The fates of hundreds of Jan. 6 defendants lies with the Supreme Court, which will hear a case Tuesday arguing that the obstruction law under which they were charged was never meant to apply to the attack on the U.S. Capitol.
If the justices rule that prosecutors have stretched the law too far, then it could also help former President Donald Trump, who faces conspiracy charges under another section of the same law.
At issue is a law enacted in 2002, in the wake of the Enron scandal, giving the government new tools to prosecute those who obstruct an official proceeding.
The Biden administration says the Electoral College vote count at the Capitol in 2021 was an official proceeding.
Joseph Fischer, one of those convicted under the law, says the statute was intended to snare people who try to destroy evidence of corporate fraud cases, such as document shredding. Actions at the Capitol that day fall far outside that law, his attorneys argue.
Special counsel Jack Smith has charged Mr. Trump with the same charge and another under a “conspiracy” section of the law for his actions on Jan. 6, which Mr. Smith says were an attempt to subvert the counting of the Electoral College votes.
Theodore M. Cooperstein, who represents some Jan. 6 defendants, said proving the conspiracy charge would be difficult for Mr. Smith if the Supreme Court rules that the law doesn’t apply to those who stormed the Capitol, meaning the vote count doesn’t qualify as an official proceeding under the statute.
“Conspiracy is dependent on the substance of what you are conspiring to do,” he said. “It really does take a weapon out of their arsenal.”
If that is the case, then two of the four charges against Mr. Trump in his federal election fraud case could be eliminated.
Mr. Smith argues that the charges stand regardless of the ruling in Fischer’s case. In a brief in another Supreme Court case involving Mr. Trump’s claims of immunity from prosecution for acts taken while president, Mr. Smith said the “Section 1512 charges in this case are valid” no matter which interpretation the justices adopt.
Fischer, a former police officer, attended the “Stop the Steal” rally on the Ellipse near the White House on Jan. 6, 2021. He and a companion then left town. After learning of the crowd at the Capitol, they returned, though not until after the Electoral College counting had been suspended.
Fischer entered the Capitol, made it about 20 feet into the building and was pushed by the crowd into a line of officers using pepper spray. He then left the building. He was inside for four minutes.
Federal authorities charged Fischer with seven counts related to the Jan. 6 attack, but the one before the justices is Title 18, Section 1512(c), which 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.”
A U.S. district judge in the District of Columbia sided with Fischer and dismissed the charge, ruling that the law didn’t apply to the events of Jan. 6. The circuit court reversed that decision.
Judges debated whether the word “otherwise” means the second part of the statute modifies the first or whether it is independent.
The charge was brought against more than 300 of the roughly 1,200 Jan. 6 defendants. The Associated Press reports that at least 152 have been convicted or pleaded guilty and 108 of them have been sentenced.
U.S. Solicitor General Elizabeth Prelogar argued in briefs to the justices that while Congress may have written the law after Enron’s document shredding, the language is broad enough to encompass the hours of disruption of the vote counting to determine the next president.
“The text, context, and history of 18 U.S.C. 1512(c)(2) establish that it functions as a catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding,” she wrote.
Fischer’s attorneys called Ms. Prelogar’s statement an “unprecedented reading” and said the point of the law was to punish people who tampered with official investigations. To broaden the law to any “proceeding” would open the door to all sorts of prosecutions for protesters who interrupt a congressional hearing or a member of Congress who delays a floor vote.
“Until the January 6 prosecutions, no one had extended subsection (c)(2) beyond instances involving evidence impairment,” they said in their brief.
Jeffrey Swartz, a professor at Cooley Law School and a former county court judge in Miami-Dade County, Florida, said a ruling for Fischer doesn’t automatically exonerate Mr. Trump of the conspiracy charge. He said igniting the mob — the basis for the charge against the former president — isn’t the same as a man who spent four minutes in the Capitol.
“There is a substantial difference between those two,” Mr. Swartz said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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