SCOTUS bars key felony charge in Jan. 6 prosecutions

Roger Parloff wrote on Lawfare, on June 28, the U.S. Supreme Court did what many commenters had been fearing for almost three years: It barred—or at least pared back—the department’s use of a key felony charge in the Jan. 6, 2021, Capitol Siege cases: corrupt obstruction of an official proceeding under 18 U.S.C. Section 1512(c)(2). The department has leveled that charge against at least 355 individuals, according to its data, which is about one quarter of the 1,427 total defendants who have been federally charged in connection with the insurrection.

Yet the blow will likely have less dire consequences than many cassandras—including me (for example, here, here, here, and here)—once assumed. That is so for practical as well as legal reasons. As a practical matter, no defendant was charged solely with that offense, and the most violent actors were invariably charged with multiple felonies in addition to 1512(c)(2). Further, the ruling has arrived late enough in the litigation that it will not have a noticeable impact on the vast majority of cases. Only about 52, as explained below, are likely to be significantly impacted. Finally, as a legal matter, the Supreme Court left open the possibility, as Justice Ketanji Brown Jackson stressed in her concurrence, that prosecutors might still be able to use this charge in Jan. 6 cases—including those of the 52 defendants most potentially impacted.

Moreover, as also discussed below, the ruling appears unlikely to have any effect on special counsel Jack Smith’s four-count election-interference indictment against former President Donald Trump in Washington, D.C. That indictment includes one count of corrupt obstruction of an official proceeding, and one count of conspiring to commit that offense.

The 6-3 ruling, authored by Chief Justice John Roberts, Jr., unquestionably and greatly narrows the ambit of the law. While the Justice Department had assumed that the statute broadly criminalized corrupt attempts to obstruct official proceedings, including by means of riotous conduct, the majority concluded that that the law is narrower. It defines, rather, a more conventional, obstruction-of-justice crime that focuses on corruptly falsifying or destroying evidence or other objects being used at an official proceeding. The crux of the holding, in the Chief Justice’s words, is this:

the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or ... other things used in the proceeding, or attempted to do so.

Though Roberts’ ruling was based largely on textualist arguments, one of the Court’s preeminent textualists, Justice Amy Coney Barrett, wrote the dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan. “The Court,” Barrett wrote, “does textual backflips to find some way—any way—to narrow the reach of subsection (c)(2).” She chides the majority justices who, she concludes, “simply cannot believe that Congress meant what it said.”

At first glance, the majority ruling appears to preclude use of the statute against Jan. 6 defendants, who, like defendant Joseph Fischer, a then-Pennsylvania police officer, allegedly stormed the Capitol with intent to stop the electoral vote count through multiple unlawful means. (Fischer was charged in a seven-count indictment that included two other felonies, including assaulting a federal officer and impeding a law enforcement officer during a civil disorder.)

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