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Supreme Court Appears Skeptical of Using Obstruction Law to Charge Jan. 6 Rioters

The Supreme Court appeared wary Tuesday of letting prosecutors use a federal obstruction law to charge hundreds of rioters involved in the Jan. 6, 2021, attack on the Capitol.

A ruling rejecting the government’s interpretation of the law could not only disrupt those lawsuits, but also eliminate two of the federal charges against former President Donald J. Trump in the case accusing him of conspiring to overturn the election of 2020.

Mr. Trump’s case was not raised during the debate, which was largely about trying to make sense of a law that everyone involved agreed was not a model of clarity. But the justices’ questions also focused on the severity of the assault and whether prosecutors had stretched the law to reach members of the mob responsible for the attack.

Justice Clarence Thomas, who returned to the bench after an unexplained absence Monday, asked whether the government was engaging in some sort of selective prosecution. “There were many violent demonstrations which disrupted the proceedings,” he said. “Has the government applied this provision to other demonstrations?

Justices Samuel A. Alito Jr. and Neil M. Gorsuch asked questions along similar lines.

But the justices mainly questioned whether a provision of the Sarbanes-Oxley Act, enacted following the collapse of the energy giant Enron, covered the conduct of a former police officer, Joseph W. Fischer, who participated the storming of the Capitol on January 6, 2021.

The law is included in two of the federal charges against Mr. Trump in his election subversion case, and more than 350 people who stormed the Capitol have been prosecuted under it. If the Supreme Court sides with Mr. Fischer and says the law doesn’t cover what he’s accused of doing, Mr. Trump is almost certain to argue that the law doesn’t apply to him either. conduct.

The law, signed in 2002, was motivated by accounting fraud and document destruction, but the provision is written in broad terms.

At least part of the law’s purpose was to fill a gap in the federal penal code: it was a crime to persuade another to destroy documents relevant to an investigation or official proceeding, but not to do so yourself -even. The law sought to fill this gap.

He did this in a two-part layout. The first part makes it an offense to alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime “otherwise” to obstruct, influence or corruptly obstruct any official proceeding.

The heart of the case is located at the pivot from the first part to the second. The ordinary meaning of “otherwise,” prosecutors say, is “in a different way.” This means, they say, that obstructing an official proceeding does not necessarily involve destroying evidence. The second part, they say, is a general catch-all applying to all kinds of behavior.

Mr. Fischer’s lawyers counter that the first part of the provision must clarify and limit the second — to the obstruction linked to the destruction of evidence. They would read “otherwise,” in other words, as “in the same way.”

The case is one of several cases affecting or involving Mr. Trump on the court’s docket. In a separate case to be argued next week, the justices will consider Mr. Trump’s claim that he is completely immune from prosecution.

Mr. Fischer is accused of entering the Capitol around 3:24 p.m. on January 6, 2021, with the counting of election ballots suspended after the initial assault.

He told a superior in a text message, prosecutors said, that “this could get violent.” In another, he writes that “they should storm the capital and drag all the democrats into the streets and hold a popular trial.”

Prosecutors say videos showed Mr. Fischer shouting “Charge!” » before pushing his way through the crowd, using a vulgar term to reprimand the police officers and crashing into a line of them.

Mr. Fischer’s lawyers dispute some of that. But the question before the judges is legal and not factual: does the 2002 law cover the accusations against Mr. Fischer?

This may depend in part on the meaning of another term in the law: the requirement that the defendant acted “corruptly.” The meaning of this word is disputed.

Indeed, the majority of judges in an appeals court ruling against Mr. Fischer could not agree on the exact meaning of this word.

In the lead opinion, Justice Florence Y. Pan wrote that Mr. Fischer’s conduct met any plausible definition and that she would not choose among them.

But Judge Justin R. Walker said he was willing to agree with his opinion only on the condition that prosecutors be required to prove that Mr. Fischer acted corruptly in the sense of having had “the intent to procure an illegal advantage either for himself or for himself.” for another person.

The definition was crucial, Justice Walker wrote, limiting what would otherwise be the “breathtaking scope” of the law. “If I did not read the term ‘corrupt’ restrictively,” he wrote, “I would join the dissenting opinion. »

In dissent, Justice Gregory G. Katsas wrote that he would define the term “bribery” even more narrowly, requiring intent to procure “an unlawful financial, professional, or exculpatory advantage.”

“In contrast, this case involves the much more diffuse and intangible benefit of a preferred candidate remaining president,” Judge Katsas wrote.

Judge Walker said he doubted that interpretation, but added that Mr. Fischer’s conduct might even meet that strict standard.

In Yates v. United States, a 2015 case involving the Sarbanes-Oxley Act, the Supreme Court ruled that undersized red groupers were not “tangible objects” for the purposes of a different provision, which also aims to combat destruction of evidence.

This other provision makes it a crime to conceal or destroy “any record, document, or tangible object with the intent to impede, impede, or influence” a federal investigation. A fisherman was sentenced to 30 days in prison for throwing the fish overboard after an official found it.

On appeal, the fisherman argued that the term “tangible object,” read in the context of a law targeting white-collar fraud, did not apply to fish. By 5 votes to 4, the Supreme Court agreed.

“A fish is undoubtedly a tangible object,” Justice Ruth Bader Ginsburg wrote on behalf of four of the justices in the majority. But she said it would move the law away from its financial fraud mooring by considering it encompasses all items, regardless of size or importance, destroyed with obstructive intent.

In dissent, Justice Elena Kagan wrote that the simple terms of the law mattered more than its purpose.

“A fish is, of course, a discrete thing that possesses physical form,” Justice Kagan wrote, citing as authority the Dr. Seuss classic “One Fish, Two Fishes, a Red Fish, a Blue Fish.”

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