The Supreme Court, in eviscerating decades of administrative law, running roughshod over women’s privacy rights and impeding the federal government’s power to regulate securities law, has aggrandized more power to itself than any court in history. However, in one tiny ray of sunshine, we saw on Friday in the Fischer case, that with the handiwork of Justice Ketanji Brown Jackson, the court’s avarice can be contained.
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Opinion | Ketanji Brown Jackson saves J6 and Trump prosecutions — for now
As a result of her vote, the court’s majority left prosecutions of felon and former president Donald Trump unchanged (for now) and severely limited any impact on hundreds of other Jan. 6 insurrection cases. A tiny fraction of the Jan. 6 defendants will actually be affected.
The obstruction statute 18 U.S.C. Section 1512 (c)(1), at issue in many Jan. 6 cases, prohibits “altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding.” The court had to decide what actions are covered by the subsequent Section 1512(c)(2), which penalizes conduct that “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
What does “otherwise” mean? The court declined to either take the broadest or most narrow definition available. Instead, it held:
As we have explained, subsection (c)(1) refers to a defined set of offense conduct — four types of actions that, by their nature, impair the integrity or availability of records, documents, or objects for use in an official proceeding. When the phrase “otherwise obstructs, influences, or impedes any official proceeding” is read as having been given more precise content by that narrower list of conduct, subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence — rather than altering incriminating evidence.
The crimes, such as creating false documents (say, phony electoral ballots), are covered, but general obstruction activities are not. The crime must be tethered to the objects and/or documents at issue in the proceeding.
The key to understanding the decision is Justice Ketanji Brown Jackson’s concurrence. She explained exactly what the court did:
Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral college vote.” That official proceeding plainly used certain records, documents, or objects — including, among others, those relating to the electoral votes themselves. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed.
In other words, even this defendant might still be convicted of conduct related to records, documents or objects in the congressional proceeding if he was seeking to destroy the electoral ballots. (Fischer was also charged with other conduct under other statutes.)
“As Justice Jackson’s concurring opinion makes clear, the Court’s interpretation of Section 1512(c) is still broad enough to cover Fischer’s alleged conduct,” constitutional scholar Matthew Seligman, who authored an amicus brief for the case told me. “By violently storming the Capitol, the violent Jan. 6 rioters impaired the availability of the electoral certificates that Congress convened to count — Senate staffers had to flee the building with the certificates so they weren’t destroyed.” In short, Seligman concludes that “while the Court narrowed the government’s expansive interpretation, it did so in a way that will affect few — if any — actual Jan. 6 cases.”
In other words, creating electoral vote slates (as Trump allegedly did) would still be prosecutable. This decision therefore has essentially no impact on Trump, who was charged with four criminal counts including 1512(c)(2) and conspiracy to violate 1512(c)(2). His alleged involvement in concocting false electoral slates falls four-square within the court’s ruling. (Depending on the fine print, the court’s immunity case could still restrict his prosecution.)
As for the rest of the Jan. 6 insurrection defendants, the Justice Department in a statement released after the decision made clear: “The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer.”
Just Security co-founder Ryan Goodman explains how the media exaggerated the impact of Fischer. “A quarter of [the defendants] pleaded guilty but NOT to obstruction,” he emphasized. “They pleaded to other charges. Those charges and those sentences are utterly unaffected by Supreme Court’s ruling.” It is really a sliver of a sliver who might be affected.
For example, all 128 people convicted at trial under 1512(c)(2) were also convicted of other crimes. At worst, they would need to be resentenced if their 1512(c)(2) conduct did not fall within the Supreme Court’s opinion. Beyond that, the legal gurus at Just Security found that for the “71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies.” Depending on the facts, their 1512(c)(2) charge could either be dropped or their sentencing could proceed as charged.
Of the very small number of defendants (48) who pleaded to obstruction under 1512(c)(2), 22 were also charged with another felony. The other 26 pleaded just to a 1512(c)(2) count; all but 11 of those could be charged with another felony such as civil disorder and theft of government property.
A grand total of 11 defendants — who pleaded only to a 1512(c)(2) offense with no other felonies available — conceivably might have those reduced to misdemeanors. (There are also a group of 73 people either convicted at trial or waiting for trial on 1512(c)(2) plus one or more misdemeanors.) That is it. Fischer in no way opens the prison doors, and it certainly gives Trump absolutely no comfort.
This is not to tout the reasonableness of the right-wing majority. Having snatched immense powers from the executive branch and Congress this term, the court’s unbridled activism is undeniable. We certainly have seen an untrammeled imperial court dragging government back to the 1920s (on nonregulation of air, water, workplace safety, etc.) and individual rights to the 19th century. It has run roughshod over our democracy, which empowers the people’s elected representatives to make policy decisions. Rather, Fischer stands as a lonely exception, an example of judicial finesse.
Two points deserve further mention. Most vividly, this case serves as yet another glaring example of the mainstream media’s rush to hysterical conclusions. Overwrought headlines after the decision came down suggested hundreds of cases would be overturned. Those were inaccurate. Precision should take precedence over clickbait. Second, if Trump gets more appointees for the Supreme Court and the rest of the federal bench in a second term, there might be no brake on the damage this court can do. The prospect that the court could get worse should send chills up and down the spines of all Americans.