Fischer v. United States: Sarbanes-Oxley obstruction statute requires destruction of documents or records; doesn’t apply to general conduct of “January 6” defendants
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The federal statute making it unlawful to “otherwise” obstruct an official proceeding applies only to destruction of documents, records or objects, not to the conduct of the “January 6” defendants in invading the Capitol to stop certification of the 2020 election results, the U.S. Supreme Court held June 28 in Fischer v. United States.
Title 18 U.S.C. Sec. 1512(c)(1) and (2) of the Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who “(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”.
Violation of Sec. 1512(c)(1) or (2) carries a penalty up to 20 years in prison.
Joseph Fischer was charged with numerous offenses for entering the Capitol and assaulting police officers.
The most serious charge alleged violation of Sec. 1512(c)(2).
Fischer moved to dismiss that charge on grounds that Sec. (c)(2) criminalizes only attempts to impair the availability or integrity of physical evidence.
The District Court granted the motion. It concluded the scope of Sec. (c)(2) was limited by Sec. (c)(1), and required a defendant to have taken some action with respect to a document, record or other object.
But the D.C. Circuit reversed. It ruled that the “otherwise” provision in Sec. (c)(2) covers “all forms of corrupt obstruction of an official proceeding, other than the conduct” covered by (c)(1).
Holding
The Supreme Court reversed, in a 6-3 opinion by Chief Justice Roberts.
Resolving the scope of the “otherwise” clause requires determination of how it is linked to its “surrounding words”, the Court said. That requires consideration of the “specific context” of (c)(2) “and the broader context of the statute as a whole.”
“Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it”, the Court said.
“To see why, consider a straightforward example”, the Court said. “A zoo might post a sign that reads ‘do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.’”
“If a visitor eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure, has he obeyed the regulation?”, the Court asked.
“Surely yes”, even though the smell of food or talking might “otherwise disturb” the gorilla, the Court said. “Merely eating or talking is so unlike the examples that the zoo provided that it would be implausible to assume those activities were prohibited, even if literally covered by the language.”
“The idea is simply that a general phrase can be given a more focused meaning by the terms linked to it”, the Court said.
This approach was used to limit the reach of the Armed Career Criminal Act’s “otherwise” clause, the Court said.
ACCA defined “violent felony” as burglary, arson, extortion, use of explosives or an offense that “otherwise” involved conduct that presented a “serious potential risk of physical injury to another.”
When asked to decide if drunk driving qualified as a “violent felony” under ACCA’s “otherwise” clause, the Court held it did not, even though drunk driving posed a serious risk of physical injury.
Drunk driving was “so dissimilar from the previously enumerated examples that it could not be classified as a ‘violent felony’ under the statute”, the Court said.
“The ‘otherwise’ provision of Section 1512(c)(2) is similarly limited by the preceding list of criminal violations”, the Court said. “Congress would not go to the trouble of spelling out the list in (c)(1) if a neighboring term swallowed it up”.
The history of the statute also indicates this limitation, the Court said.
The statute was enacted in response to the Enron corporate scandal, in which large numbers of documents were systematically shredded to cover up wrongdoing.
It would be “peculiar” to conclude that Congress intended a “catchall provision” in (c)(2) to reach “far beyond the document shredding and similar scenarios that prompted the legislation in the first place”, the Court said.
Giving Sec. (c)(2) a broad reach would also render a broad array of other federal obstruction statutes superfluous, the Court said.
“Although the Government’s all-encompassing interpretation may be literally permissible, it defies the most plausible understanding of why (c)(1) and (c)(2) are conjoined”, the Court concluded.
Other Opinions
Justice Jackson concurred, but wrote separately to emphasize the statute was specifically enacted to prevent document shredding like that in the Enron scandal.
“[T]here is no indication whatsoever that Congress intended to create a sweeping, all-purpose obstruction statute”, Jackson said.
In an unusual combination of Justices, Justice Barrett, joined by Justices Sotomayor and Kagan, dissented.
The Court “simply cannot believe that Congress meant what it said,” Barrett said.
“Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target”, Barrett said. “But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.”