The fate of hundreds of Jan. 6 defendants lies with the Supreme Court, which will hear a case Tuesday arguing that the obstruction law under which they were charged was never meant to apply to the attack on the U.S. Capitol.
If the justices rule that prosecutors have stretched the law too far, then it could also help former President Donald Trump, who faces conspiracy charges under another section of the same law.
At issue is a law passed in 2002 in the wake of the Enron scandal and aimed at giving the government new tools to go after those who obstruct an official proceeding.
The Biden administration says the Electoral College vote count taking place at the Capitol in 2021 while the mob raged counts as an official proceeding.
Joseph Fischer, one of those convicted under the law, says the statute was intended to snare people who try to destroy evidence of corporate fraud cases, such as document shredding. What went on at the Capitol that day falls far outside that, his lawyers argue.
Special counsel Jack Smith has charged Mr. Trump with the same charge as well as another one under a separate “conspiracy” section of the law for his own actions on Jan. 6, which Mr. Smith says were also an attempt to subvert the counting of the Electoral College votes.
Theodore M. Cooperstein, who represents some Jan. 6 defendants, said it would be difficult for Mr. Smith to prove the conspiracy charge if the court rules the law doesn’t apply to those who actually stormed the Capitol, meaning the vote count doesn’t qualify as an official proceeding under the statute.
“Conspiracy is dependent on the substance of what you are conspiring to do,” he said. “It really does take a weapon out of their arsenal.”
If that is the case, it could do away with two of the four charges Mr. Trump faces in his federal election fraud case.
Mr. Smith argues the charges stand regardless of how the court rules in Fischer’s case. In a brief in another Supreme Court case involving Mr. Trump’s claims of immunity from prosecution for acts taken while president, Mr. Smith said the “Section 1512 charges in this case are valid” no matter which interpretation the justices adopt.
Fischer, a former police officer, attended the Stop the Steal rally on the Ellipse near the White House on Jan. 6, 2021. He and a companion then left town but after learning of the crowd at the Capitol they returned and joined in, though not until after the Electoral College counting had already been suspended.
Fischer entered the Capitol, made it about 20 feet into the building, was pushed by the crowd into a line of officers and got pepper sprayed, then left the building. He was inside for four minutes.
Federal authorities charged him with seven counts related to the Jan. 6 attack but the one before the justices is Title 18 Section 1512(c), which reads:
“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.”
A U.S. district judge in Washington sided with Fischer and dismissed the charge, ruling the law didn’t apply to the events of Jan. 6. The circuit court reversed that decision.
They clashed over whether the word “otherwise” means the second part of the statute modifies the first, or whether it is independent.
The charge was brought against more than 300 of the roughly 1,200 Jan. 6 defendants. The Associated Press says at least 152 of them were convicted or pleaded guilty and 108 have been sentenced.
U.S. Solicitor General Elizabeth Prelogar argued in briefs to the justices that while Congress may have written the language in the law after Enron’s document-shredding, it is broad enough to encompass the hours-long disruption of the vote-counting to determine the next president.
“The text, context, and history of 18 U.S.C. 1512(c)(2) establish that it functions as a catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of an official proceeding,” she wrote.
Fischer’s lawyers called that an “unprecedented reading” and said the point of the law was to punish people who tampered with official investigations. To broaden it to any “proceeding” would open the door to all sorts of new prosecutions for protesters who interrupt a congressional hearing or a member of Congress who delays a floor vote.
“Until the January 6 prosecutions, no one had extended subsection (c)(2) beyond instances involving evidence impairment,” they said in their brief.
Jeffrey Swartz, a professor at Cooley Law School and a former county court Judge in Miami-Dade County, said a ruling for Fischer doesn’t automatically exonerate Mr. Trump on the conspiracy charge. He said igniting the mob — the basis for the charge against the former president — isn’t the same as a man who spent four minutes in the Capitol.
“There is a substantial difference between those two,” Mr. Swartz said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.