By Riley T. Keenan
The indictments – and in some cases, the convictions – of hundreds of people charged with participating in the riot at the U.S. Capitol on Jan. 6, 2021, will have to be reconsidered, and possibly dropped, because of a ruling by the U.S. Supreme Court on June 28, 2024. Among those charged using a broad interpretation of the obstruction law now narrowed by the high court: former President Donald Trump.
In its decision in Fischer v. United States, the Supreme Court held that a federal statute that prohibits obstructing an official proceeding may not apply to three defendants who were charged with participating in the U.S. Capitol riot. Although former President Donald Trump is not a defendant in the case, special counsel Jack Smith has charged him separately with violating the same statute.
As a law professor who teaches and writes in the fields of constitutional law and federal courts, I’ll explain what the court’s decision means for Jan. 6 defendants – and for Smith’s case against Trump.
Charges against Capitol rioters
According to their indictments, Joseph Fischer, Edward Lang and Garret Miller were present at the Capitol on Jan. 6, 2021. Prosecutors say that all three men entered the Capitol building and assaulted police officers during the riot. One of the men, Lang, brandished a bat and a stolen police shield, and another, Miller, later called for the assassination of U.S. Rep. Alexandria Ocasio-Cortez on social media.
Federal prosecutors charged the three men with various crimes, including assault on a federal officer, disorderly conduct on the Capitol grounds and obstructing a congressional proceeding. That last charge is the one at issue in the Supreme Court appeal.
Before trial, the defendants argued that the law the prosecutors had used to charge them with obstruction applied only to evidence tampering, not the violent disruption of a congressional proceeding. The district court agreed and dismissed the charge, but the U.S. Court of Appeals for the D.C. Circuit reversed and sent the case back for trial.
The Supreme Court then agreed to hear the case, putting the trial on hold while it considered the dispute over the scope of the obstruction law.
Defining a catch-all term
In a 6-3 opinion by Chief Justice John Roberts, the Supreme Court agreed with the defendants and held that the statute prohibits only evidence tampering. It then sent the case back to the appeals court to decide whether the defendants violated the law under that narrower reading by trying to prevent Congress from receiving and certifying the states’ true electoral votes.
The court began with the text of the obstruction law. The law penalizes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object” or who “otherwise obstructs, influences, or impedes any official proceeding.” The government argued that the defendants had “otherwise obstruct(ed)” proceedings in Congress to certify the results of the 2020 election.
But the court rejected that argument, holding that the phrase “otherwise obstructs” refers only to obstruction that – like altering, destroying, mutilating or concealing a record, document or object – impairs the availability or integrity of evidence for use in an official proceeding. The law’s catch-all for “otherwise obstructing” an official proceeding must be read in common with the list of actions that precedes it, the court explained. Otherwise, the list would be redundant.
The court also pointed to the law’s historical background. Congress, the court explained, enacted this specific obstruction law in 2002 in the wake of the Enron accounting fraud scandal. Its aim was to fill a gap in the nation’s existing obstruction laws, which at the time prohibited directing a third party to destroy incriminating evidence but not destroying the evidence oneself.
The government’s reading of the law, the court explained, would stretch it far beyond that purpose, prohibiting forms of obstruction that had nothing to do with evidence and that Congress never intended to criminalize.
What this means for Jan. 6 defendants – and for Trump
Alex Wong/Getty Images
The Supreme Court’s decision does not end the case against the Fischer defendants, who will likely stand trial on their assault and disorderly conduct charges.
But it may lead to the dismissal of obstruction charges, or reversal of obstruction convictions, for other Jan. 6 defendants. According to an NPR database, federal prosecutors have charged at least 250 other defendants with obstruction of an official proceeding, and 128 have been convicted.
The ruling may also undermine special counsel Jack Smith’s case against former President Donald Trump, whom Smith has charged with obstruction under the same law. If that case survives a separate pending Supreme Court appeal, the former president will likely seek dismissal of that charge.
Trump may not succeed, however, as the obstruction charge against him is based in part on the allegation that he organized slates of electors to certify false election results to Congress. That may amount to impairing the integrity of the evidence used in the certification proceedings.
And the obstruction charge is also not the only count the former president faces. But the ruling may narrow the case and make it more difficult for the special counsel to present evidence to the jury concerning the violence that occurred on Jan. 6. Under this new ruling, that violence alone may not count as obstruction.
The Fischer case also shows how sometimes, especially in high-stakes cases, the justices can use methods of legal reasoning that they are quick to criticize in other contexts. In the opinion, members of the Supreme Court’s conservative majority cited the legislative history of the obstruction law – evidence that conservative jurists such as the late Justice Antonin Scalia often called unreliable.
The Supreme Court’s decision in the Fischer case may have a profound effect on the special counsel’s historic prosecution of former President Trump.
