WASHINGTON (CN) — With two weeks remaining in the Supreme Court’s term, one remaining case has the potential to upend the Justice Department’s prosecution of the Jan. 6, 2021, attack on the U.S. Capitol.
The case, Fischer v. USA, questions whether a key felony charge at the heart of the Jan. 6 prosecutions — and two of Donald Trump’s charges in special counsel Jack Smith’s election interference case — was wrongfully applied to the Capitol riot and its perpetrators.
According to the Justice Department’s most recent monthly update, more than 355 Jan. 6 defendants have been charged with obstruction of an official proceeding, approximately 1/4 of the total 1,457 defendants who have been charged in connection with the riot.
The Supreme Court’s decision could throw a wrench into the largest criminal investigation in the Justice Department’s history, but experts say it is unlikely to result in much change in the sentences of most defendants.
Mary McCord, the former acting assistant Attorney General for national security in 2016 and 2017 and executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law, said in an interview with Courthouse News that while there will be a wave of court filings, the impact will be “pretty minimal.”
“This is a pure question of statutory interpretation,” McCord said. “Even if the Supreme Court were to narrow it, I don’t think any justice is going to be saying or writing that the conduct was okay. I think all they’d be doing is saying that ‘we don’t think this is what Congress intended this to be applicable to.’”
Title 18 U.S. Code, Section 1512, the violation of which is charged as obstruction of an official proceeding, was created in the wake of the Enron accounting-fraud scandal to target witness tampering and the destruction of documents that would assist in a judicial proceedings.
While the statute primarily focuses on the obstruction of judicial activities like investigations, it also later defines an official proceeding to include “a proceeding before the Congress.”
The specific section used by the DOJ in prosecuting Jan.6 defendants, 1512 (c)(2), expands the statute’s coverage to any action that “otherwise obstructs, influences or impedes any official proceeding.”
McCord said that about half of the defendants who have been charged with obstruction have pleaded guilty to the charge on the condition that if 1512 were to be overturned, the Justice Department could revive one of their dismissed charges. In a world where the justices narrow 1512’s use, these defendants would negotiate a new plea agreement.
For those who have been convicted via trial and since been sentenced, almost all were charged with another felony in addition to 1512, most often assaulting a police officer or civil disorder.
McCord said that those defendants would be resentenced, but would likely receive a similar sentence the second time around, as the judges had already considered the full extent of their conduct and have rarely ordered a period of incarceration near the 20 year-maximum for 1512, most often ordering periods of incarceration in the single digits.
Some federal judges have said so explicitly in recent months after the Supreme Court took up review of the charge, including Chief U.S. District Judge James Boasberg.
During a Jan. 24 sentencing hearing for Washington state Proud Boy Marc Bru, Boasberg said that “even if 1512 were vacated, the sentence would be the same.”
In his now-paused federal election interference case, two of the four charges Donald Trump faces are connected to 1512, conspiracy to obstruct an official proceeding and outright obstruction.
While the bigger question facing Trump’s increasingly unlikely trial over his efforts to overturn his 2020 electoral defeat remains whether the justices will accept his claims of presidential immunity from criminal liability, a decision in Fischer will apply to his case.
McCord said that, considering much of the conduct claimed in Smith’s indictment relate to Trump’s scheme to create false documents to obstruct the counting of the Electoral College votes, Smith’s charges would likely still stand even if the justices were to narrow 1512’s applicability.
Joseph Fischer, a former Pennsylvania police officer and the plaintiff in the case, was arrested in 2021 and charged with obstruction of an official proceeding and assaulting police officers. Fischer contested the charge, arguing that he was pushed into the police line by the crowd and exited the Capitol building only four minutes later, after being pepper sprayed.
U.S. District Judge Carl Nichols, a Trump appointee, dismissed the obstruction charge, ruling that the statute is limited by the previous subsection and therefore should only apply to evidence tampering that obstructs an official proceeding.
A three-judge panel of the U.S. Circuit Court of Appeal for the District of Columbia reversed Nichol’s decision in a divided 2-1 ruling, upholding the Justice Department’s interpretation of the statue as clearly applying to the Capitol riot.
In his appeal to the Supreme Court, Fischer argued that the DOJ’s interpretation of the statute creates a charge with a “breathtaking” and unconstitutional scope, well beyond the intended aim to protect the integrity of investigations and evidence.
In Fischer's view, Congress defined official proceedings primarily as judicial activities, with any application to a Congressional proceeding being limited to acts that interfere with investigations and the collection of evidence.
That interpretation, he argued, should not include the Congressional certification of the 2020 election, a legislative act.
The Supreme Court has 23 remaining cases, and likely 21 remaining options to issue, before the term ends June 28.
Opinions are scheduled to be released this coming Thursday and Friday, with another planned opinion day next Thursday. The court will likely schedule another opinion day next Friday, but has thus far waited for the week to begin before scheduling.
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