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Fischer v. United States, January 6 Rioters & Wrongthink.

Fischer v. United States, January 6 Rioters & Wrongthink.

Posted by Ed Folsom, July 6, 2024.

On June 28, the U.S. Supreme Court handed down its decision in Fischer v. United States. Fischer was charged in a seven-count indictment for his activities at the U.S. Capitol building on January 6, 2021. He moved the District Court to dismiss count three. That count charged him with violating 18 U.S.C. section 1512(c)(2), a charge that carries a maximum penalty of 20 years in prison. Fischer argued that section 1512(c)(2) does not apply to his alleged activities because it only criminalizes attempts to impair the integrity of evidence. The U.S. Supreme Court described the other six counts in Fischer’s indictment as follows:

Six of those counts allege that Fischer forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol, among other crimes…Those six counts carry maximum penalties ranging from six months’ to eight years’ imprisonment.

The District Court judge agreed that section 1512(c)(2) only applies to impairing or attempting to impair physical evidence. He granted Fischer’s motion to dismiss. The Government appealed the decision to the D.C. Circuit Court of Appeals. That court was divided on the issue. Two judges agreed that the charge should proceed. The third dissented on grounds that the charged offense does not apply to Fischer’s conduct. Fischer appealed to the U.S. Supreme Court.

The Supreme Court decided 6-3 that:

To prove a violation of Section 1512(c)(2), 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.

The three dissenters, Barrett, Kagan and Sotomayor, agreed with the opinion of the D.C. Circuit Court of Appeals. They would have held that the broad language of section 1512(c)(2) should be taken to mean exactly what it says, standing on its own, without reference to anything else in the statute or in legislative purpose or legislative history.

Here is what section 1512(c) says:

(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 . . . or imprisoned not more than 20 years, or both.

The Government argued that Fischer entered the Capitol building and clashed with police to corruptly obstruct, influence, or impede an official proceeding — the certification of presidential electors on January 6, 2021.

The Fischer majority decided that subsection 2 must be read in conjunction with subsection 1 to limit its applicability to the attempted or successful impairment of evidence from use in an official proceeding. They reached this result by applying rules of statutory construction, bolstered by reference to the reason section 1512(c) was enacted to begin with. The subsection was enacted as part of so-called Sarbanes-Oxley legislation, in the wake of the Enron accounting scandal in which Enron’s auditing firm destroyed records to keep them out of the hands of federal investigators. Prosecutors were frustrated that existing federal law made it a crime to solicit or cause others to destroy such evidence in order to keep it from investigators, but did not make it a crime to do the destruction itself. To address that loophole, Congress enacted section 1512(c).

The Fischer majority was particularly swayed that the Government’s interpretation would obviate the function of subsection 1 by swallowing it whole. In fact, the Government’s interpretation sweeps well beyond impairing documents or other evidence for use in official proceedings. It reaches any sort of attempt to obstruct, influence, or impede any type of official proceeding whatsoever, as long as the attempt is made “corruptly,” whatever “corruptly” may mean.

There are numerous crimes in the federal criminal code that address interfering with or attempting to interfere with particular types of official proceedings. If subsection 2 is construed as the Government has construed it in the January 6 prosecutions, those specific crimes, most carrying maximum penalties far less than the 20-year maximum of section 1512(c), are simply superfluous – subsumed within and rendered superfluous by section 1512(c)’s sweeping breadth.

Justice Jackson wrote a concurring opinion, seemingly to emphasize the legislative history of section 1512(c) and how incongruous it would be for Congress to enact a statute that obviates the need for all the other statutes calibrated to specific forms of attempted interference in official proceedings that carry lesser penalties than section 1512(c). Typically, when a legislature creates a broad residual statute, picking up forms of interference that might escape more specific statutes, the legislature assigns a lesser penalty for violation of the residual statute than for violations of the more specific statutes that address the more particular conduct.

The dissenters take a strictly textualist approach, rejecting the application of the majority’s rules of statutory construction. Their position is essentially that subsection 1512(c) says what it says standing on its own, and there’s no reason to inquire further. Government prosecutors must be allowed to run with it as far as they choose to take it, whenever they choose to take it that far. Here is how Justice Barrett sums up her position (omitting internal citations and quotes):

There is no getting around it: Section 1512(c)(2) is an expansive statute. Yet Congress, not this Court, weighs the pros and cons of whether a statute should sweep broadly or narrowly. Once Congress has set the outer bounds of liability, the Executive Branch has the discretion to select particular cases to prosecute within those boundaries. By atextually narrowing §1512(c)(2), the Court has failed to respect the prerogatives of the political branches.

For my part, I’m happy to see the majority reach the conclusion it did. I’m agnostic on the reasoning that got them there. The result reigns-in some of the power of federal prosecutors to pick and choose targets to hammer, based on who those targets are, while overlooking similar digressions by the members of pet categories and classes. In case you haven’t noticed, prosecutorial discretion has been very much politicized these days. While there may be just one rule of law, its application is too often highly selective, based on what favored or disfavored political grouping one belongs to. Anyone in a disfavored group who is not a member of a protected category had better look out.

