Legal Alerts
5.28.24
In Fischer v. U.S., the Supreme Court will decide the scope of Section 1512(c) of the Witness, Victim, or Informant Tampering Statute, 18 U.S.C. § 1512(c)—specifically, whether it applies only to evidence spoliation (and related misconduct), or more broadly covers obstructions of official proceedings.
Fischer attended the “Stop the Steal” rally to protest Congress’s certification of the 2020 Presidential Election Electoral College Results. Fischer was also among those who breached the Capitol, forcing Congress to recess (and stop certifying results) until the building was secured. Ultimately, a federal grand jury indicted Fischer for multiple offenses, including one under Section 1512(c), which provides:
(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 some other type of evidence impairment, as required for the offense. The District Court agreed. A divided panel of the D.C. Circuit reversed, holding the charge was valid because Fischer allegedly “obstruct[ed], influence[d], or impede[d] an official proceeding[.]” United States v. Fischer, 64 F.4th 329, 332 (D.C. Cir. 2023).
At oral argument, Justice Thomas, focused on the relationship between Section (c)(1) and Section (c)(2), asking whether the similarity between the two sections is evidence impairment or obstructing an official proceeding. Fischer responded that the common element is evidence impairment because “otherwise” means “to do similar conduct in a different way.” Thus, Section (c)(2) should be understood to apply to “impairment of evidence being done in a different way.”
Justice Sotomayor’s comments suggested she viewed Section (c)(1) and Section (c)(2) as distinct. She noted, for instance, that Section (c)(1) does not require a defendant “to have actually impeded [a] proceeding,” but Section (c)(2) does.
Justice Kagan questioned Fischer’s interpretation observing that there were “multiple ways” Section (c)(2) could have been drafted to be limited to evidence impairment, but that it was not. Justice Kagan also challenged Fischer’s argument that a broad interpretation of Section (c)(2) would render other sections superfluous, reasoning those concerns would not apply because Section (c)(2) is a “backstop provision” meant to “fill gaps.”
Justice Barrett and Justice Jackson both suggested that, even under Fischer’s “evidence impairment” construction, the charge could still be viable because he would have interfered with Congress’s using evidence (i.e., electoral certificates) to count—or investigate—the proper election results.
During the United States’ argument, several justices expressed concern about the breadth of its interpretation. Although the United States stated Section (c)(2) would not punish minor disruptions of court hearings or other proceedings, Justice Alito asked what the textual support for that position was when there is no “de minimis” or “minor” interference exclusion in the section.
Chief Justice Roberts, recalling the Court’s recent opinion in Bissonnette v. LePage Bakeries Park St., LLC, expressed that a general catch-all provision is “controlled and defined by reference to the terms that precede it.” Under that construction, he explained, the specific terms from Section (c)(1) about evidence impairment would carry over into Section (c)(2).
The case was argued on April 16, 2024. A decision is expected by the end of the term. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.
For more information, please contact Chantel Febus, James Azadian, Christopher Sakauye, Monika Harris, A. Joseph Duffy, IV, or Puja Valera.
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