Jan. 6 Case Pulls Conservative Supreme Court in Two Directions

The US Supreme Court gets its first look at the legal implications of Jan. 6 in a case that pits cross-ideological concerns over expansive prosecutorial discretion against the conservative justices’ fidelity to the words of a statute.

At issue in the case set for argument April 16 is whether the Justice Department went too far in charging some Capitol riot defendants with an Enron-era statute aimed at curbing evidence destruction, which carries a hefty 20-year maximum sentence.

Those urging the justices to rein in prosecutorial power say the Justice Department dusted off an ill-fitting statute in order to concoct charges against defendants. That includes former President Donald Trump, who’s charged with election interference.

The argument in the case brought by former Boston police officer Joseph Fischer, who breached the Capitol, could resonate with a conservative-led court that’s been skeptical about the Justice Department overreach in white collar cases. At the same time, the way the statute targeting obstruction of an “official proceeding” is phrased could make it hard for conservative justices to discount altogether.

It’s “hard to game out how the court weighs those equities,” said Donald Sherman, the executive vice president and chief counsel of Citizens for Responsibility and Ethics.

The watchdog group was behind the bid to keep Trump off the Colorado primary ballot in Trump v. Anderson because of his actions on Jan. 6. They’ve also filed an amicus brief in Trump’s immunity suit, Trump v. United States, arguing that the former president can be held criminally liable for his efforts to overturn the 2020 presidential election.

Ill-Fitting Charge

Those supporting the Jan. 6 defendants are hoping to tap into some of the justices’ recent concerns over rogue prosecutors and the ever-growing number of criminal penalties.

The “case is very much in the line” with “past white collar criminal cases where the DOJ has stretched the meaning and application of federal criminal laws beyond reason and beyond the intent of the Congress that passed the laws,” said attorney Theodore Cooperstein. He filed a brief on behalf of other Jan. 6 defendants charged under the same law.

The law at issue prohibits individuals from corruptly obstructing an “official proceeding.” About one in four Jan. 6 defendants have been charged under that provision.

It’s part of a measure passed after the 2007-2008 financial crisis to discourage the destruction of evidence related to corporate malfeasance.

Cooperstein and others say it’s unfair to apply the law to the Capitol riot.

The law “is a direct result of the Enron scandal,” Cooperstein said, and previous Supreme Court cases show that it can’t be read without an underlying understanding of what Congress was trying to prohibit.

He pointed to Yates v. United States, in which federal prosecutors charged a fisherman under a similar provision for throwing back undersized fish to avoid prosecution. The closely divided Supreme Court ruled that was overreach.

Although the relevant language of “tangible object” in Yates could be read broadly to include fish, a majority of the court found that such a broad interpretation would cut the law “loose from its financial-fraud mooring.”

Yates and other Supreme Court cases show the true purpose and limitations of the evidence statute, and “give some sense of how it really doesn’t fit in this situation at the Capitol grounds where a crowd trespassed and some entered the building,” Cooperstein said.

“No protestor on January 6, 2021, had warning that a political protest that ran out of control equated to a 20-year felony for destruction of evidence or threatening witnesses,” he said in his brief.

Matthew Seligman of Stris & Maher, who filed a brief in favor of the prosecutions going forward, said it’s hard to take that argument seriously since no one involved in the Capitol riots could have thought they were acting lawfully. And it’s never been the law that defendants must know the exact statute under which they might be charged, Seligman said.

Deliberately Broad

Those backing the Justice Department say it’s not prosecutorial overreach if the defendants’ conduct is what Congress intended to outlaw. And because textualists often say the best way to discover congressional intent is to look at the words legislators used, this should be an easy case for them.

“True textualists look down their nose” at things like legislative history, saying the words of the statute should control, said George Washington University law professor and former federal prosecutor Randall Eliason. In Fischer’s appeal, the defendants’ conduct can easily fit within the intentionally broad language of the statute, which “should be the end of the inquiry,” Eliason said.

Seligman said Congress deliberately wrote a statute that is “broader than the specific facts that inspired passage of the law.”

The residual clause under which Jan. 6 defendants were charged prohibits “corruptly” obstructing, influencing, or impeding “any official proceeding.”

It’s like many other catch-all statutes intended to capture unforeseen events and read to encompass a broad range of activity, Sherman said.

Moreover, Congress’ broad intent is enforced by the fact that a contrary reading of the statute would lead to absurd results, Eliason said.

The rioters wouldn’t violate the law “by violently storming the Capitol, assaulting police officers and breaking doors and windows, to shut down the proceeding,” Eliason wrote on his blog. “But if in the process they also happened to destroy a chart that was being used as an exhibit, then their actions would fall within the statute.”

Those “results are crazy if what Congress is worried about is obstructing proceedings,” Eliason told Bloomberg Law.

The case is Fischer v. United States, U.S., No. 23-5572, to be argued 4/16/24.