The Supreme Court’s January 6 Decision Is a Plain Misreading of the Law
7 min read
Today, in Fischer v. United States,the Supreme Court ignored the clear language of a federal obstruction-of-justice statute to hold that the January 6 rioters who breached Capitol barricades, assaulted police officers, broke doors and windows, and forced members of Congress to flee for their life did not “obstruct or impede” the congressional proceeding to certify the election.
This 6–3 decision, authored by Chief Justice John Roberts, can’t be squared with the language of the statute—or with common sense.
The justices purport to believe in textualism, an approach to the law that says that when interpreting a statute, a judge should first defer to the plain language as written by Congress. But the mental gymnastics employed by the Court to reach the result in Fischer highlight how this Court often only pretends to deploy textualism in pursuit of its preferred outcome.
The statute at issue in Fischer,18 U.S.C. 1512(c), reads:
Whoever corruptly —
(1) 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; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
This language is very clear. Subsection 1 prohibits obstructing a proceeding by tampering with physical evidence, and Subsection 2 is a catchall that prohibits “otherwise” obstructing a proceeding through means not encompassed by Subsection 1. The words or and otherwise signify alternative ways to violate the law.
Together, the two subsections prohibit all potential means of corrupt obstruction. As Judge Florence Pan wrote when the D.C. Circuit upheld the charge against Joseph Fischer, the language is broad, but it is not ambiguous.
A riot that forcibly shuts down a proceeding is an act that “otherwise obstructs” and impedes that proceeding. That’s what the U.S. Court of Appeals for the D.C. Circuit found, along with 14 of 15 federal district-court judges in D.C. That’s the most natural reading of the statute. It’s also reasonable that Congress would have wanted such a violent assault on its own proceedings to be prohibited.
That should be the end of the inquiry. The Supreme Court has said, time and time again, that when it interprets a statute, the Court assumes that Congress meant what it said and said what it meant. Just two weeks ago, in a case holding that assault rifles with bump stocks are not “machine guns” under federal law, Justice Samuel Alito wrote that even though Congress may not have desired that result, “the statutory text is clear, and we must follow it.”
To be sure, sometimes the meaning of a statute is unclear. In such cases, judges may rely on canons of statutory construction (with such unpronounceable Latin names as noscitur a sociis) to ascertain Congress’s meaning. Courts may also look to external sources, such as the statute’s legislative history. But such interpretive tools are supposed to come into play only when there is true ambiguity; if there is none, the plain text controls.
In Fischer, the Court instead used those rules to create ambiguity where none exists, and then went on to give the statute a new meaning—one that the Court prefers. The Court said, in effect, that “otherwise” actually means “similarly.” It held that Subsection 2 is limited by Subsection 1 and applies only to obstruction that impairs the availability or integrity of evidence in a proceeding.
In her compelling dissent, Justice Amy Coney Barrett accused the majority of engaging in “textual backflips” to find some way to narrow the statute, because it “simply cannot believe that Congress meant what it said.” Barrett argued that the case against Fischer should be “open and shut.”
The majority claimed that its interpretation makes more sense because it reduces internal redundancies and overlap within the federal obstruction of justice statutes. But as Barrett argued and the majority conceded, substantial overlap among those different laws remains even under the majority’s interpretation. (This is a chronic problem in the obstruction statutes. The overlap and internal redundancies in this section of the criminal code may be an argument for legislative reform, but they provide no legitimate basis for ignoring the plain language of one of the code’s provisions.)
The Court’s other primary concern was about how the statute might be applied in future cases. The conduct of Fischer and other defendants who violently assaulted police officers during the riot was patently criminal. There is no concern that applying this obstruction statute to their conduct would infringe on some legitimate, protected activity.
But the majority argued that if it accepted the government’s interpretation of the statute, in future cases a lobbyist who persuaded a member of Congress to oppose a controversial bill might be charged with corruptly influencing a congressional proceeding. Peaceful protesters who stood up and temporarily disrupted a hearing, the Court feared, might face the same charge.