Dark games prosecutors play.

Back in 2007, Columbia Law School professor Tim Wu wrote a piece in Slate, in which he discussed a “darkly humorous game” that Assistant U.S. Attorneys used to play in the Southern District of New York. Senior prosecutors would toss out a celebrity’s name. The younger prosecutors would identify federal crimes that they could hang on the celebrity, from what Wu described as “the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield.” In other words, when given the name of a target, these prosecutors could conjure various crimes to hang on that target. At least Fischer narrows the range of charges that a federal prosecutor might conjure to nail a target by ripping a few lines out of context. The downside of strict textualism is that it plays too easily into the real-world version of a corrupt prosecutorial game.

On the other hand, there are strong reasons for taking a strict textualist approach to statutory interpretation. It’s too easy for a court that dislikes a particular result to read-in its own preferred interpretation, purportedly discerning legislative intent from the legislation’s history. The more that door is opened, the more leeway exists for judges to impose a judicial gloss that is really nothing more than their own will dressed-up as legislative intent. On the other hand, the Fischer majority did not reach its result by examining legislative history. The majority discussed the purpose of this particular Sarbanes-Oxley provision as support for the interpretation that they were led to by rules of statutory construction. The dissent calls B.S.

As I have pointed out before, I detest broad statutes that allow prosecutors to hammer people they want to hammer, simply because they dislike them and want to hammer them, while leaving alone or treating very favorably those they don’t feel like hammering simply because they don’t feel like hammering them.

How to explain some judicial switching of positions since the very similar issue was decided in Yates v. United States?

In Yates v. United States, federal prosecutors chose to hammer a fisherman who threw short Grouper overboard to get rid of evidence that he had been catching and keeping short fish. The Government chose to hammer Yates under another provision of Sarbanes-Oxley, section 1519, which also carries a maximum 20-year penalty, because they could and because they decided to. In that case, the Supreme Court ruled 5-4 that a fish is not a “tangible object” within the meaning of section 1519. As discussed here, the majority reached this result by applying rules of statutory construction and by examining the purpose of the Sarbanes-Oxley legislation.Yates and Fischer presented very similar issues.

One of the dissenters in Yates was Justice Thomas. Thomas and the other three dissenters thought that section 1519 should be construed solely on its plain language, on the face of that language and as broadly as that language might be applied. Yet, in Fischer, Thomas was with the majority. Justice Sotomayor was with the majority in Yates, deciding that rules of statutory construction and legislative history showed that a fish is not a “tangible object” under section 1519. In Fischer, Sotomayor was with the dissenters, reading section 1512(c)(2) to say exactly what it says on its face, in isolation, and as broadly as it might be applied.

Justice Alito stayed on the same side of the issue, writing a concurrence in Yates and siding with the majority in Fischer. Justice Kagan wrote the dissent in Yates and joined the dissent in Fischer, so her position remained consistent as well. And Chief Justice Roberts also remained consistent, rejecting the Government’s interpretation of the Sarbanes-Oxley language in both cases. The other 4 justices who decided Yates are no longer on the Supreme Court.

Did Justices Sotomayor and Thomas change their positions just to reach their preferred political outcomes, not based on where the law led them? Are Sotomayor’s positions fully explained by her sympathy for a fisherman who got arbitrarily crushed by the feds in Yates, and her abject revulsion for participants in the January 6, 2021 Capitol riot such that no prosecutorial overreach toward them in Fischer could offend her? How about Thomas? Did he join the Yates dissent only out of willingness to let a fisherman get crushed by the Government for the sake of a principle, while the implications of the Government’s overreach in the January 6 prosecutions troubled him enough to abandon the same principle in Fischer? Does it matter? Or is ensuring that the Supreme Court only reaches one’s own preferred political result all that matters? Is it, “I’m with Sotomayor. Thomas has got to go”? Or is it, I’m with Thomas. Sotomayor has got to go”?

Properly understood, is the role of the Supreme Court that of a super committee of social engineering overseers (i.e., Our Democracy™) or is it that of the highest and final arbiter of law in a constitutional republic?

I hear the baying of the hounds calling for removal from the Court of the Justices who are reaching incorrect political results, mixed with yips and yelps to expand the Court and pack it with Justices who will reliably reach the correct political results. It all reminds me of a passage from Sam Tanenhaus’s “Whittaker Chambers: A Biography”:

“For [Soviet spy, Alger] Hiss’s supporters to admit his guilt also meant admitting that mere liberal principle is not in itself a guarantee against evil; that the wrongdoer is not always the other—’they’ and not ‘us’; that there is no magic in the words ‘left’ or ‘progressive’ or ‘socialist’ that can prevent deceit and abuse of power.”

Tell me, all you ideological purity councilors surfing the right side of history: Is that Wrongthink?


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