A former police officer charged after he entered the U.S. Capitol for four minutes on Jan. 6, 2021, attacked the legal theory underpinning the government’s case against him in a new filing with the Supreme Court.
The Supreme Court will hear oral arguments in the case in mid-April.
Joseph W. Fischer, from Jonestown, Pennsylvania, was indicted on several counts following the Capitol breach on Jan. 6, including obstructing an official proceeding under Enron-era obstruction law 18 U.S. Code Section 1512(c).
The charge relates to the obstruction of the congressional certification of the 2020 presidential election results, a proceeding that paved the way for the inauguration of President Joe Biden two weeks later.
The petitioner in this case, Mr. Fischer, along with other Jan. 6 defendants, argues that they should not have been charged under section 1512(c), the evidence-tampering provision of the Corporate and Criminal Fraud Accountability Act of 2002, which is part of the Sarbanes-Oxley Act aimed at curbing wrongdoing on Wall Street.
The legislation came in the wake of fraud-related scandals at Enron Corp. and other major corporations. Enron employed dubious accounting practices to conceal falling profits and exaggerate earnings, and its employees reportedly began destroying paperwork when they learned that indictments were in the works.
Some defendants who arrived at the Capitol after Congress was evacuated on Jan. 6 were also charged with obstructing an official proceeding. Several defendants have argued unsuccessfully at trial that they couldn’t have obstructed Congress because they weren’t present in the Capitol until after lawmakers left the complex.
Legal experts, including the defense counsel, have criticized the Biden administration for prosecuting defendants, including former President Donald Trump, under the law, arguing it is an inappropriate vehicle for the prosecutions.
The wording of 1512(c) is focused on documentation and ensuring it is made available for official proceedings.
Section 1512(c) states: “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.”
Mr. Fischer is wrong to ask the court “to depart from the ordinary meaning of the statute by limiting it to acts that impair the integrity or availability of evidence,” Ms. Prelogar wrote. “That interpretation finds no sound foothold in the text and would undermine Congress’s effort to prohibit unanticipated methods of corruptly obstructing an official proceeding, such as petitioner’s alleged conduct in joining a violent riot to disrupt the joint session of Congress certifying the presidential election results.”
The Fischer brief states that the government is saying that the court should “twist” Section 1512 to create an “omnibus obstruction offense for prosecutors to use in future cases.”
“That is a convenient rationale because until the January 6 prosecutions, no one had extended subsection (c)(2) beyond instances involving evidence impairment ... If there ever were a textual case in which judicial restraint is called for because Congress can broaden a statute to fit the government’s desired scope, this is that case.”
The government is trying to “radically expand” the scope of the legal provision through a “flawed application of statutory-interpretation principles” that leads to “a boundless reading of Section 1512(c)(2).”
“The Department of Justice should get an award for creativity and ... [for] how they’ve come up with ways of using Sarbanes-Oxley well beyond what anybody ever thought it would be [used for].”
There are “so many statutes that are so vague these days that the Department of Justice often brings charges against people for things, that you have no idea that it’s supposedly criminal conduct because Congress didn’t intend it to be criminal conduct,” Mr. Burling said.
Mr. Burling said the government is taking the “otherwise obstructs” part of Section 1512 and using it “as a free-floating provision where anybody who otherwise obstructs any official proceeding, or attempts to do so can be subject to 20 years [in prison].”
Mr. Fischer also says in his brief that the government is misrepresenting his legal position and the facts of the case.
The government stated in its brief that Mr. Fischer “does not meaningfully dispute that his alleged conduct ‘obstruct[ed]’ and ‘impede[d]’ an official proceeding.”
“That is both inaccurate and question-begging,” Mr. Fischer says in his brief. “It is inaccurate because Congress had recessed well before Mr. Fischer’s four-minute entry and departure from the Capitol.”
Mr. Fischer was in Maryland, not Washington, when the crowd breached the Capitol, the brief states. Contrary to government allegations, a video shows that Mr. Fischer did not run toward a police line or crash into it; “he was knocked to the ground (as was an officer) by the crowd surge. Finally, he was not ‘forcibly removed’; he walked out on his own,” according to the brief.
The Supreme Court is scheduled to hear oral arguments in Fischer v. United States on April 16.
