Conservative Supreme Court justices seemed generally sympathetic on April 16 to a former police officer charged under an accounting reform law after he entered the U.S. Capitol for four minutes on Jan. 6, 2021.
The case is being closely watched because once the Supreme Court rules, its decision could affect hundreds of Jan. 6 prosecutions, including the Jan. 6-related case against former President Donald Trump.
Joseph Fischer, from Jonestown, Pennsylvania, was indicted on several counts following the Capitol breach on Jan. 6, 2021, including obstructing an official proceeding under Enron-era obstruction law 18 U.S. Code Section 1512(c). Convictions under the section can lead to 20 years in prison.
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.”
The charge relates to the alleged 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.
Mr. Fischer argues that he should not have been charged under section 1512(c), an evidence-tampering provision 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, 2021, 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. Mr. Fischer also says he left the complex before Congress attempted to move forward with certifying the election and was in Maryland at the time of the security breach.
Legal experts, including Mr. Fischer’s defense counsel, have criticized the Biden administration for using the law against defendants, including former President Donald Trump, arguing it is an inappropriate vehicle for the prosecutions.
Lawyers argue that the accounting reform law under which Mr. Fischer and others have been charged is being used by the Department of Justice to prosecute people who were exercising their First Amendment right to protest the congressional certification of election results.
During oral arguments on April 16, Mr. Fischer’s attorney Jeffrey Green said the Biden administration was wrong to charge his client under 1512(c), which was intended to be used for evidence tampering only.
Congress passed the statute to prevent the destruction of evidence, he said.
“The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct,” the lawyer said.
“A Sarbanes-Oxley-based Enron-driven evidence tampering statute is not one of them.”
Until the Jan. 6 prosecutions, 1512(c) had never been used for anything other than evidence tampering, he said.
U.S. Solicitor General Elizabeth Prelogar said 1512(c) is not a narrow legal provision.
The provision “by its terms is not limited to evidence impairment. Instead, it’s a classic catch-all” with regard to obstruction, she said.
Justice Neil Gorsuch echoed concerns expressed by civil libertarians about the broad sweep of the legal provision.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” he said.
In December 2023, Rep. Jamaal Bowman (D-N.Y.) pled guilty to a misdemeanor for pulling a fire alarm in a congressional building on Sept. 30, 2023, en route to voting on stopgap spending legislation. Republicans compared him to Jan. 6 rioters but Mr. Bowman claimed he made a mistake. He agreed to pay a $1,000 fine. He was not charged under the Sarbanes-Oxley provision.
Ms. Prelogar said it might but the government would have to have proof of “corrupt” intent.
Justice Samuel Alito asked if protesters obstructing a trial would violate the statute.
“For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses, and I don’t think any one of those protesters has been sentenced to even one day in prison. But why isn’t that a violation of 1512(c)(2)?” he asked.
Ms. Prelogar replied, “There would be the backstop of needing to prove corrupt intent.”
Justice Alito asked whether protesters blocking roads and bridges around the nation’s capital, as happened on April 15 when pro-Palestinian protesters shut down the Golden Gate Bridge in San Francisco, would violate the statute.
Ms. Prelogar said she did not believe that would violate the statute.
She also said Mr. Fischer went to the Capitol intending to prevent Congress from conducting business.
“He had said in advance of January 6 that he was prepared to storm the Capitol [and was] prepared to use violence. He wanted to intimidate Congress. He said, ‘They can’t vote if they can’t breathe,’” she said.
At the Capitol, he allegedly assaulted a law enforcement officer, and that action impeded the ability of police to regain control and let Congress do its job, she said.
“It is entirely appropriate for the government to seek to hold petitioner accountable for that conduct with that intent,” Ms. Prelogar said.
In a recent brief, Mr. Fischer’s attorneys denied he committed acts of violence on Jan. 6, 2021, and said he was instead a victim of violence. They said that he was knocked to the ground by a crowd surge and that contrary to government claims that he was forcibly removed from the complex, he walked out on his own.
Justice Amy Coney Barrett asked if the protesters could have been charged under the section even if they had not breached the Capitol.
If they had remained outside chanting slogans but their goal was to “stop the proceeding, stop the counting of votes,” would that “violate the statute?” the justice said.
Ms. Prelogar said if that had happened when Congress had to go into recess from a joint session because of a security risk, then it “probably would be chargeable” if there was evidence of criminal intent.
After Mr. Green characterized the government’s use of the previously obscure Section 1512(c) provision as unprecedented, Justice Sonia Sotomayor said that use was justified given what happened on Jan. 6.
“We’ve never had a situation before … like this with people attempting to stop a proceeding violently. So I’m not sure what a lack of history proves,” she said.
Mr. Green replied, “I’m not sure that’s true,” and referenced the weeks of attacks on the federal courthouse in Portland, Oregon, that took place in 2020.
Later, in his rebuttal argument, Mr. Green said prosecuting people under the section for protesting, would “chill protected activities. People are going to worry about the kinds of protests they engage in even if they’re peaceful, because the government has this weapon.”
The Supreme Court is expected to rule on the case, Fischer v. United States, by the end of June.
