agreement to consider the breadth of the obstruction statute may signal their belief that the DOJ has gone overboard by using it against defendants.
“There was no reason for the court to take this case if it thought that the outcomes were appropriate. It generally only takes criminal cases for the purposes of reversal,” Shipley said.
The Supreme Court’s prior case examining the Sarbanes-Oxley Act also supports the idea of a more limited application of the obstruction statute, according to Fischer. He contends that the listing of specific acts of tampering in the language of § 1512(c)(1) — altering, destroying, mutilating, or concealing — limits the scope of § 1512(c)(2) on obstruction because the use of the word “otherwise” in § 1512(c)(2) suggests the acts that fall under the second subsection of the law must be related to those in the first.
Shipley explained the dichotomy the justices will be analyzing: Does “otherwise” mean “other actions of the same type of kind, or does [it] mean anything that corruptly” impedes an official proceeding?
Justice Department Solicitor General Elizabeth Prelogar contends that § 1512(c)(2) is not limited to conduct involving the availability of evidence but is instead a “catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding,” according to a brief filed at the high court.
In Prelogar’s understanding of the obstruction statute, words such as “impede” or “obstruct” are intentionally broad terms that can cover a wide range of conduct that hinders official proceedings.
And while the DOJ has acknowledged that § 1512(c) was enacted in direct response to the Enron scandal, it contends Congress created § 1512(c)(1) to preclude legal gaps exposed by the scandal and further argues that § 1512(c)(2) was written to address the risk that “corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.”
What are the implications for Trump and other defendants?
More than 327 defendants have been charged with violating the obstruction statute, and more than 50 have pleaded guilty to the count, according to a Washington Examiner review of court records.
Trump has been charged with two counts under the same law, conspiracy to obstruct an official proceeding and obstruction of an official proceeding, in Smith’s 2020 election subversion case. He has pleaded not guilty to both of these counts, along with two others that arose from his actions in the weeks following the 2020 election.
Ulrich said he believes that if the justices find the obstruction law was overly broad as applied to Fischer, the court will likely remand the case back to the trial court with an accompanying opinion outlining the breadth of § 1512(c)(2).
Notably, the federal public defender said he thinks the more than 50 defendants who have already pleaded guilty to the obstruction count could be “out of luck.”
“Not unless they pled conditionally,” Ulrich said of whether those defendants could benefit from the Supreme Court’s decision.
For defendants who have already been “tried, convicted and sentenced or pled and did not raise this issue,” Ulrich said they may find it difficult to have their sentences retroactively altered. But he noted for defendants who do have guilty pleas on the record, there is a so-called collateral challenge mechanism they could use if the high court narrows the breadth of § 1512(c)(2).
Meanwhile, Smith has sought to pour cold water on the notion that Trump could shake off two charges against him in his Washington, D.C., federal criminal case, one of two indictments the special counsel has levied against him as he fights two other state-level indictments amid the 2024 presidential campaign.
In his latest Supreme Court filing arguing against Trump’s claim that he can avoid a trial entirely by invoking “presidential immunity,” Smith argued that even if the justices narrowed the breadth of the obstruction statute in Fischer, the statute as applied to Trump would remain “valid.”
“Whether the Court interprets [that provision] consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid,” Smith wrote.
Even if Trump managed to shake off two charges he faces in the indictment, he would still be on the hook for the other two charges, including conspiracy to defraud the United States and conspiracy against rights to have votes properly counted.
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Trump more broadly has sought to delay his federal criminal trials at every turn, as he could call on the DOJ to end its prosecution of him if he defeats Biden in the election. Trump has pleaded not guilty to all 88 felony counts he faces across four separate indictments.
Nearly one week after the arguments in the Fischer case, the nine justices will reconvene on April 25 to weigh whether Trump enjoys broad immunity that shields him from Smith’s indictment, another case that will determine the potency of Smith’s case against the former president.
