SCOTUS Takes Up January 6 Obstruction Challenge — But with Unknown Scope

Today, SCOTUS granted cert to one of the initial challenges to 18 USC 1512(c)(2), that of Joseph Fischer.

Depending on what they do with the appeal, the review could have significant effect on all the January 6 cases charging obstruction — over 300 defendants so far, including Trump.

But no one knows how broadly they will be reviewing this appeal.

On its face, the only thing being appealed in Fischer is whether this statute requires document tampering.

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

If SCOTUS upheld the DC Circuit opinion (and all the underlying District opinions), nothing would change. If it overturned the DC Circuit opinion, then hundreds of cases of rioters would be thrown out.

Remember that defendants have always likened the January 6 attack with the interruption by protestors of Brett Kavanaugh’s confirmation hearing (there are significant differences, starting with the fact that all the protestors who disrupted Kavanaugh’s hearing were in the building legally). So I wouldn’t even rule out some set of Republicans rejecting this application on those grounds.

But it’s not clear that would affect the charges against Trump. That’s because Trump’s obstruction does involve document tampering: the forged elector certificates.

It’s possible, though, that SCOTUS will also review a more contentious issue: the definition of “corrupt purpose” in the statute. Fischer addresses that deeper in the petition.

While some courts have limited Section 1512(c)(2)’s scope by a particular definition of the critical mens rea element—“corruptly”—they have not defined it uniformly. See Miller, 605 F. Supp. 3d at 70 n.3. And the D.C. Circuit’s lead opinion declined to define it all, even while stating that “corrupt intent” limited Section 1512(c)(2)’s reach. Compare Pet. App. 17a-18a with Pet. App. 20a. The lead opinion nonetheless acknowledged three potential definitions:

1. Corruptly means conduct that is “wrongful, immoral, depraved, or evil.” Pet. App. at 18a (quoting Arthur Anderson LLP, 544 U.S. at 705, discussing 18 U.S.C. § 1512(b)).

2. Undertaken with a “corrupt purpose or through independently corrupt means, or both.” Pet. App. 18a-19a (quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021) (citing United States v. North, 910 F.2d 843, 942-43 (D.C. Cir. 1990) (Silberman, J., concurring and dissenting in part)).

3. Conduct that involves “voluntarily and intentionally [acting] to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Pet. App. 19a (quoting Aguilar, 515 U.S. at 616-17) (Scalia, J., concurring).

Here, SCOTUS could adopt the more restrictive definition of corrupt benefit, option 3.

In that case, it’s not clear what would happen with the crime scene defendants: at the DC Circuit, Justin Walker argued that Trump supporters might have obtained a corrupt purpose if Trump were unlawfully retained.

But for Trump, there’s no question: He was attempting to retain one of the most valuable jobs in the world through unlawful means.

All of which is to say, SCOTUS’ decision to review the case is huge — though not entirely unexpected.

But we won’t know what to make of the review for some time.

Update: I had been anxiously waiting to see what Steve Vladeck had to say about this. He notes that SCOTUS took Fischer but not Miller and Alam, which had been joined to it.

All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated.


18 replies
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  2. commonphoole says:

    Facts are a minor inconvienience to this supreme court. Where “pray to play” was not a threat even if the students thought it was and you quietly and privately pray after you called the TV station to tell them a large group would gather.

  3. WSwain says:

    Always an unexpected delay. They are praying to run out the clock coming into the election. Those with option 3 in mind must think they would benefit by “getting their guy” into the highest office. Many did get the spoils of the last administration by being loyalists.

    [Welcome back to emptywheel. FOURTH AND FINAL REQUEST: Please use the same username each time you comment so that community members get to know you. “WSwain” is your FIFTH user name; you’ve also commented as “William_S,” “William Swain,” and “WCSBill.” You acknowledged the request for compliant username when you commented last month, using “William_S.” If you do not use a compliant username with your next comment you may be banned from commenting. /~Rayne]

    • William_S says:

      I have copied the username for memory as I had thought WCSBill was the one I wanted, but got a warning last time, so switched to William_S.

      I will stick with William_S going forward.


  4. Carl Weinschenk says:

    Not a lawyer question: Does the SC granting cert on this case impact timing of the March 4 criminal case against Trump assuming that Smith makes it over the immunity hurdle?

    If yes–the trial would be put on hold–why did the SC create such a rushed schedule on the immunity issue?

    • earlofhuntingdon says:

      Trump might argue that, but whether the Court’s decision would have any impact on his case is unknowable, so it shouldn’t interfere with it now. Moreover, it doesn’t entail anything that can’t be revised, if the Court’s decision eventually requires that.

      • Carl Weinschenk says:

        Thanks. Makes me feel better. On the face of it, to a non-lawyer, it seemed silly to rush the immunity thing if the Nichols thing was going to slow things down anyway. But this confirms it, so thanks.

  5. fikshun8 says:

    (changed user name from “fikshun” to adhere to new standard)

    Do SCOTUS justices talk amongst themselves after arguments are made or do they more or less “vote” privately? Also wondering what they know of Ginny Thomas’s involvement in J6 and if there’d be any internal push for Clarence Thomas to recuse.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  6. Tech Support says:

    At first I thought this was granting cert to the SCO’s appeal recently discussed, and I was going to be like “WHOA that was quick” but silly me!

    While it’s a fool’s errand to speculate on what SCOTUS will do prior to hearing arguments (and still a bit half-baked after), my habitual optimism leads me to think this will be upheld at least 5-4 because, to my knowledge, this issue doesn’t cross the path of Chief Justice Roberts pet issues.

      • Tech Support says:

        Admittedly another presumption on my part, based on (if I’ve been reading correctly) the novel constitutional questions proposed by this motion.

        It seems like the 11th circuit puts a tremendous amount of thought and effort into constructing their opinion. If SCOTUS decided to allow their decision to stand, does that carry the same weight of precedent as if SCOTUS took up the motion and upheld it?

  7. Ginevra diBenci says:

    Are we back to Carl Nichols’ hobbyhorse about documents here? His argument depends on his own highly personal (and unshared) interpretation of syntax/grammar, which seemed for the last year or so to have been overridden by other judges. Has Nichols succeeded now in opening a door for the self-professed “textualists” on SCOTUS to pull that thread and undo DOJ’s convictions?

    EW, I’m glad you tagged him, and referenced Trump’s own documents-based charges. But DOJ hasn’t yet charged the other fake electors or the others involved in that scheme. I’m wondering if SCOTUS granting certiori here might speed that up–or render it an afterthought.

  8. Vinniegambone says:

    If you are fixing to replace certified electoral documents with fake electoral documents it you sure as hell are tampering with the certified documents. Taking actions aimed at stopping the certified documents from being delivered iis tampering. Blocking delivery is tampering.

    Recall here the communications and pleadings between congressmen, et al. to disrupt and delay the proceedings. Them there ballots is signed , sealed, and about to be delivered. If you are standing in my way you are tampering with delivery.

    If you burned the original legitimate elector ballots in the trash can, would that be tampering ? Any action taken to prevent duly processed documents from being finalized, yeah, that is tampering.

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