But even if it does not, it still sheds important light on the court’s inner workings and the federal government’s power to safeguard the integrity of its proceedings.
Riley T. Keenan is Assistant Professor of Law at the University of Richmond.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
NJ says
Thank God the constitutional RIGHTS of ALL Americans are being PROTECTED by this Supreme Court Ruling!
James says
Please be more specific?
Ray W. says
Please consider, James, the concept of hegemonic liberty, which is but one of the four liberty traditions that made their way to colonial America from four different regions of Great Britain. Hegemonic liberty is a unique and very narrow form of liberty that works for only a certain few people. As an aristocratic colonial-era Virginian put it: “I love liberty. I hate equality.” NJ presents as a commenter who believes wholeheartedly in hegemonic liberty, i.e. the liberty of the privileged few.
NJ reminds me of the Moral Majority of my youth. That politicized form of belief was never moral, nor was it ever the majority, but they said it was so, over and over again. A factual falsity became a political truth. Were NJ to ever be more specific, as you ask, he would destroy his argument. The ruling on which NJ bases his claim applies to a very small class of people, and it affects the right of that small class of people to act in ways that prosecutors once thought and argued criminal. The court declared some of the prosecutorial decisions error.
Courts declaring prosecutorial decisions error is nothing new. Prosecutors are supposed to stretch the meaning of the law. How else can a prosecutor meet the definition of zealous advocacy? Sometimes, the stretch defies the original intent of the statute. The original Racketeer Influenced and Corrupt Organizations Act (RICO) was designed to address mob activity, otherwise known as organized crime. Now, prosecutors routinely think nothing of using it to imprison a couple of drug dealer wannabes who can’t even organize a job interview.
When I was a prosecutor, I, too, occasionally tried to stretch the law. Decades ago, I prosecuted a truck owner for manslaughter.
I had evidence that, if accepted by the jury as true, established that the owner of the truck was asleep in the cab when his employee drove it without rear lights of any kind south on I-95 at 35 mph long before dawn. A motorist on his way to OIA never saw the truck and drove straight onto two frame rails that protruded from the back of the truck. One of the beams penetrated the dashboard and impaled the driver through his chest.
The owner had bought an aging ice cream box truck in New Orleans, where he had cut the box off the frame rails. The box contained all the rear lights. He had been stopped in Jacksonville by a trooper. During the stop, a call came in that another trooper had been involved in a crash. He left the owner and driver to respond to the accident. Before leaving, he told them to get off the interstate and drive the blue highways to Miami.
The owner had reserved a shipping container at the Port of Miami to ship the truck to Haiti. The only way he could get to Miami in time to meet the shipping deadline at the top speed of the truck (35 mph) was to take the interstate through the night.
The defense bar howled at my decision. How could I prosecute an owner who was asleep? The driver was the culpably negligent criminal!
I attended a criminal defense lawyers’ dinner (I had previously been the president of that organization before returning to prosecution), where many defense attorneys came up to me to criticize my decision. My prosecution was the theme of the night. Like always, 30 days later, a different prosecutor was public enemy #1.
After conviction, the owner appealed. The 5th DCA upheld my theory of prosecution.
Criminal laws, by definition, cannot be so specific as to target only one person. A statute cannot hold that it is a crime for James to drive a car at 5:00 pm on Tuesdays. That would be too narrow. Neither can a criminal statute be so broad as to cover everyone. A statute cannot hold that it is a crime for anyone to drive anywhere. Prosecutors live in the middle ground. They can be accused of wrongly targeting specific people. They can be accused of wrongly targeting everyone. Judges commonly deal with claims of overly broad or overly narrow prosecutions; they tell us who is right.
As my father told me before I went to law school in the early 80’s, the law is what a judge says it is on the day he or she says it and don’t ever forget it. During my father’s first year of law school in the 1948-49 class year, one of his professors told the class that the phrase would be the most important thing the students could ever learn in law school. Seventy-five years later, the professor is still right.
The issue isn’t whether I agree or disagree with a ruling; that is a political issue in the FlaglerLive commentary setting. The issue is that NJ presents as someone who is willing to possess the right to define liberty, no one else has that right. Hence, hegemonic liberty. Others must have their definitions of liberty denied to them.
I will type this over and over again. There is an academic argument that colonial America saw four different liberty traditions at work when the Constitution was proposed: the Puritan “ordered” freedom; the Cavalier “hegemonic” freedom; the Quaker “reciprocal” freedom; and the backcountry “natural” freedom.
“Each of these four freedom ways still preserves its separate existence in the United States. The most important fact about American liberty is that it has never been a single idea, but a set of different and even contrary traditions in creative tension with one another. This diversity of libertarian ideas has created a culture of freedom which is more open and expansive than any unitary tradition alone could possibly be. It has also become the most powerful determinant of a voluntary society in the United States. In time, this plurality of freedoms may prove to be that nation’s most enduring legacy to the world.”
