The Supreme Court appeared incredibly skeptical during arguments Tuesday about how a law was used to charge hundreds of participants in the Jan. 6, 2021, attack.
The case came to court following a complaint from Joseph Fischer, who was part of the mob that stormed the Capitol on January 6. Among other charges, he was accused of violating a provision in a 2002 accounting reform law that bans anyone who “corruptly … obstructs, influences or impedes any official proceeding, or attempts thereto.”
But in his challenge, Fischer argued that the law was not intended to apply to situations like the Jan. 6 insurrection. The Justice Department has already charged at least 330 participants in the attack, including former ones President Donald Trumpby violating this provision.
If the court rules in Fischer’s favor, it would likely lead to the dismissal of this charge from his case, as well as the dismissal of hundreds of other defendants — including Trump. That charge against Trump was filed by special counsel Jack Smith as part of a four-count indictment alleging crimes committed in the fight to overturn the 2020 election.
During arguments, the court’s conservative justices appeared hostile to the use of this provision in the January 6 context, suggesting that the government’s interpretation of the provision was too broad. Liberal Justice Ketanji Brown Jackson also appeared to question whether the government’s theory of applying this provision could criminalize other activities, such as protests and civil disturbances, that were not as violent or disruptive as the insurrection.
The arguments centered on the interpretation of the provision, officially known as 1512(c)(2), of the 2002 Sarbanes-Oxley Act. The law, which was passed in the wake of the Enron and Arthur Andersen accounting scandals, tried numerous to close loopholes and gaps in the obstruction codes that protected the destruction or alteration of documents, especially in relation to financial fraud.
Lower courts are divided over how to interpret the use of the word “other,” which separated the provision in question from the provision that preceded it. The full text of the law shows this separation (emphasis added):
(c) Anyone who is corrupt –
(1) alters, destroys, mutilates, or conceals any record, document, or other object, or attempts to do so, with the intent to affect the integrity or availability of the object for use in an official proceeding; or
(2) otherwise obstructs, interferes with or impedes any official proceeding or attempts thereto,
shall be fined under this title or imprisoned for a term not exceeding twenty years, or both.
The question for the Supreme Court is whether the word “differently” means “in a similar manner” — as a district court judge who initially dismissed the charge against Fischer — found — or “in a different manner” — as in a divided appeals court later ruled. .
If “otherwise” means “in a similar manner,” then the provision used to charge the January 6 defendants would be combined with the reference in the preceding provision to papers, documents or other objects.
That reading would lead to the dismissal of Fischer’s charges because he did not attempt to alter, destroy, mutilate or conceal a document when he invaded the Capitol and allegedly assaulted a police officer, his attorney, Jeffery Green, argued.
The Court’s conservative justices appeared to favor this reading of the statute, although they spent much of their time discussing hypothetical applications of the law.
Citing a series of examples where liberals or leftists were involved in activities that disrupted official proceedings, the conservative justices on behalf of the government pressed Solicitor General Elizabeth Prelogar on the limits of the use of 1512(c)(2) ) by the Ministry of Justice. ).
“There have been many violent protests that disrupted the proceedings. Has the government applied this provision to other protests in the past?” Judge Clarence Thomaswhose wife, Ginni Thomas, attended the Jan. 6 “Stop the Steal” rally that sparked the riot, wondered.
Justice Neil Gorsuch asked whether the law applied to someone who pulled a fire alarm before a vote in Congress, referring to Rep.’s similar action. Jamaal Bowman (DN.Y.) last September. What if five protesters interrupted Supreme Court arguments and caused a delay, Justice Samuel Alito asked, citing a 2015 incident in which campaign finance reform activists shouted protests during arguments. Or could the law apply to protesters who block bridges — as anti-war demonstrators did in San Francisco on Monday — from Virginia to Washington to prevent lawmakers from reaching a certain vote, Alito asked.
Prelogar refuted these hypotheses by stating that the government is obliged to prove that a person acted with corrupt intent and with a necessary connection with a specific procedure to bring such charges. She added that charges would not be filed for minor disturbances, especially if it cannot be proven that a person is acting with criminal intent.
Jackson also addressed fears of overbroad use of the statute, saying she “struggled with the jump from” the document focus of 1512(c)(1) to the government’s broad interpretation of 1512(c) (2). includes “all obstacles in whatever form.”
Jackson appeared to seek a middle ground, arguing that the court could limit the scope of the provision at issue without leading to the dismissal of the charges against the January 6 participants. Because the insurgents were trying to delay the war, hinder it, and possibly steal or destroy it election ballotsWouldn’t a document-based interpretation of the statute allow many of these prosecutions to proceed, Jackson asked.
“Yes, these would probably be viable charges,” Prelogar said.
Jackson was not alone in raising questions about whether all charges would be dismissed if the court reached a more limited decision that partially sided with Fischer. Judge Amy Coney Barrett, a conservative, also asked this question early in the arguments.
“Let’s imagine we agree with you,” Barrett told Fischer’s attorney Green. “On remand, do you believe that the government might make an attempt to prove that your client actually attempted to interfere with… or obstruct evidence because he attempted to impede the arrival of the certificates – which were sent to the office of the vice president came to count? ”
Groen disagreed with this theory.
“This statute prohibits the use of specific evidence in any way, shape or form,” Green said. “Trying to stop votes being counted or something like that is a very different act than actually altering a document, altering a document or creating a fake new document.”
By the end of the argument, it appeared the justices would side with Fischer one way or another and limit the government’s use of 1512(c)(2) in the January 6 prosecutions. The only question is how they would do that.
A stricter ruling, following Jackson and Barrett’s lead, could leave a possible route open for the government to pursue some prosecutions as long as intent to obstruct the certificates can be shown. A broader ruling, which other conservatives seemed to want, would likely lead to the dismissal of hundreds of charges against insurrectionists — including Trump.
The court will rule in the case no later than June 30.
