Joseph Fischer took the day off of work on January 6, 2021. Instead of patrolling the streets as an officer of the North Cornwall Township Police Department in Lebanon County, Pennsylvania, he decided to join the mob that stormed the U.S. Capitol.
Two months later, Fischer was indicted by a federal grand jury on seven counts, including charges of assaulting police officers defending the Capitol, disorderly conduct, and obstruction of an official proceeding.
According to the Justice Department, before traveling to Washington, D.C., Fischer sent text messages to various acquaintances that established his criminal intent. In one set of texts, he declared: “If Trump don’t [sic] get in we better get to war; Take democratic [C]ongress to the gallows . . . Can’t vote if they can’t breathe . . . lol.” In another text sent to his boss in North Cornwall, he wrote: “I might need you to post my bail . . . it might get violent.”
During the riot, the DOJ alleges, Fischer recorded a cellphone video in which he can be heard exhorting the mob to “Charge!” After he succeeded in entering the building, Fischer yelled “Motherfuckers” as he and other rioters crashed into a police line. Footage taken by one of the defending officers shows at least one was struck to the floor during the melee. Fischer remained inside the building for four minutes before being forcibly removed.
The outcome of the case will hinge on how the Supreme Court interprets a single word contained in the obstruction statute invoked against Fischer.
While Fischer’s guilt on all counts might appear obvious, he caught a break when his case was assigned to federal District Court Judge Carl Nichols. A member of the conservative Federalist Society and a former clerk to Supreme Court Justice Clarence Thomas, Nichols was nominated to the bench in 2019 by former President Donald Trump. In March 2022, Nichols dismissed the obstruction charge against Fischer on “textualist” grounds, holding the statute used to prosecute Fischer applied to the destruction of documentary evidence, but not to violent acts.
The issue is now pending before the Supreme Court, which heard oral arguments in the case on April 16. Judging from the transcript of the arguments, Fischer may well prevail.
The outcome of the case will hinge on how the Supreme Court interprets a single word contained in the obstruction statute invoked against Fischer. The statute, which is codified in section 1512 (c) of Title 18 of the U.S. Code, reads:
“(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.”
The question is whether the word “otherwise” expands the reach of the statute to any acts, including violent protests, intended to disrupt the January 6 joint session of Congress, or whether the law should be limited to evidence tampering.
To answer the question, the justices engaged in an intensive 100-minute colloquy with Fisher’s attorney Jeffrey Green and U.S. Solicitor General Elizabeth Prelogar about “textualism” as a tool of statutory interpretation.
As legal commentators have noted, the Supreme Court’s current conservative majority has long embraced textualism. Broadly defined, textualism argues that statutes should be understood according to the plain meaning of their terms, regardless of Congress’ intent or purpose in enacting the statutes, and without regard to any practical consequences.
Section 1512 (C) was enacted in 2002 in the aftermath of the Enron financial fraud scandal as part of the Sarbanes-Oxley Act. Green told the justices the statute was aimed at cleaning up corporate accounting practices, and that federal prosecutors had never before sought an indictment under the law for anything besides evidence tampering. In his view, “otherwise,” as used in the statute, means evidence tampering in ways other than the direct destruction or mutilation of evidence, such as the creation of fake documents.
Prelogar, on the other hand, argued that the plain meaning of “otherwise” referred to more than just tampering with documents, as long as perpetrators intend to interfere with, delay, or impair an official proceeding.
It is the position of the justices, of course, that will count. Chief Justice John Roberts appeared to be on Fischer’s side, remarking that because the word “otherwise” appears in subsection (C) (2), it must be read as limited by the preceding subsection (C) (1), which only applies to evidence tampering. Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh—who together with Roberts would comprise a decisive five-vote majority—also voiced support for a narrow reading of the law.
A ruling in Fischer’s favor will have broad implications not only for Fischer but for some 350 other insurrectionists who have been charged with obstruction.
Liberal Justices Elena Kagan and Sonia Sotomayor offered the opposite interpretation. Kagan argued the word “otherwise” was “meant to function as a backstop” to fill in “gaps” in the law to prohibit obstructive acts beyond Enron-like tampering. Sotomayor quipped that if you go to a theater and see a sign saying, “You will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance,” no one should be surprised if someone gets kicked out for “yelling.”
Somewhat surprisingly, Justices Amy Coney Barrett and Ketanji Brown Jackson joined forces to suggest a middle ground, observing that “otherwise” could include efforts to obstruct the arrival of the true Electoral College vote certificates on January 6, or the creation of false certificates.
A ruling in Fischer’s favor will have broad implications not only for Fischer but for some 350 other insurrectionists who have been charged with obstruction. Roughly 170 insurrectionists have already been convicted of obstruction and could have their cases reopened.
A ruling for Fischer could also derail part of Special Counsel Jack Smith’s election-interference prosecution of Donald Trump. Two of the four felony counts in Trump’s indictment allege obstruction and conspiracy to obstruct the January 6 joint session. Those counts could be saved by the statutory interpretations suggested by Justices Barrett and Jackson, but that is by no means certain.