Decision Alert: Supreme Court Holds Government Must Show Jan. 6 Defendant Impaired or Attempted To Impair the Availability or Integrity of Evidence to Convict Him of Obstructing Congress’s Efforts To Certify the 2020 Election

On June 28, 2024, the Supreme Court held in Fischer v. United States that, to prove a violation of 18 U.S.C. § 1512(c)(2), the government must establish 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.

As summarized in Dykema’s May 2024 Legal Alert, Fischer attended the “Stop the Steal” rally to protest Congress’s certification of the 2020 Presidential Election Electoral College Results. Fischer was among those who breached the Capitol, forcing Congress to recess (and to stop certifying results) until the building was secured. Ultimately, a federal grand jury indicted Fischer for multiple offenses, including one under Section 1512(c):

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.

Fischer moved to dismiss the Section 1512(c) charge, arguing he was not alleged to have engaged in evidence spoliation or impairment. The district court agreed. A divided panel of the D.C. Circuit reversed, holding the charge was valid because the term “otherwise” in Section 1512(c)(2) included all means of corrupt obstruction, influence, and impairment of an official proceeding.

The Supreme Court reversed. To determine the scope of the residual “otherwise” clause in Section 1512(c)(2), the Court looked to the particular type of criminal conduct enumerated in Section 1512(c)(1)—various acts of evidence spoliation. Applying the related interpretive canons of noscitur a sociis and ejusdem generis, the Court determined that Congress intended to narrowly tether the scope of conduct encompassed under Section 1512(c)(2) to acts similar to, but not enumerated in, Section 1512(c)(2), rather than broadly outlawing all acts of obstructing an official proceeding. The Court recognized that Congress enacted the legislation intending to plug a specific loophole in the statute that imposed liability on anyone who corruptly persuaded another person to shred documents, but failed to impose liability on a person who destroyed records himself, reasoning that an unbound interpretation of Section 1512(c)(2) to include all acts of obstruction would render superfluous Congress’s careful delineation of dozens of means of committing obstruction and the assigned penalties, and could unintentionally criminalize a broad swath of activities commonly undertaken by activists and lobbyists.

Justice Jackson concurred but poignantly asserted that Fischer’s prosecution “can, and should, proceed” under the Court’s interpretation of Section 1512(c)(2) because Fischer’s actions may have impaired (or attempted to impair) Congress’s use of records, including those of the electoral votes themselves, in its official proceeding to certify those votes.

Justice Barrett, joined by Justices Sotomayor and Kagan, dissented, arguing that the majority abandoned the straight-forward and very broad text of Section 1512(c)(2), and instead, employed “textual backflips” to improperly narrow the plain-meaning of the law.

Takeaways

• Aside from impacting other Jan. 6 defendants charged with violating Section 1512(c)(2), this decision may impact defendants charged with violating broad, “catch-all” provisions of other statutes that similarly enumerate violative acts.
• Justice Jackson’s concurring opinion provides a potential path for prosecuting Fischer and other Jan. 6 defendants, even under the Court’s narrow interpretation.

For more information, please contact Chantel Febus, James Azadian, Ryan VanOver, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.