The U.S. Supreme Court hears arguments Tuesday in a case testing a statute used to prosecute hundreds of defendants charged with invading the Capitol to stop the counting of electoral ballots for president in 2020. That statute is also the basis for one of the four obstruction counts brought against former President Donald Trump in the criminal case currently pending against him in federal court in Washington.
The man at the center of Tuesday's case, though, is Joseph W. Fischer. He was a police officer in a township near Harrisburg, Pa., when he joined the mob inside the Capitol on Jan. 6. He, like 352 other defendants, was charged with obstructing or attempting to obstruct an official congressional proceeding.
In Fischer's case, however, a federal judge ruled that the obstruction statute was meant to apply to destruction of documents and records, not events like those on Jan 6. A sharply divided federal appeals court reversed that decision, and Fischer appealed to the Supreme Court, which hears arguments in the case Tuesday.
Because Fischer's case is in limbo, he has not been tried yet. But it is uncontested that while he was not part of the mob that first breached the Capitol, he soon joined the riot. At the Capitol, he even recorded a four-minute cell phone video in which he either knocked police officers to the ground or was pushed into the line of police officers, with the same result. The video he made is under seal and cannot be viewed by the public.
According to the government, Fischer, in text messages, threatened violence prior to Jan. 6, including a text in which he wrote, "take democratic congress to the gallows....can't vote if they can't breathe lol." And when the FBI came to arrest him later, he shouted profanities at the agents and at his own police chief, and sought to conceal the phone he had used at the Capitol.
The facts of the case
That said, the only question before the Supreme Court Tuesday is the applicability of the statute used to charge him, and several hundred others, with obstructing a congressional proceeding.
The first section of the law makes it a crime to corruptly alter, destroy or conceal records or documents with the intent to make them unavailable for use in an official proceeding. The second section — the one at issue here — makes it a crime to "otherwise" obstruct or impede any official congressional proceeding, or attempt to do so.
Lawyer Jeffrey Green, representing Fischer, will tell the Supreme Court that when Congress enacted those provisions, its aim was to plug loopholes in the federal criminal statute, loopholes that were highlighted by the 2001 Enron scandal, which involved massive fraud, document shredding and fabricated financial records by the company and its accounting firm.
Green says Congress knew back then that the country was at the dawn of a new electronic age, and the addition of the word "otherwise" to the statute was meant to capture the digital "unknown," meaning not just paper trails, but electronic records.
Congress added this "little hedge," Green contends. "It said, if you...do this altering, manipulating, destroying, concealing documents, if you do it in some other way," that's also a a crime.
The legal arguments
Congress's intent was not nearly so narrow, replies NYU law professor Andrew Weissmann. In 2002 he was a three-year veteran of the Justice Department's Enron task force, and he worked with the Senate Judiciary Committee on language for the bill. He says it wasn't just the document destruction provision that the Justice Department wanted to fix. It was the obstruction statute generally.
"There were all sorts of things that ... needed to be cured," Weissmann says. "I remember this was like, how do we make these as broad as possible. ... The idea that this was tethered to only documents, I think, is just wrong."
Lawyer Green replies that Congress never intended such a huge fishing net for prosecutors to use. He contends that there are different statutes that cover disrupting Congress. But those have much more lenient penalties; indeed two of the other charges against Fischer have no jail time specified. In contrast, this charge has a maximum penalty of 20 years in prison, though typically first-time offenders have been sentenced to between one and four years in prison.
"It's all about what happens at the table during plea bargaining," says Green. "That's a really big cudgel for the government to have."
In short, he argues that prosecutors have charged some of the lesser Jan. 6 defendants under this statute precisely because it gives prosecutors leverage in plea bargaining. The statute, he says, has never been used to apply to this kind of conduct before.
But in a brief siding with the government, a group of two dozen well-known and highly regarded former Republican officeholders and Justice Department officials counters that there's a reason this is the first time this statute has been used in this manner: to deter this kind of attack from ever happening again.
"Nobody had invaded Congress before Jan. 6th," observes Richard Bernstein, who wrote the brief. "If the crime is unique, it's not much of an argument to say...well this has never been prosecuted before." And he maintains the statute at issue here clearly gives prosecutors the latitude to punish a violent attempt to prevent Congress from counting the votes for president and vice president.
Now the Supreme Court will decide the scope of the law. It's unclear what a decision in Fischer's favor would mean for the 162 Jan. 6 defendants who have already been convicted of charges that included this statute. The government has asked the court not to dismiss the cases so that prosecutors can decide whether to pursue other charges if necessary in the event of an adverse decision. But many defendants have already been sentenced; some have served their time; and after the Supreme Court agreed to hear the Fischer case in December, some judges ordered the conditional release of some defendants pending the outcome of the high court ruling.
Were the Supreme Court to fully reject the Justice Department's position in the case, it would have "a devastating effect on the prosecution side" in the Capitol attack, warned federal district court Judge Thomas Hogan, a Reagan appointee who sentenced 26 Jan. 6 defendants prior to his recent retirement.
As to whether the statute could be used against Trump if the court interprets the statute narrowly, special counsel Jack Smith contends that documents involving the former president's fake elector scheme do, even under Trump's reading, provide the necessary link under the statute.
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