Issues
Can individuals be found guilty of obstructing an official proceeding under 18 U.S.C. § 1512(c)(2) when the proceeding did not involve investigations or evidence?
This case asks the Court to determine whether 18 U.S.C. § 1512(c)(2) of the Sarbanes-Oxley Act covers obstructive conduct interfering in official proceedings that are unrelated to investigations and evidence. Petitioner argues that the Court should interpret § 1512(c)(2) as only covering obstructive conduct interfering in official proceedings that involve investigations and evidence, and points to textual analysis, principles of statutory construction, and the Court’s interpretations of similar statutes in Yates v. United States and Begay v. United States for support. Respondent counters that the Court should interpret § 1512(c)(2) as a catch-all provision covering all obstructive conduct and rejects the textual analysis and principles of statutory construction argued by the petitioner while pointing to 18 U.S.C. § 1503 for support. This case touches on important questions regarding the Sarbanes-Oxley Act and the usage of § 1512(c)(2) to cover rioters’ conduct during the January 6 Capitol Building storming, such as sentencing fairness and providing notice to parties.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.
Facts
On January 6, 2021, Joseph Fischer participated in the “Stop the Steal” rally in Washington, D.C. Brief for Petitioner at 3. Fischer also allegedly participated in the mob that entered the Capitol Building and forced Congress to halt its certification of the 2020 presidential election results. United States v. Fischer (circuit) at *332. Fischer’s alleged participation included physically engaging with police officers and encouraging mob members to “charge” and “hold the line.” Id.
On November 10, 2021, a grand jury of the United States District Court for the District of Columbia charged Fischer with seven felony and misdemeanor offenses, including a count of obstruction of an official proceeding under 18 U.S.C. § 1512(c)(2), based on his alleged conduct in the Capitol Building. Id. at *333; United States v. Fischer (district) at *1. Fischer subsequently moved to dismiss several of the counts, including the count of obstruction of an official proceeding. United States v. Fischer (district) at *1, *7. On March 15, 2022, the district court granted the motion to dismiss regarding the count of obstruction of an official proceeding. Id. at *8. The district court interpreted the word “otherwise” in § 1512(c)(2) as limiting § 1512(c)(2) to only cover activities described in 18 U.S.C. § 1512(c)(1), and that § 1512(c)(2) thus only covers individuals who act “with respect to a document, record, or other object” with the objective to “corruptly obstruct, impede or influence an official proceeding.” Id. The district court highlighted that the government never alleged Fischer acted with respect to the prerequisite items but accepted that the certification of the Electoral College vote constituted an “official proceeding.” Id. The government subsequently appealed the district court’s decision. United States v. Fischer (circuit) at *331.
On April 7, 2023, the United States Court of Appeals for the District of Columbia Circuit reversed the district court’s decision. Id. at *330, *331. The D.C. Circuit interpreted the word “otherwise” in § 1512(c)(2) to indicate that § 1512(c)(2) covers “all forms of corrupt obstruction of an official proceeding” not involving documents, records, or other objects, and thus not covered by § 1512(c)(1). Id. at *336-337. For support, the D.C. Circuit highlighted § 1512(c)(2)’s enactment as part of the Sarbanes-Oxley Act, which resulted primarily from the Enron scandal and revelations that Enron’s outside auditor had destroyed documents potentially incriminating Enron of widespread fraud, and statements by legislators debating the Sarbanes-Oxley Act. Id. at *346-348. The D.C. Circuit also interpreted the word “corruptly” in § 1512(c)(2), which the district court regarded as non-limiting, to indicate that individuals must act with “corrupt” intent in order to fall under the statute, and that “corrupt” intent may be inferred from obstruction perpetrated by unlawful actions. Id. at *339-340. The D.C. Circuit additionally agreed with the district court that the certification of the Electoral College vote constituted an “official proceeding,” contending that official proceedings do not need to involve investigations or evidence. Id. at *342.
On September 11, 2023, Fischer petitioned for a writ of certiorari; the Supreme Court granted certiorari on December 13, 2023. SCOTUSblog.
