The news that the Supreme Court ruled Friday in favor of a Jan. 6 defendant’s bid to narrow the scope of a charge against him and other rioters has been treated in some quarters as a breakthrough for them — and for former president Donald Trump. But that reaction is misguided.
Yes, the court, in Fischer v. United States, narrowed the government’s expansive approach to Section 1512(c)(2), which makes it a crime to obstruct an official proceeding. Defendant Joseph Fischer and a number of his fellow insurrectionists were charged under that statute for storming the Capitol during the electoral count. And two of the four charges against Trump in special counsel Jack Smith’s prosecution for his crimes related to Jan. 6 were brought under the same law. But there is much less than meets the eye to what might seem like a win for the insurrectionists and Trump.
The court’s interpretation actually has the potential to bolster the prosecutions both against Fischer and his ilk and against Trump.
To start, as the Justice Department explained on Friday, “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.” Only 24% of Jan. 6 defendants were charged with the offense being considered in this case, and none were only charged with that crime. And as a new analysis by Just Security notes, “only 26 of those defendants pleaded guilty exclusively to 1512(c)(2) and no other crime; and all other guilty pleas and guilty verdicts after trial included additional federal crimes beyond 1512(c)(2).”
Ahead of the court’s decision, some worried that the justices could nonetheless severely limit this subset of Jan. 6 prosecutions, striking the most serious charge with the longest prison sentence, and dramatically narrow Trump’s case as well. That did not happen — and the court’s interpretation actually has the potential to bolster the prosecutions both against Fischer and his ilk and against Trump.
On its face, the court’s opinion looks like a mere legalistic clarification. The full text of the statute reads as follows:
1512 (c) 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.
The question the court faced was: Does the second part of the statute include any action that would obstruct, influence or impede an official proceeding? Or if it is limited in the same way as the first part, to conduct that in some way impairs the evidence the government uses in an official proceeding?
Focusing on the legislative text — typically a sound strategy when arguing to the conservative Supreme Court — the government argued in favor of the broader position. And almost every judge in the D.C. federal trial court and the D.C. Circuit Court of Appeals, agreed with the government’s interpretation, with the circuit upholding dozens of convictions of those charged for violently interfering with the electoral count.
But Fischer, one of the Jan. 6 rioters who allegedly assaulted a police officer, appealed to the Supreme Court. His lawyers argued that the statute — passed in the wake of the Enron accounting scandal — only concerns the type of document destruction that was at issue in that corporate malfeasance.
The court charted a middle path between the government’s and Fischer’s views.
In a bipartisan 6-3 decision, with Justice Ketanji Brown Jackson joining five Republican-appointed justices, the court followed neither the government’s nor Fischer’s proposal. Instead, the majority adopted an approach similar to what one of the authors (Seligman) proposed in an amicus brief submitted to the court.
In a fashion typical of Chief Justice John Roberts, who authored the majority opinion, the court charted a middle path between the government’s and Fischer’s views, ruling that 1512(c) covers some — but not all — conduct that obstructs an official proceeding. In other words, the court did not adopt the government’s position, which it said would “criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.” But the position it did adopt still clearly covers the conduct that Trump is charged with, and likely the conduct that violent Jan. 6 defendants like Fischer are charged with as well.
The court held that the type of obstruction outlined in the second subsection of the law — which the government argued was a catchall for conduct not covered by the first subsection — must be similar to the conduct outlined in the first subsection, which targets anyone who “alters, destroys, mutilates, or conceals a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding.”
The majority’s interpretation is reasonable, although one with which we disagree. In our view, Justice Amy Coney Barrett’s dissent, joined by Justices Elena Kagan and Sonia Sotomayor, properly interpreted the statute — and captured why its use is appropriate in the Jan. 6 cases. As Barrett noted, “statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.” Indeed, Barrett continued, “The Court, abandoning that approach, does textual backflips to find some way — any way — to narrow the reach of subsection (c)(2).” But ultimately, the technical legal dispute between the majority and the dissent won’t make a difference for many — and perhaps even all — of the prosecutions arising from the Jan. 6 insurrection. While Roberts did not accept the government’s interpretation, he also rejected Fischer’s extreme position that only direct evidence impairment — such as destroying documents or other means of preventing the government from using tangible evidence — was outlawed. “To prove a violation of Section 1512(c)(2),” he wrote, “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or … other things used in the proceeding, or attempted to do so.” This capacious rule covers both Trump and the violent Jan. 6 defendants. No one disputes that the electoral count is an “official proceeding.” And no one could deny that electoral certificates are “records, documents, objects, or … other things used” in the electoral count. So the only question is whether the defendant “impaired the availability or integrity” of the electoral certificates “for use” in the electoral count. The headline that the court rejected the government’s argument tells only half the story, and the less important half. In Trump’s case, the answer is clearly yes. He is alleged to have masterminded a scheme to interfere with Congress’ recognition of the genuine electoral certificates on Jan. 6. He without question “impaired the availability or integrity” of those certificates by organizing the submission of competing fraudulent certificates and pressuring Vice President Mike Pence to ignore the real ones. The answer is also in the affirmative as to the other Jan. 6 defendants, who caused congressional staffers to flee the Capitol with the ceremonial mahogany boxes holding those real electoral certificates. It’s hard to imagine a more visceral example than that of “impair[ing] the availability” of the electoral certificates for “use” in the electoral count. The story of Fischer v. United States is a common one. The government reached for an expansive interpretation of a criminal statute that the courts ultimately narrowed. But the narrowing interpretation the court adopted is still comfortably broad enough to capture the conduct with which both Fischer and Trump were charged. The headline that the court rejected the government’s argument tells only half the story, and the less important half. Joseph Fischer will still likely be convicted and sentenced to prison for violently storming the Capitol and assaulting police officers while he was there. He will probably do so as a felon convicted under Section 1512(c)(2). And nothing in this opinion at least will stand in the way of Trump meeting the same fate.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action.
Matthew Seligman
Matthew A. Seligman is a partner at Stris & Maher LLP and a fellow at the Constitutional Law Center at Stanford Law Center. He is the co-author, with Lawrence Lessig, of "How to Steal a Presidential Election." 
