The Supreme Court's Fischer v. United States ruling narrowing federal prosecution of certain obstruction charges could still allow the Justice Department to pursue those charges against Jan. 6 rioters — and Donald Trump, according to a legal expert.
The lawsuit centers on the case of Joseph Fischer, who was charged for his conduct in the Jan. 6, 2021 breach of the U.S. Capitol.
Prosecutors hit Fischer with numerous charges, including violations of the Sarbanes-Oxley Act — which imposes criminal liability for anyone who tries to alter, destroy or conceal records concerning official proceedings.
Trump has been charged with the same offense in his federal election interference case, as have other individuals.
Under the court's ruling, prosecutors could still bring the charges against Fischer as well as Trump— if they prove the conduct involved "attempts to impair the availability or integrity of evidence," UNC School of Law professor Carissa Byrne Hessick told Salon.
"It's certainly possible," Hessick said. "The question is what sort of theory does the government advance that fits the new language, and then what evidence can they provide?
Specifically, the law targets 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."
Prosecutors charged Fischer with specifically violating the section of the law that extends that prohibition to anyone who "otherwise obstructs, influences or impedes any official proceeding, or attempts to do so." Violations of the law carry up to a 20-year maximum sentence behind bars.
Fischer tried to dismiss the obstruction charge and argued that the Sarbanes-Oxley Act only criminalizes "attempts to impair the availability or integrity of evidence."
The government argued that the "otherwise" clause "'capture[s] all forms of obstructive conduct" beyond the impairment of evidence.
The Supreme Court agreed with Fischer, and said the government's approach would "give prosecutors broad discretion to seek a 20-year maximum sentence for acts Congress saw fit to punish with far shorter sentences."
In a concurring opinion, Justice Ketanji Brown Jackson focused on Congress' intent and said that she thinks it's possible federal prosecutors could still convict Jan. 6 defendants on the charges.
"She makes the point that the case has to go back down to lower courts, that this is correctly instructing juries and that sort of thing," Hessick said.
Jackson said it's "highly unlikely that Congress intended" to establish a "first-of-its-kind general federal obstruction crime" that would do away with the need for any other obstruction laws.
Still, Justice Jackson pointed out that Fischer was charged with violating Congress' certification of the Electoral College vote.
"That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves," Jackson wrote in her concurrence. "And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding in ways other than those specified" in the federal law.
She concluded: "If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand."
And DOJ data suggests the court's ruling could be limited: an analysis by JustSecurity found the obstruction charge "materially affects at most only 5.9% of all Jan. 6th cases. Hessick said it's the latest example of the Supreme Court issuing narrow interpretations of federal criminal laws — a trend she said predates the Trump appointees.
"This is a political case and people are going to draw political conclusions from it," she told Salon. "I actually think the case fits rather easily into a broader trend of the Supreme Court being hostile to very broadly and unclearly written criminal laws over the past 15, 10 years."
Prosecutors say Fischer and others violated the law by forcing their way into the U.S. Capitol, breaking windows and assaulting police — all as part of a breach that delayed the certification of the vote. Fischer was also charged with six counts alleging he forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol — with those counts carrying penalties from six months’ to 8 years behind bars.
The justices in their 6-3 majority opinion, authored by Chief Justice John Roberts, focused on what the law meant by its use of "otherwise."
The section of the Sarbanes-Oxley Act at issue dates back to the Enron scandal, when prosecutors couldn't go after outside auditor Arthur Anderson for having "systemically destroyed potentially incriminating documents,'" the opinion said.
That's because the federal law did not impose liability on the person who destroys records. At the time, Section 1512 of the federal code imposed criminal liability on anyone who "knowingly uses intimidation or physical force, threatens or corruptly persuades another person" to shred documents, or take other steps.
"As a result, prosecutors had to prove that higher-ups at Enron and Arthur Anderson persuaded someone else to shred documents rather than the more obvious theory that someone who shreds documents is liable for doing so," reads the ruling.
The governor and the plaintiff agreed that Congress passed the Sarbanes-Oxley Act to close that loophole.
Roberts' opinion said it would be "peculiar" for Congress to have closed that loophole by creating a broad "catchall" that would extend beyond scenarios like document shredding.
"The better conclusion," reads the ruling, is that the law was "designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability beyond those Congress specified."
The ruling also said that the government's broad reading of the law would "criminalize a broad swatch of prosaic conduct, exposing activists and lobbyists to decades in prison."