Analysis
PLAIN MEANING
Fischer argues that the plain meaning of 18 U.S.C. § 1512(c)(2) supports interpreting the statute as covering only conduct relating to evidence, rather than a broader definition of “conduct.” Brief for Petitioner, Joseph Fischer at 8. Fischer contends that the plain meaning of § 1512(c)(2)’s text supports interpreting § 1512(c)(2) to only cover obstructive conduct affecting evidence. Id. Fischer also argues that analyzing § 1512(c)(2) as connected to 18 U.S.C. § 1512(c)(1) supports interpreting § 1512(c)(2)’s covered conduct as only conduct concerning evidence, contending that “otherwise” at the beginning of § 1512(c)(2) connects § 1512(c)(2) with § 1512(c)(1), and highlighting the dictionary definition of “otherwise” as indicating two things to be similar. Id. at 8, 10. Fischer contends that § 1512(c)(1)’s enumerated crimes, which Fischer characterizes as concerning evidence impairment, contextualize § 1512(c)(2)’s enumerated crimes as only covering conduct concerning evidence rather than other types of conduct. Id. at 9–10.
The United States counters that § 1512(c)(2)’s plain meaning supports broadly interpreting “conduct,” rather than narrowly defining conduct as only concerning evidence. Brief for Respondent, United States at 17. The United States contends that analyzing § 1512(c)(2)’s text in relation to § 1512(c)(1) supports interpreting § 1512(c)(2) as a “catch-all provision” covering obstructive conduct that other obstruction statutes do not address. Id. The United States argues that “otherwise” in § 1512(c)(2) does not require reading § 1512(c)(1) as characterizing § 1512(c)(2)’s crimes as concerning evidence, highlighting Supreme Court precedent and multiple dictionaries defining “otherwise” as referencing conduct occurring “in a different manner.” Id. at 19–21. The United States contends that §§ 1512(c)(1) and (c)(2) are instead only connected because both target conduct impacting official proceedings, rather than whether the conduct involves evidence. Id. at 21.
STATUTORY CONSTRUCTION
Fischer further argues that several statutory construction principles support interpreting § 1512(c)(2) as only covering evidence-related conduct. Brief of Petitioner at 11. Relying on the canon against surplusage, which calls for interpreting a statute so that no provision is irrelevant, Fischer argues that § 1512(c)(2) must only cover evidence-related conduct to prevent § 1512(c)(2) from covering conduct already covered by § 1512(c)(1), several other subsections of 18 U.S.C. § 1512, and several sections in 18 U.S.C. Chapter 73. Id. at 12, 14–15. Fischer further posits that Congress would not have concealed “an all-encompassing, free-standing, obstruction offense” in a subsection, quoting the Court’s declaration that “[Congress] does not… hide elephants in mouseholes.” Id. at 12. Relying on the principle of noscitur a sociis, Fischer contends that the Court should not rely solely on the word “otherwise” to justify broadly interpreting § 1512(c)(2) as the government suggests. Id. at 16. Fischer argues that the Court instead must interpret the breadth of “otherwise” in the context of § 1512(c)(2) following § 1512(c)(1), rather than in the context of § 1512(c)(2) as a standalone subsection. Id. Meanwhile, relying on the related principle of ejusdem generis, Fischer contends that the reference to “documents, records, or objects” in § 1512(c)(1) limits the interpretable breadth of “otherwise” in § 1512(c)(2) to conduct involving documents, records, or related objects. Id.
The United States counters that statutory construction principles support interpreting § 1512(c)(2) as covering all conduct, evidence-related or otherwise. Id. at 23, 25–26. The United States argues that interpreting § 1512(c)(2) to only cover evidence-related conduct does not keep § 1512(c)(2) from covering conduct already covered by § 1512(c)(1), highlighting that Fischer never identifies any conduct that § 1512(c)(1) covers that his interpretation of § 1512(c)(2) would not also cover. Id. at 23. The United States posits that other subsections of 18 U.S.C. § 1512 and sections of 18 U.S.C. Chapter 73 would not become superfluous by interpreting § 1512(c)(2) broadly because these subsections and sections either impose harsher penalties than § 1512(c)(2) or cover additional conduct or circumstances that § 1512(c)(2) does not cover. Id. at 35. The United States also stresses that Congress would have combined §§ 1512(c)(1) and (c)(2) had Congress meant for both subsections to only cover conduct concerning evidence. Id. Furthermore, the United States argues that noscitur a sociis only applies to lists where several items in the list share an attribute; the United States disagrees with characterizing § 1512(c)(2) as an item in a list, instead characterizing § 1512(c)(2) as “a distinct prohibition.” Id. at 26. Meanwhile, the United States argues that §§ 1512(c)(1) and (c)(2) differ too much regarding their verbs, objects, and intent requirements to justify relying on ejusdem generis to interpret “otherwise” in § 1512(c)(2). Id. at 25–26.
