SCOTUS Rejects a Legal Interpretation Underlying Capitol Riot Charges

The Supreme Court today rejected the statutory interpretation underlying a criminal charge against some of the Donald Trump supporters who participated in the riot at the U.S. Capitol on January 6, 2021. The same charge—obstructing an official proceeding—also figures in the federal indictment accusing the former president himself of illegally attempting to reverse the outcome of the 2020 presidential election.

Prosecutors alleged that rioters obstructed an official proceeding by interrupting the congressional ratification of the election results. In Trump's case, they argued that he interfered with that process by promoting the stolen-election fantasy that motivated the rioters, a subset of the protesters who attended the pre-riot rally at which he ginned up his supporter's outrage at President Joe Biden's supposedly illegitimate victory and urged them to march on the Capitol "peacefully and patriotically." But according to the Supreme Court, neither the rioters' actions nor Trump's meet the elements of this offense.

The case involves Joseph Fischer, a former police officer who was charged with obstructing an official proceeding under 18 USC 1512(c) after participating in the riot. That provision was created by the Sarbanes-Oxley Act, a 2002 law that Congress approved in response to a financial scandal involving the destruction of potentially incriminating documents by the accounting firm Arthur Andersen. In light of that context and the provision's structure, Fischer argued, his conduct at the Capitol, which allegedly included entering the building and confronting police officers, did not fit the requirements for prosecuting someone under that statute.

Six justices agreed. Writing for the majority in Fischer v. United States, Chief Justice John Roberts says proving a violation of Section 1512(c) requires "establish[ing] 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."

Section 1512(c)(1) applies to anyone who "corruptly…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." Section 1512(c)(2), the provision used in the Capitol riot cases, applies to anyone who "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so." Both are felonies punishable by up to 20 years in prison.

The crucial question, Roberts says, is whether "this 'otherwise' clause should be read
in light of the limited reach of the specific provision that precedes it," as a federal judge concluded, or as a catchall broad enough to encompass Fischer's behavior, as a divided D.C. Circuit panel held. Roberts concludes that the latter interpretation is implausible.

"Subsection (c)(1) describes particular types of criminal conduct in specific terms," Roberts writes. "To ensure the statute would not be read as excluding substantially similar activity not mentioned, (c)(2) says it is also illegal to engage in some broader
range of unenumerated conduct."

To determine how broad that "range of unenumerated conduct" is, Roberts relies on two interpretive principles. "The canon of noscitur a sociis teaches that a word is 'given more precise content by the neighboring words with which it is associated,'" he notes. That principle "avoid[s] ascribing to one word a meaning so broad that it is inconsistent" with "the company it keeps." And under "the related canon of ejusdem generis," a "general or collective term" at the end of "a list of specific items" is typically "controlled and defined by reference to" the "specific classes…that precede it."

Roberts illustrates those principles with the example of a sign at a zoo that says, "Do not pet, feed, yell or throw objects at the animals, or otherwise disturb them." Does that last phrase encompass "a visitor [who] eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure"? Common sense suggests not.

"Although the smell of human food or the sound of voices might well disturb gorillas, the specific examples of impermissible conduct all involve direct interaction with and harassment of the zoo animals," Roberts writes. "Merely eating or talking is so unlike the examples that the zoo provided that it would be implausible to assume those activities were prohibited, even if literally covered by the language."

So too here, Roberts says: "The 'otherwise' provision of Section 1512(c)(2) is similarly limited by the preceding list of criminal violations. The offenses enumerated in subsection (c)(1) cover someone 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.' Complex as subsection (c)(1) may look, it simply consists of many specific examples of prohibited actions undertaken with the intent to impair an object's integrity or availability for use in an official proceeding: altering a record, altering a document, concealing a record, concealing a document, and so on. That list is followed immediately by a residual clause in (c)(2). Guided by the basic logic that Congress would not go to the trouble of spelling out the list in (c)(1) if a neighboring term swallowed it up, the most sensible inference is that the scope of (c)(2) is defined by reference to (c)(1)."

If the government were right that "otherwise" covers any conduct that "obstructs, influences, or impedes any official proceeding," Roberts says, "the sweep of subsection (c)(2) would consume (c)(1), leaving that narrower provision with no work to do." That interpretation poses a "surplusage problem," which contradicts the usual assumption that each part of a statute is designed to accomplish something.

According to the government's theory, Roberts writes, "Section 1512(c) consists of
a granular subsection (c)(1) focused on obstructive acts that impair evidence and an overarching subsection (c)(2) that reaches all other obstruction." But "that novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison." During oral argument in April, Roberts notes, Solicitor General Elizabeth Prelogar conceded that "a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence" based on the government's reading of the statute. He adds that the government "would likewise have no apparent obstacle to prosecuting under (c)(2) any lobbying activity that 'influences' an official proceeding and is undertaken 'corruptly.'"

Those "peculiar results," Roberts says, underline the implausibility of the government's interpretation. "Rather than transforming this evidence-focused statute into a one-size-fits-all solution to obstruction of justice, we cabin our reading of subsection (c)(2) in light of the context of subsection (c)(1)," he writes. "Doing so affords proper respect to 'the prerogatives of Congress' in carrying out the quintessentially legislative act of defining crimes and setting the penalties for them."

The lineup in this case does not break cleanly on ideological lines. Justice Ketanji Brown Jackson, who often joins Justices Sonia Sotomayor and Elena Kagan in dissenting from decisions by the Court's conservative majority, joined Roberts' opinion. She also wrote a concurring opinion in which she notes that "today's case is not about the immorality" of the Capitol rioters' behavior. "Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis," she says. "Notwithstanding the shocking circumstances involved in this case or the Government's determination that they warrant prosecution, today, this Court's task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here."

Meanwhile, Justice Amy Coney Barrett, who usually aligns with the conservative majority, wrote a dissent, joined by Sotomayor and Kagan, that faults Roberts et al. for discounting the plain meaning of Section 1512(c)(2). "The Court does not dispute that Congress's joint session qualifies as an 'official proceeding'; that rioters delayed the proceeding; or even that Fischer's alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results," she writes. "Given these premises, the case that Fischer can be tried for 'obstructing, influencing, or impeding an official proceeding' seems open and shut."

The majority concludes otherwise, Barrett suggests, "because it simply cannot believe that Congress meant what it said." Statutes "often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway," she writes. "The Court, abandoning that approach, does textual backflips to find some way—any way—to narrow the reach of subsection (c)(2)."

The practical implications of this decision are important for defendants like Fischer, given the stiff punishment authorized by this provision. But there is no shortage of other charges that the Justice Department can file (and has filed) against the Capitol rioters, ranging from misdemeanors such as "entering and remaining in a restricted building" to felonies such as aggravated assault. And while the Court's decision negates two of the charges against Trump, it does not affect the other two counts in the election interference indictment: conspiracy to defraud the United States and conspiracy to deprive Americans of their voting rights.

The more serious threat to that prosecution is the litigation over whether—and, if so, to what extent—Trump is immune from criminal charges based on his "official acts" as president. The Supreme Court is expected to rule on that question this Monday. But with just four months to go before the presidential election, it seems likely that, even if the Court clears the way, any trial would begin after that contest is decided. If Trump wins the election, as he seems poised to do right now, he surely will find a way to make the case disappear.