The Supreme Court's latest decision from January 6 poses a problem for Trump

The news that the Supreme Court ruled Friday in favor of a request by the Jan. 6 defendants to narrow the scope of a charge against him and other rioters was seen in some quarters as a step forward for them and former President Donald Trump. But that reaction is misguided.

Yes, the court in Fischer v. United States narrowed the government’s broad approach to Section 1512(c)(2), which makes it a crime to obstruct an official proceeding. Defendant Joseph Fischer and a number of his fellow insurrectionists were charged under that law for storming the Capitol during the electoral count. And two of the four charges brought against Trump in special counsel Jack Smith’s prosecution of his January 6 crimes were brought under the same law. But there is far less of a victory for the insurrectionists and Trump than one might think.

The court's interpretation actually has the potential to strengthen the case against both Fischer and his ilk and Trump.

For starters, as the Justice Department explained Friday, the vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. Only 24 percent of the Jan. 6 defendants were charged with the offense contemplated in this case, and none were charged solely with that crime. And as a new analysis from Just Security points out, only 26 of these defendants pleaded guilty exclusively to the 1512(c)(2) offense and to no other crimes; and all other post-trial guilty pleas and guilty verdicts included additional federal crimes beyond the 1512(c)(2) offense.

Before the court's decision, some feared that the judges could nevertheless severely limit this subset of the Jan. 6 prosecutions, eliminating the most serious charge from the longest prison sentence, and also significantly reducing the case of Trump. This has not happened, and the courts' interpretation actually has the potential to strengthen the case against both Fischer and his ilk and Trump.

At first glance, the court's opinion seems like a simple legalistic clarification. The full text of the law reads:

1512 (c) Whoever by corruption

(1) modifies, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the intent to undermine the integrity of the objects or their availability for use in an official proceeding ; Or

(2) obstructs, influences or otherwise impedes any official proceeding, or attempts to do so,

shall be fined for this offence or sentenced to imprisonment for a term not exceeding 20 years, or both.

The question the court faced was: Does Part II of the statute include any action that might obstruct, influence, or interfere with an official proceeding? Or is it limited in the same way as Part I, to conduct that in any way prejudices the evidence the government uses in an official proceeding?

Focusing on the legislative text is usually a wise strategy when arguing before the conservative Supreme Court, the government has argued for a broader position. And nearly every judge on the D.C. federal trial court and the D.C. Circuit Court of Appeals agreed with the government's interpretation: with the circuit upholding dozens of convictions of people accused of interference violent in the electoral count.

But Fischer, one of the Jan. 6 rioters who allegedly assaulted a police officer, has appealed to the Supreme Court. His lawyers have argued that the law passed in the wake of the Enron accounting scandal only addresses the type of document destruction at issue in that corporate malfeasance.

The Court charted a middle course between the government's views and those of Fischer.

In a bipartisan 6-3 decision, with Justice Ketanji Brown Jackson joining five Republican-appointed justices, the court followed neither the government's nor Fischer's proposal. Instead, the majority adopted an approach similar to that proposed by one of the authors (Seligman) in an amicus brief submitted to the court.

As Chief Justice John Roberts, who wrote the majority opinion, adopted the court’s position, which toed a middle path between the government’s and Fischer’s positions, holding that Section 1512(c) covers some conduct that obstructs an official process, but not all. In other words, the court did not adopt the government’s position, which it said would criminalize a broad range of prosaic behavior, exposing activists and lobbyists to decades in prison. But the position it adopted still clearly covers the conduct Trump is accused of, and likely the conduct violent January 6 defendants like Fischer are accused of as well.

The court held that the type of obstruction described in the second paragraph of the statute, which the government argued was a catch-all for conduct not covered by the first paragraph, must be similar to the conduct described in the first paragraph, which targets any person who alters, destroys, mutilates, or conceals a record, document, or other object … with the intent to impair the integrity of the object or its availability for use in an official proceeding.

The majority's interpretation is reasonable, even if we disagree with it. In our view, Justice Amy Coney Barrett's dissent, joined by Justices Elena Kagan and Sonia Sotomayor, correctly interpreted the law and captured why its use is appropriate in the January 6 cases. As Barrett noted, laws often go deeper than the issue that inspired them and, under the rules of statutory interpretation, we stick to the text anyway. In effect, Barrett continued, the Court, in abandoning this approach, is jumping back textually to find a way to narrow the scope of paragraph (c)(2).

But ultimately, the technical legal dispute between the majority and the dissent will make no difference to most, if not all, lawsuits filed in the wake of the January 6 insurrection. Although Roberts did not accept the government's interpretation, he also rejected Fischer's extreme position that only direct defacement of evidence, such as destruction of documents or other means prevents the government from using tangible evidence, was prohibited. To prove a violation of Section 1512(c)(2), he wrote, the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of the records , documents, objects or other elements used in the procedure. or attempted to do so.

This very broad rule applies to both Trump and the January 6 violent defendants. No one disputes that the vote count is an official proceeding. And no one can deny that the election certificates are records, documents, objects, or … other things used in the vote count. The only question, then, is whether the defendant interfered with the availability or integrity of the election certificates for use in the vote count.

The headline that the Court rejected the government's argument tells only half the story, and the least important one.

In Trump's case, the answer is clearly yes. He allegedly orchestrated a plan to interfere with Congress' recognition of the actual election certificates on January 6. He undoubtedly altered the availability or integrity of these certificates by arranging the submission of competing fraudulent certificates and pressuring Vice President Mike Pence to ignore them. the real ones.

The answer is also yes for the other January 6 defendants, who drove congressional staffers from the Capitol with the ceremonial mahogany boxes containing these real election certificates. It is difficult to imagine a more visceral example than that of the attack on freedom of expression.[ing] the availability of electoral certificates for use in the electoral count.

The case of Fischer v. United States is a common story. The government opted for a broad interpretation of a criminal law that the courts ultimately narrowed. But the restrictive interpretation adopted by the Court is still broad enough to encompass the conduct of which Fischer and Trump were accused. The headline that the Court rejected the government's argument only tells half the story, and the less important half. Joseph Fischer will likely be convicted and sentenced to prison for violently storming the Capitol and attacking police officers while he was there. He will likely do so as a convicted felon under section 1512(c)(2). And nothing in this opinion at least will prevent Trump from suffering the same fate.

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