COMPARABLE STATUTES AND LEGISLATIVE HISTORY
Fischer also argues that § 1512(c)(2)’s enactment as part of the Sarbanes-Oxley Act indicates Congress’s intent for § 1512(c)(2) to only cover evidence-related conduct. Brief of Petitioner at 17. Fischer highlights the Court’s characterization of the Act in Yates v. United States as addressing “corporate and accounting deception and coverups.” Id. Fischer also highlights the Court’s characterization in Yates of 18 U.S.C. § 1519 as an anti-financial fraud provision, along with the Court’s rejection of the government’s broad interpretation of § 1519 as covering all physical items potentially relevant to a federal investigation. Id. at 18. Fischer compares § 1512(c)(2) and § 1519 to argue that the Court should similarly interpret § 1512(c)(2), highlighting that both provisions stemmed from the Sarbanes-Oxley Act, address evidence spoliation, and cover a wide variety of obstructive conduct connected by certain circumstances. Id. at 17–18.
Fischer further contends that interpreting § 1512(c)(2) as only covering conduct concerning evidence would mirror the Court’s interpretation of 18 U.S.C. § 924(e)(2)(B)(ii), a subsection of the Armed Career Criminal Act, in Begay v. United States. Id. at 18. Fischer highlights that the Court considered the proximity within § 924(e)(2)(B)(ii) of exemplar crimes to an “otherwise” clause covering general conduct “present[ing] a serious potential risk of physical injury to another” as indicating Congress’s intent for § 924(e)(2)(B)(ii) to cover crimes like the specific crimes listed in the subsection, rather than all crimes potentially resulting in physical harm to others. Id. Fischer also quotes the Court’s contention in Begay that Congress’s decision to add exemplar crimes preceding the “otherwise” clause would only be sensible if Congress did not intend § 924(e)(2)(B)(ii) to be all encompassing, arguing that the Court should interpret § 1512(c)(2)’s language similarly. Id.
The United States counters that § 1512(c)(2)’s enactment as part of the Sarbanes-Oxley Act instead reflects Congress’s intent to address obstructive acts unanticipated by other anti-obstruction statutes. Brief of Respondent at 38. The United States observes that several circuits have interpreted § 1512(c)(2) as covering conduct unrelated to evidence. Id. at 40-41. The United States also differentiates § 1512(c)(2) from 18 U.S.C. § 1519, contending that the Court in Yates only interpreted § 1519 narrowly to avoid rendering § 1519’s prohibited conduct of “falsifying” and “mak[ing] a false entry” in objects nonsensical. Id. at 27. The United States instead compares § 1512(c)(2) to 18 U.S.C. § 1503, which the Court has interpreted broadly to cover all coercive behavior against “the due administration of justice,” because both statutes employ the same verbs and feature a distinct focus on prohibited conduct. Id. at 31.
The United States also counters that 18 U.S.C. § 924(e)(2)(B)(ii) and the Court’s decision in Begay do not relate to § 1512(c)(2). Id. at 23–24. The United States references Supreme Court precedent post-Begay as criticizing Begay for misinterpreting § 924(e)(2)(B)(ii) contrary to what Congress intended, and as introducing unnecessary and potentially unconstitutional vagueness into the subsection. Id. at 24. The United States also contends that the Court should not rely on § 924(e)(2)(B)(ii) and Begay to provide guidance on how to interpret § 1512(c)(2) because the Armed Career Criminal Act’s statutory structure differs significantly from the statutory structure of § 1512(c). Id. The United States therefore argues that both Yates and Begay support interpreting “conduct” broadly to refer to all types of conduct, not those restricted to evidence. Id. at 23-24.