There’s no evidence that such prosecutorial abuses of the statute occur or will occur. This law has been on the books for more than 20 years, and prosecutors haven’t brought the kinds of cases the Court claims to fear. Other obstruction statutes that similarly prohibit corruptly interfering with congressional proceedings have been on the books for decades longer, and prosecutors have not used them to go after legitimate lobbyists or peaceful protesters.
It’s true that many benign or constitutionally protected ways to influence an official proceeding exist. But other requirements of the statute—particularly the requirements of corrupt intent and a sufficiently close link to a particular proceeding—limit the reach of the law’s prohibitions.
White-collar statutes tend to be written in broad terms to encompass different types of potential criminality. A key part of the prosecutor’s job is the exercise of prosecutorial discretion: deciding which cases that could potentially fall within the terms of a criminal statute actually justify prosecution. These decisions are guided by Justice Department policies and history and ultimately rest on the judgment and experience of the professional prosecutors tasked with enforcing those laws. (As a federal prosecutor at the U.S. Attorney’s Office in D.C. for more than 12 years, including eight specializing in federal white-collar crime, I saw and participated in such decisions every day.)
This sound exercise of prosecutorial discretion has been on display in the January 6 prosecutions themselves. More than 1,400 individuals have been charged with crimes related to the riot at the Capitol. But only about one in four have been charged under the obstruction statute at issue in Fischer. Federal prosecutors have exercised their discretion and brought that charge only in the cases where it was appropriate—where defendants engaged in conduct that was violent or otherwise clearly unlawful, and where prosecutors believed that the “corrupt intent” to obstruct the vote count was clear.
This is the nature of prosecutorial discretion. And this Court clearly no longer believes in it. So rather than focus on Fischer’s conduct, the Court conjured fantasy future prosecutions of lobbyists and peaceful protesters and concluded that it must rewrite the statute to make sure they don’t occur.
This is unfortunately common for the Court. In white-collar cases, it regularly cites imaginary, trivial prosecutions that would never be brought in real life and then argues that it needs to narrow the law to prevent future prosecutors from bringing them. It did the same thing earlier this week in Snyder v. United States, limiting the scope of a federal corruption law.
The Court’s assault on prosecutorial discretion may not be consistent with the statutory language, but it is consistent with another theme in the Court’s jurisprudence: its ongoing attack on the executive branch. Also today,the Court overruled the 40-year-old Chevron case that required courts to defer to agency interpretations of federal statutes within their jurisdiction. The elimination of so-called Chevron deference says, in effect, “We can’t trust experts at the FDA or EPA to make policy decisions in the area of their expertise; federal judges should make those decisions.” And a case like Fischer effectively says, “We can’t trust federal prosecutors to make sound decisions about how they enforce the statutes that Congress has written, so we’ll make those decisions for them.”
Yesterday, Justice Sonia Sotomayor made a similar point in her dissent in SEC v. Jarkesy, which held that those subject to SEC enforcement actions are entitled to a jury trial: “Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best.”
A Court with respect for separation of powers and the proper role of the judiciary would simply apply the clear language of the obstruction statute that Congress wrote, recognizing that the executive branch has the obligation to decide when it’s appropriate to enforce that statute. If prosecutors actually misuse the law in particular cases, the courts are well equipped to respond. If there’s a trend of improper enforcement, Congress can amend the law.
Instead, the Court enforces the terms of the statutes that it likes and rewrites those that it doesn’t. It disregards the will of Congress and ties the hands of prosecutors in all cases based on hypotheticals divorced from the facts before it. And in the process, it further increases its own power at the expense of the other two branches of government.
True textualism holds that a court does not legislate but simply applies the laws as written by the legislature. It’s a doctrine about judicial humility.
But this Supreme Court is anything but humble.