NJ’s view, should it ever prevail nationwide, could be the end of our “plurality of freedoms”, of our experiment in a liberal democratic Constitutional republic. We need the checks and balances, the “tensions”, inhering in the four freedom traditions of our colonial fathers to preserve our Constitution. No one political party should ever gain unlimited power for an indeterminate period of time.
I am not saying NJ is wrong. I am saying that the tension between competing liberty ideals is what makes America exceptional, or “great”, if you will. NJ cannot ever be allowed to win. Neither can he ever be forced to lose.
This is why I am a Hegelian. His famous trinity of Hypothesis, Antithesis, and Synthesis, to me, presents one of the more accurate philosophical depictions of human nature I have ever learned. Every proposed societal idea (hypothesis) automatically triggers in a populace an opposing societal idea (antithesis). The clash between the competing ideas produces an ever-changing synthesis. Society dies when one side wins. This is what astounded me when Justice Alito stated in a recorded social comment that one side needed to win. What was he thinking? How can a judge ever think that? We are supposed to disagree. We are supposed to compete. Our founding fathers called it “checks and balances.” We all lose when one side wins.
My reaction to the court’s ruling? The law is now narrowed enough to perhaps dissuade prosecutors, who are already susceptible of becoming fearful creatures of partisan politics, from fearlessly prosecuting novel theories of statutory construction.
In Section 812.12, the definitions section of Florida’s theft statute, a long list of former codified common law crimes is rolled into an overall theft act. “Theft”, at common law, was not a crime. Larceny was, as was conversion, and about a dozen other specific intent crimes. The definition of theft contains the language “Other conduct similar in nature.” Could this “catch all” language as the author puts it also be struck down by the Court’s ruling? Can every person facing a catch-all theft prosecution challenge it, on an as-applied basis?
I challenged the “catch-all” language fifteen years ago in the Herbert Heron prosecution in Flagler County. I argued that the former codified common law crimes had been rolled up into the general intent crime of theft. The trial judge partially agreed with me and gave me a special jury instruction that struck much of the definition’s language. The prosecutor was prohibited from presenting a broad theory of prosecution to the jury. But the judge didn’t give me everything I asked. I wanted a special instruction that the jury could not convict if they found the fraud to be in the performance of the contract, as opposed to fraud in the inducement to contract. I argued that fraud in the performance of a contract was civil, as applied to my client’s facts, not criminal.
This gets us into the impact of the 1965 publication of the Model Penal Code on poorly educated legislators, both state and federal, and what those many fools did to what were once codified common law criminal statutes, which may be far too dense a subject for this FlaglerLive commentary, other than to say that it is now possible to be put to death for committing an act that was never a specific intent crime at common law, under today’s revamped versions of felony murder. All because stupid legislators cannot understand the difference between a specific intent crime and a general intent crime.
Kill them all, the legislators sob, when they debate the death penalty statute. We don’t need unanimous 12-person penalty phase verdicts in Florida to kill people for committing general intent crimes, they cry.
In today’s Florida, a man can steal a watch in Walmart and run away when approached by security personnel. If he returns two days later still wearing the watch and pulls away from a security employee who tries to retrieve the watch, and the employee loses his balance and falls and hits his head and dies, the petit thief and subsequent resisting a merchant defendant can be put to death. Why? Our stupid legislature added “during the course of” to the robbery statute.
The intent to steal occurred two days earlier. The intent to resist the merchant occurred at the time of the fall and inadvertent injury. Two misdemeanors that once could not be combined into a codified compound common law felony can now be combined at a prosecutor’s discretion into a general intent felony that is called robbery, though today’s robbery is far different from the robbery of my youth. At one time, the robbery statute required proof that the force occurred “before or during the taking.” Now, the time frame can be widened to hours, to days, or to weeks, so long as a jury finds that the intent to pull away is “during the course of the taking.”
This applies to the “enters or remains in” language of the burglary statute that was added in the mid-80’s. A defendant who is invited to a party can enter a home, but if she gets drunk after hours of fun and frivolity and when told to leave, she thrashes about, and a guest or host inadvertently falls and hits his head during the commotion and dies, the thrashing guest can be put to death. Felony murder, the prosecutor will intone. The law once required entry by stealth or a forceful entry in order to prove burglary. Now, the time frame has widened to whatever time a jury will accept. A lawful entry can be converted into a burglary at will. The “enters or remains in” language permits the sanction.
James says
You’re a good man Ray W, thank you for trying to make sense of this commentor’s statement. But I would still like to hear exactly what he meant.
NJ might be a “bot” Ray, he’s made some rather over simplified statements elsewhere here in my opinion.
