Supreme Court Narrows Which Charges Can Be Brought Against Jan. 6 Rioters

The Supreme Court has made it harder for the government to charge participants in the Jan. 6, 2021, insurrection with obstructing an official proceeding. The decision, handed down on Friday, casts uncertainty over hundreds of charges brought against insurrectionists.

Joseph Fischer, a now-former police officer who stormed the Capitol on Jan. 6, challenged a charge against him brought under a provision of the 2002 Sarbanes-Oxley accounting reform law that makes it illegal to obstruct an official proceeding. He argued the provision was meant to apply only to the obstruction of a proceeding by altering or destroying documents, and thus should not apply to the events of Jan. 6. The court’s majority agreed.

In a 6-3 ruling authored by Chief Justice John Roberts, the court declared that the government had an obligation to prove that a defendant “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.”

The ruling, however, saw something of an unusual ideological split: Conservative Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neil Gorsuch joined the majority opinion, with liberal Justice Ketanji Brown Jackson writing a concurrence. Justice Amy Coney Barrett, meanwhile, joined liberal Justices Elena Kagan and Sonia Sotomayor in dissenting.

The court’s decision will likely lead to the dismissal of similar charges brought against other participants in the Jan. 6 attack on the Capitol. About 170 participants in the attack have been convicted for obstructing an official proceeding.

Former President Donald Trump, the presumptive 2024 Republican presidential nominee, could also see his charge under this statute dismissed in the case brought by federal prosecutors for his role in and leading up to the events of Jan. 6. Trump would still face three other federal charges related to his effort to overturn the 2020 election.

The decision hinged on the definition of the word “otherwise” in the statute in question. The full provision reads (emphasis added):

Fischer argued that “otherwise” should be read to mean “similar to,” while the government stated that “otherwise” meant “in a different manner.”

If the word is read to mean “similar to,” then the provision about obstruction of an official proceeding should be read as flowing from and connected to the document-related language of the preceding line. This would require charges be brought only when a person obstructs an official proceeding by altering, destroying or mutilating records or documents.

The government’s reading of the statute, however, rejected the connection between the two lines. This had allowed charges to be brought against anyone who obstructed an official proceeding in any manner, regardless of whether it involved documents.

The court ruled in favor of Fischer’s definition, saying the law was meant to close loopholes in criminal law banning evidence destruction, and that prior court precedents have defined “otherwise” in a similar manner.

“Guided by the basic logic that Congress would not go to the trouble of spelling out the list in (c)(1) if a neighboring term swallowed it up, the most sensible inference is that the scope of (c)(2) is defined by reference to (c)(1),” Roberts wrote.

“If, as the Government asserts, (c)(2) covers ‘all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment’ ... there would have been scant reason for Congress to provide any specific examples at all. The sweep of subsection (c)(2) would consume (c)(1), leaving that narrower provision with no work to do.”

The decision also questioned the potential ripple effect of the government’s interpretation.

“[The government’s] novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison,” Roberts wrote. “As the Solicitor General acknowledged at oral argument, under the Government’s interpretation, a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence.”

In her concurring opinion, Jackson pushed a similar point.

She wrote that “it beggars belief that Congress would have inserted a breathtakingly broad, first-of-its-kind criminal obstruction statute (accompanied by a substantial 20-year maximum penalty) in the midst of a significantly more granular series of obstruction prohibitions without clarifying its intent to do so—not in the text of the provision itself, nor in the surrounding statutory context, nor in any statement issued during the enactment process.”

In a dissent joined by Kagan and Sotomayor, Barrett disagreed. While the dissent acknowledged that “admittedly, events like January 6th were not its [the statute’s] target,” Barrett argued that it was understood that laws applied more broadly than the individual circumstance that had prompted their creation. She wrote that “statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.”

Fischer is not entirely off the hook. He still faces multiple charges for his Jan. 6 actions, including assaulting a police officer and disorderly conduct. The vast majority of insurrectionists charged under the statute also face other charges.

The dismissal of Trump’s charge could be complicated by the fact that he was directly involved in a scheme to obstruct documents: A key element of his attempt to overturn his reelection loss was the replacement of the real electoral votes cast in six swing states with fake elector slates during the counting of the votes on Jan. 6. Federal prosecutors could argue that Trump was explicitly involved in an attempt to obstruct an official proceeding by altering documents with the intent of impairing their availability during that proceeding in a way that individual insurrectionists were not.

Trump claims the fake electors scheme was not a crime since states have sent multiple elector slates in the past when the outcome has been disputed. He also argued to the Supreme Court that he has an “absolute immunity” from prosecution for any official act done while he was in office. State prosecutors have charged 25 fake electors in three states for making false claims and submitting fraudulent documents.