Supreme Court overturns use of obstruction charge used in hundreds of Jan. 6 cases

WASHINGTON — In a 6-3 vote Friday, the U.S. Supreme Court rejected the government's use of an obstruction statute used to charge more than 300 people in connection with the Jan. 6 Capitol riot.

Writing for the court, Chief Justice John Roberts said the Justice Department had overstepped when it used a post-Enron law about obstructing an official proceeding. In his opinion, Roberts said the government must establish 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."

The court's ruling potentially impacts the cases of more than 330 people charged in the riot, including some of the most serious felony cases brought to date.

The challenge was brought by Joseph W. Fischer, a former Pennsylvania police officer facing multiple felony counts for allegedly charging a line of police inside the U.S. Capitol on Jan. 6. One of those counts, 18 U.S.C. § 1512(c)(2) — obstruction of an official proceeding – was dismissed in 2022 by U.S. District Judge Carl Nichols. Judge Nichols, a former deputy assistant attorney general who was nominated to the federal bench by Trump in 2019, found that the law required Fischer and other defendants to “have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

At issue was the meaning of the word “otherwise” in the 18 U.S.C. § 1512(c)(2) statute:

    (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.

Congress created the law in 2002 to close a loophole that helped Enron’s auditing firm, Arthur Andersen, evade charges for destroying potentially incriminating documents. During oral arguments before the high court in April, Fischer's attorney, Jeffrey T. Green, said Congress meant the law to be limited to punishing those who tried to prevent evidence from being available or to falsify evidence in an official proceeding.

Multiple justices took issue with that reading, however, and suggested it was against the plain text of the statute. Justice Sonia Sotomayor offered the analogy of a theater with a sign prohibiting pictures, recordings or otherwise disturbing the performance.

“If you start yelling, I think no one would question you could be kicked out under this policy even though yelling has nothing to do with photography or recording,” Sotomayor said.

Several justices also echoed a point made by Justice Elena Kagan that Congress could have written the law specifically to be about evidence impairment if it had wanted to.

“But they didn’t do that,” Kagan said. “They just said ‘obstruct an official proceeding.’”

But justices were also skeptical of the government's preferred reading of the statute as a catch-all clause that would cover a wide range of obstructive actions. The court’s conservative wing repeatedly questioned Solicitor General Elizabeth B. Prelogar about how the DOJ had used the charge in the past and how it might use it in the future, given the court’s assent, to prosecute non-violent protests around the country.

“Would a sit-in that disrupts a trial, or access to a federal courthouse, qualify?” Justice Neil Gorsuch asked. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify?”

Justice Samuel Alito echoed the same concerns.

“What happened on Jan. 6 was very, very serious and I’m not equating [courtroom hecklers] with that,” he said. “But we need to find out the outer reaches of this.”

Prelogar, who previously clerked for Justices Kagan and Ruth Bader Ginsburg, said the statute itself provided guardrails, including a requirement that defendants obstruct a proceeding for a “corrupt” purpose. She also said the word “obstruct” contains an inherent limit on charging actions that have a minor effect on a proceeding – although the court seemed disinclined to accept that as a substantial safeguard.

Nearly 1,500 people have now been charged in connection with the Capitol riot, including more than 330 have charged with 18 U.S.C. § 1512(c)(2). Of those, more than 150 have already been sentenced – including former Proud Boys national chairman Enrique Tarrio, who received 22 years in prison, and Oath Keepers founder Stewart Rhodes, who received 18 years. Approximately 50 defendants have been sentenced with 18 U.S.C. § 1512(c)(2) as their only charge as part of a plea deal.

In March, the D.C. Circuit ruled that two sentencing enhancements were improperly used in cases involving the obstruction charge. Dozens of defendants have since sought resentencing or release from prison while they appeal, although those requests have met with mixed success.