But nevertheless, we (and here I’m thinking more of myself, for I seem to have a tendency to do this… it’s a tendency that all “dreamers” have, although I never consider myself as such)all make the same perhaps wrong fundamental assumption.
That other people think as we do, that they have a common vision of what the world is like or should be like… and if not, that they are at least reasonable and accommodating to the visions of others.
But unfortunately, this is not the case.
One does not, nor will they ever truly know the reasoning and motivations behind the actions of their fellow men. The moral and intellectual “plane” or level on which they base their judgements… their means to their ends. It’s a delusion to think that these means, not to mention the ends are remotely the same as ones own. Nevertheless, you, I, and many others, too numerous to count throughout human existence have, and will make this assumption of our fellow man. One of the miracles of life is that there is indeed, occasionally a meeting of means and ends and thus common “trust.”
NJ’s comment was DOA (to me)… I never considered the rights of Trump, or anyone else to have ever been in jeopardy… if they were law abiding citizens.
Has he not put his rights in jeopardy of his own accord? Your response has clarified that… perhaps he is a “rebel with a cause” (as opposed to a rebel without one… as in the movie sense, not the civil war sense of rebel).
Furthermore, NJ thanked God.
And perhaps God does deserve all the thanks one can give. But wasn’t God looking out for the rights of all mankind already? Is it not God who is the ultimate judge of men and the only one to exact “vengeance” justly, with mercy that comes with only knowing the complete story?
And unfortunately putting things into a bigger historical perspective doesn’t help much, there is also three hundred years or so of history before the revolutionary war… an unfortunate triangle of gold, rum and slavery, amongst other things… not least of which, thievery on a grand scale.
Would Christ be happy?l’m thinking not so much… at least not the Christ I believed in.
Would God?
It was quite an education living here in Florida.
But I digress.
I’ll only reiterate what I think the English physicist
Freeman Dyson once said regarding man’s predicament… something to the effect… “How does anything get done?
How is man’s progress at all possible?”
A good question, for no two men are alike in mind and goals.
Just some opinions and observations.
Nothing more.
Deborah Coffey says
The liar, seditionist, rapist and fraudster certainly does have constitutional rights…and now, he has even more, the right to break any law he wants with all the immunity in the world. Good job Republicans! You chose a ruthless criminal felon nominee for POTUS. What does that say about YOUR character, Republicans?
James says
What’s now interesting… to me at least… is how powerful the “leverage” of the media is in recent political events.
By the one relevant fact in this piece… that there were hundreds of people arrested in connection with January 6th… not thousands, not hundreds of thousands, not a million. But a mere few hundred, in a country of several million.
Just as one bad night has called into question a man’s abilities to serve… and serve he does, even as I write this. To ask him to leave the race, is to ask him to leave office… now, not tomorrow.
For if he is incompetent… he is incompetent.
Just as Trump was, and always will be what he is… but makes for better entertainment?
And for the benefit of who? Or should I ask, who’s media?
Just an observation.
Laurel says
The law penalizes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object” or who “otherwise obstructs, influences, or impedes any official proceeding.” “…or impedes any official proceeding” apparently was ignored by the politicized *Supreme* Court. The six far right justices believe that the very people who’s charge it is to proceed with an official procedure, such as the certification of the electoral votes for the President of the United States, normally resulting in the peaceful transfer of power, were forced to run for their lives, including the now Republican Trump supporters, and hide under the Capital, was not impeding an official procedure? Five people died as a result of the Jan 6 Insurrection. People called for Mike Pence’s hanging. Insurrectionists crapped on the Capital floor, while they called out Naaaaancy, where are you? Seriously, this did not impede an official proceeding? Just another day at work?
Well, now the far right political justices can go home, fly Old Glory upside down, go on more luxury trips paid for by rich Republicans, and go drink beer and assault girls. No wonder Americans lose faith in the system. We’ve hit a new low.
James says
They’re just covering their asses Laurel. They put off any definitive answer so that Trump could buy some time, get elected and squash any further litigation against himself.
The part about “alterers, destroys or conceals records…” is their “ass cover” so that they can say…
“Hey, we sorta left open the door to prosecuting Trump on the documents case.
But, gee willikers!… it’s not our fault he really did pardon himself.”
Just say’n.
James says
“The Supreme Court Makes It Difficult To Prosecute Trump…”
In light of the news of the ruling this morning… truer words were never spoken.
Just my opinion.
Atwp says
He said they stole the election from him. Some of his mindless followers stormed the Capitol. Now it is very hard if not impossible to punish them. This country make it very easy for criminals to do wrong and get away with it. What a shame.
Marlee says
Ironic isn’t it?
Our Country will be celebrating the 4th of July in 2 days.
when…..the colonies separated from the grip of the British King.
now….the Supreme Court Ruling just created the President of the United States “King”.