Discussion
SENTENCING FAIRNESS
In support of Fischer, Senator Tom Cotton and others claim that the government’s insistence in applying 18 U.S.C. §1512(c)(2) arises out of a desire to impose severe penalties on dissenting political speech. Brief of Amici Curiae U.S. Senator Tom Cotton et. al., in Support of Petitioner at 16. Specifically, Senator Cotton and others maintain that the government wields 18 U.S.C. §1512(c)(2) like an “all-purpose weapon,” hanging a 20-year sentence over the heads of Trump supporters simply because they are the former president’s political supporters. Id. Moreover, Senator Cotton and others contend that the modern era is one of significant political polarization: both sides of the political spectrum view the other as being fundamentally “immoral or evil,” and are therefore more inclined to impose harsher sentences on political opponents regardless of the actual severity of the crime. Id. at 22. Notably, Senator Cotton and others explain that the government has previously tried using 18 U.S.C. §1512(c)(2) to convict former president Trump after investigating Russian interference but failed to do so. Id. at 27. Therefore, Senator Cotton and others propose that the government seeks to expand the interpretation of 18 U.S.C. §1512(c)(2) by applying it to Trump’s supporters. Id.
In support of the United States, John Danforth et. al. contend that the 20-year sentence is fair because the January 6 protestors sought to impede judicial integrity. Brief of Amici Curiae, John Danforth et. al., in Support of Respondent at 12. Specifically, Danforth and others argue that the court must protect all judicial proceedings and impose harsher penalties on January 6 protestors if the Court means to protect the current system of government. Id. Further, Danforth and others counter Senator’s Cotton’s concerns that 18 U.S.C. §1512(c)(2) is being used to suppress all dissenting political speech and claim that the crime at hand is being punished severely not out of political bias, but for the precise reason that it is more serious than other crimes. Id. at 14. Moreover, Danforth and others stress the importance of a peaceful transfer of executive power. Id. at 14–15. Accordingly, Danforth and others propose that, in arguing for the application of 18 U.S.C. §1512(c)(2), the government does not seek to suppress dissenting speech or expand the interpretation of the statute; rather, it is merely attempting to protect the principles of government that were established by the Constitution. Id. at 17.
EFFECT ON NOTICE
In support of Fischer, Senator Cotton and others argue that Congress limited 18 U.S.C. §1512(c)(2) to apply to witness tampering only, and that a broader application would confuse other political protestors. Brief of Amici Curiae U.S. Senator Tom Cotton et. al. at 10, 16. Liberty Counsel similarly urges for a narrow application of 18 U.S.C. §1512(c)(2): because January 6 protestors did not destroy any physical evidence during a trial, they must not be charged under a witness tampering statute lest other political protestors find the law’s application to be unpredictable. Brief of Amicus Curiae Liberty Counsel Action, Inc., in Support of Petitioner at 14–16. Accordingly, Liberty Counsel urges that 18 U.S.C. §1512(c)(2) should not apply to the case at hand—protests are valued and common in society and therefore giving the January 6 protestors a larger penalty than other protesters without prior notice would be unfair. Id. at 17. Liberty Counsel elaborates that January 6 protestors should not be punished at all because they in fact had no notice that such massive penalties would apply. Id. at 17.
In support of the United States, Former Government Officials and Constitutional Lawyers (“Former Officials and Lawyers”) counter that the parties—current and future—should expect severe penalties for criminal actions during protests, and thus the protesters were given adequate notice for the punishment. Brief of Amicus Curiae Former Government Officials and Constitutional Lawyers, in Support of Respondent at 12. Specifically, Former Officials and Lawyers express the purpose of 18 U.S.C. §1512(c)(2) was always to deter the losing side’s impulse to lash out in anger and improperly sway any US courts in their favor. Id. at 12–13. Former Officials and Lawyers therefore explain that applying 18 U.S.C. §1512(c)(2) would be consistent with the law and would diminish future confusion because the statute has always applied to actions that impeded official proceedings. Id. at 19. Accordingly, Former Officials and Lawyers argue that, even though the statute was born out of a witness-tampering prohibition, it should still be applied to the case at hand because all protestors have adequate notice of the situations in which the “catch-all provision” is applied. Id. at 8.
Conclusion
Acknowledgments
Additional Resources
- Amy Howe, Court to weigh in on scope of law used in Jan. 6 prosecutions, SCOTUSblog (December 13, 2023)
- Ella Lee, Supreme Court will hear challenge to Jan. 6 obstruction charge, The Hill (December 13, 2023)
- Michael Macagnone, Supreme Court to decide issue tied to hundreds of Jan. 6 cases, Roll Call (December 13, 2023)
- Kimberly Wehle, The ‘Sleeping Giant’ Case that Could Upend Jack Smith’s Prosecution of Trump, Politico (January 17, 2024)