On the face of it, the case the Supreme Court will hear on Tuesday appears technical, requiring justices to analyze a decades-old law that mostly dealt with the destruction of business records.
But the case has the potential to drop half of the federal charges against former President Donald J. Trump for a plan to subvert the 2020 election, involve hundreds of January 6 prosecutions and help determine the very meaning of the Capitol attack.
The immediate question for the justices is whether a federal law primarily aimed at white-collar crime, the Sarbanes-Oxley Act of 2002, can be used to prosecute mob members who stormed the Capitol, including the defendant in the case, Joseph W .Fisher, a former Pennsylvania police officer. More than 300 people have been prosecuted under the law, which makes it a crime to obstruct an official process.
The immediate purpose of the law, enacted in the wake of the Enron collapse, fits the prosecutions that arose out of the violent uprising that forced a halt to the constitutionally required counting of electoral votes in Congress. But its language is broad, and prosecutors say its simple terms cover Mr. Fisher’s conduct.
Mr. Trump is not involved in the case, but could benefit from a ruling in Mr. Fischer’s favor. If the Supreme Court rules that what Mr. Fisher is accused of is not covered by the 2002 law, Mr. Trump will no doubt argue that the law does not apply to his actions either.
Even if he succeeds, however, he would still face two other charges not contested in Mr. Fisher’s appeal: conspiracy to defraud the United States and conspiracy to interfere with constitutional rights.
In a separate case to be heard on April 25, the court will hear arguments on whether Mr Trump is immune from prosecution on any of the charges against him.
The question before the judges in Mr. Fisher’s case is one of law, not fact. They must decide what the statute means, not what Mr. Fisher did. That will be a question for the jury if the judges let the charge stand.
But documents filed in the case and court records present conflicting depictions of Mr. Fisher’s behavior that seem emblematic of a political discourse based on alternative realities.
According to the government, Mr. Fisher sent text messages to his boss, the police chief of North Cornwall Township, Pa., about his plans for Jan. 6. “It can get violent,” he said in one. In another, he wrote that “they should storm the capitol and drag all the democrats into the street and have a mob trial.”
Prosecutors say video showed Mr. Fisher yelling “Indictment!” before pushing through the crowd and entering the Capitol at around 3:24 p.m. on January 6. He used a vulgar term to berate the officers, prosecutors said, and ran into a number of them. As the government said, it was “forcefully removed approximately four minutes after entry.”
Mr Fisher’s lawyers, however, stressed that he had attended the rally at the Ellipse but was not part of the original attack.
“When the crowd breached the Capitol, Mr. Fisher was in Maryland, not Washington,” his attorneys wrote in their filing. “He returned after Congress had adjourned.” (“Recessed” isn’t the first word that comes to mind to describe lawmakers on the run from a violent mob.)
“His previous Facebook posts about violence, when read in context, refer to his belief that antifa planned to disrupt the rally,” they continued. He had shouted “Charge!” in “obvious jest,” they added.
The alleged video evidence shows, his lawyers wrote, that Mr. Fisher “did not ‘run’ toward the police line or run into it.” knocked to the ground (as was an officer) by the surge of the crowd.’
“After all,” they added, “he was not forcibly removed. he left alone.”
These starkly different accounts are repeated on a larger scale in supporting briefs that focus on the nature and meaning of January 6, reflecting efforts by former President Donald J. Trump and his supporters to rewrite history and reframe the attack as legitimate policy. protest.
Republican lawmakers allied with Mr. Trump, including Senator Tom Cotton of Arkansas and Representative Jim Jordan of Ohio, said in a brief briefing that “the Department of Justice and the D.C. jury easily attributed immorality to the genuine conviction of many defendants of January 6 that there was fraud during the 2020 presidential elections.”
Protests are part of the fabric of political life, they wrote, adding that prosecutors’ interpretation of the statute would have applied to a peaceful rally under Martin Luther King Jr.
“Advocacy groups throughout history have organized trips to Washington timed for congressional or executive consideration of favored items,” the brief said, citing a magazine article. “Most famously, the 1963 civil rights ‘March on Washington’ was ‘designed to force President Kennedy to support the Civil Rights Act’ then pending in Congress.”
The brief discussion discussed other protests, including the interruption of Supreme Court confirmation hearing for Justice Brett M. Kavanaugh, praising the Trump administration’s restraint.
The Biden administration, in its composition, made several distinctions. The law, he said, “covers acts which prevent a process — not acts, such as lobbying or peaceful protest, that do not easily qualify as rising to the level of obstruction or that independently enjoy First Amendment protection.”
The document added that the law only applied to conduct aimed at a specific process and required proof that the defendant had engaged in bribery.
Mr. Trump’s critics — including J. Michael Luttig, a conservative former appeals court judge, and John Danforth, a former Republican senator from Missouri — countered that the comparisons pressed by Mr. Cotton and Jordan were deeply misplaced.
“There is simply no historical comparison between the consequences of criminal acts as opposed to electing a new president — as seen by our Civil War and the invasion of January 6, 2021 — and the ‘what if’ paradigms discussed in the Cotton-Jordan Brief” , they wrote in a brief. “Indeed, no one was physically harmed” as part of “any of these examples.”
“And none of these examples,” they added, “threatened something as fundamental to our constitutional system as the peaceful transfer of executive power.”
Richard D. Bernstein, a lawyer for Mr. Luttig and other former officials who signed the affidavit, said it was vital to allow cases under the obstruction law to proceed.
“These obstruction prosecutions prevent potential future intrusions into Congress aimed at preventing the peaceful transition of power,” he said.
But the legal question in the case is relatively narrow: Does the 2002 law cover what prosecutors say Mr. Fisher did?
The Supreme Court said the purpose of the law was “to protect investors in public companies and restore confidence in financial markets following the collapse of the Enron Corporation.”
At least in part, it was intended to address a loophole in the federal criminal code at the time: it was a crime to persuade others to destroy records related to an investigation or official proceeding, but not to do so yourself.
The Act sought to fill the gap in a two-part provision. The first part focused on evidence, saying that anyone who corruptly “alters, destroys, mutilates or conceals a record, document or other object” to influence an official process is guilty of a felony.
The second strand, at issue in Mr Fischer’s case, makes it a crime to “otherwise” corruptly obstruct, influence or obstruct any official proceeding.
The heart of the case, Fischer v. United States, No. 23-5572, is the axle from the first part to the second part. The usual meaning of “otherwise,” prosecutors say, is “in a different way.” This means, they say, that obstructing official proceedings need not involve destroying evidence. The second part, they say, is a broad conception.
Mr. Fischer’s lawyers counter that the first part must inform and limit the second — meaning the obstruction of justice must be linked to the destruction of evidence. They would read “otherwise” as “similarly”.
The U.S. Court of Appeals for the District of Columbia Circuit disagreed, with Judge Florence Y. Pan writing that “any discrepancy between Congress’s primary purpose in amending the statute and the broad language Congress chose to include” must be resolved ” in favor of the plain meaning of the text”.
Dissenting, Judge Grigorios G. Katsas wrote that the second part of the provision applies “only to acts affecting the integrity or availability of evidence.”
The government’s interpretation, he wrote, “would sweep away advocacy, lobbying, and protest—common mechanisms through which citizens seek to influence official processes.”
