Supreme Court appears split over obstruction law used to charge Trump, Jan. 6 rioters

The Supreme Court heard oral arguments Tuesday in a case that could impact the prosecutions of hundreds of Jan. 6 participants, as well as former President Donald Trump’s Jan. 6 criminal case. 

The case, Fischer v. United States, centers around a federal statute that prosecutors across the country have used to charge Jan. 6 defendants. The 2002 law, 18 U.S.C. § 1512(c), prohibits the obstruction of congressional proceedings — in this case, the certification of the 2020 election. 

The Department of Justice said more than 350 defendants have been charged under the statute with corruptly obstructing, influencing, or impeding an official proceeding. People convicted of obstruction of an official proceeding under 1512(c) face up to 20 years in prison. 

The petitioner, Joseph Fischer, brought the case to the Supreme Court following a U.S. Court of Appeals decision to reinstate an obstruction charge against him that had been dismissed by a D.C. District Court judge. 

Who is Joseph Fischer and what did he do?

Joseph Fischer is a former police officer and 18-year veteran of the North Cornwall Township Police Department in Pennsylvania. He was still with the department at the time of the riot but was later terminated for allegedly failing to comply with an investigation into his actions. 

According to court documents, Fischer had been preparing to participate in Jan. 6 since at least December 2020. 

The documents state that Fischer wrote a text on Dec. 16, 2020, saying, "Take democratic congress to the gallows," followed by "Can’t vote if they can’t" He also texted his police chief saying, "I might need you to post my bail," adding, "it might get violent." 

Prosecutors showed evidence that at approximately 3:24 p.m. on Jan. 6, Fischer was just outside the East Rotunda doors when he began recording on his cell phone yelling, "charge!" 

READ MORE: Jan. 6 prosecutions: A look at cases, charges by the numbers

The documents say he was pushed out of the building by police after about four minutes inside. 

"Got pepper balled and OC sprayed, but entry into the Capital was needed to send a message that we the people hold the real power," he wrote on Facebook the following day.

Fischer was arrested on Feb. 19 on seven counts including civil disorder, obstruction of an official proceeding and two misdemeanor charges. 

U.S. District Court Judge Carl Nichols dismissed the obstruction charge reasoning that the law is meant to apply to the destruction of physical evidence or testimony rather than the congressional certification of election results.

This judge broke with 14 other trial judges who upheld prosecutors’ use of the law to prosecute rioters. Federal prosecutors challenged the ruling and a U.S. Court of Appeals for District of Columbia Circuit decided to reinstate the charge against Fischer. 

He’s now being represented by attorney Jeffrey Green as he pleads his case in the high court. 

What are the arguments? 

The law that Fischer is being prosecuted under is Section 1512 - Tampering with a witness, victim, or an informant, which includes a clause stating that criminal charges would apply to anyone who 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."  

Some of what the justices questioned "otherwise," which some say could apply to tampering outside of physical evidence and could include actions that intend to obstruct an official proceeding.

"This may not be what the statute means. So they were charged under the statute that meant more obstructing official proceedings but not like this. It meant more like tearing up documents that would be relevant to an official proceeding," former Assistant U.S. Attorney David Katz told FOX 5. 

Right now, the court’s conservative majority seems skeptical of the Justice Department’s broad scope of the statute, which considers the actions of the Jan. 6 rioters an attempt to obstruct Congress’ joint session to confirm President Joe Biden’s 2020 victory. 

READ MORE: Supreme Court grapples with Trump's eligibility to be president again after Capitol insurrection

Conservative Justice Brett Kavanaugh asked the Biden administration's lawyer why aren't the six other charges against Fischer, including civil disorder and assault, good enough? 

Justices Samuel Alito and Neil Gorsuch appeared skeptical as well, testing the outer limits of the government's interpretation with hypotheticals about protesters interrupting Supreme Court oral arguments or blocking traffic on highways. It was not just the conservative justices who seemed skeptical. 

Justice Ketanji Brown Jackson, a Biden appointee, reiterated that the obstruction law was passed in a real-world context in the wake of the 2001 Enron scandal where there was document destruction and nothing suggests Congress was thinking about obstruction more generally.

"The way that the obstruction statute was promulgated and it was debated in the houses of Congress, it was about financial crimes. The idea was that if you ordered somebody else to destroy a document that was a crime but if you yourself tore up some of the documents that was not a crime because some of the statutes sure look like it was to get at the tearing of documents and financial crimes, not marauding the Capitol threatening the vice president and tearing up a note that was on some congressperson's desk," Katz said. 

Green argues that the DOJ’s interpretation of the law would turn a "catch-all provision into a dragnet." 

How would this ruling impact Trump? 

This particular statute is also at the center of the case brought against Trump by Special Counsel Jack Smith. If the court rules in favor of Fischer, it could potentially sway the outcome of Trump's case.

"For those defendants who weren't charged with anything else, it would mean the charges against them would have to be dispensed because the charges under the statute didn't apply to them. It would also have implications for former President Trump, of course, because half the things he is charged with are under this obstruction statute," Katz said. 

But Special Counsel Smith argued in a Supreme Court brief last week that even if the court adopts Fischer's more narrow interpretation of the obstruction statute, the charges against Trump are valid because of his alleged efforts to use fake electoral certificates.

READ MORE: Supreme Court will hear arguments in Trump's appeal against Jan. 6 criminal charges

Trump was indicted in August 2023 on four federal charges, including obstruction of and attempt to obstruct an official proceeding and conspiracy to obstruct an official proceeding. 

He pleaded not guilty to the charges last year and earlier this year, appealed a lower court decision that rejected his claim of "absolute immunity" that would allow him to avoid facing criminal charges related to Jan. 6. 

Prosecutors are tasked with proving beyond a reasonable doubt that Trump's actions in the run-up to Jan. 6 constituted criminal action against the government of the United States. 

The Supreme Court has previously upheld that presidential immunity should apply to civil cases but Trump’s lawyers argue that it should extend to criminal cases as well.

The justices will hear arguments in Trump v. U.S. on April 25.