The Supreme Court ruled Friday that the government cannot prosecute January 6 defendants under 1512(c)(2), the “Enron” statute, for generally obstructing “an official proceeding” unless they interfered with objects or documents.
The bombshell decision could result in hundreds of convictions against non-violent January 6 defendants being overturned — and could result in at least some charges being dropped against President Donald Trump as well.
1512(c)(2) was passed after the Enron scandal, when it was discovered that federal law had a loophole: it was illegal to instruct others to destroy evidence, but not illegal to destroy evidence oneself. Consequently, Congress passed a law prohibiting tampering with witnesses or evidence that is to be used in an “official proceeding.” The Department of Justice used that law to prosecute participants in the Capitol riot based on the idea that they had “obstructed” an official proceeding — i.e. the certification of the Electoral College vote in the 2020 presidential election. But critics said that 1512(c)(2) had never been intended to apply to protests or other First Amendment-connected activities.
In a 6-3 decision, with the majority opinion written by Chief Justice John Roberts, the Court overruled the (heavily anti-Trump) D.C. Circuit and said that 1512(c)(2) could not be used as broadly as the Department of Justice had done.
“To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so,” Roberts wrote. The term “otherwise” — as in “otherwise obstructs, influences, or impedes any official proceeding” — could not be used so broadly as to include trespassing.
In order to continue a prosecution under the Enron law, the prosecution would have to show that the defendants not only invaded the Capitol, but that they also impeded the delivery of documents or objects needed for the proceeding.
The Court remanded the case back to the U.S. District Court in D.C., where the petitioner, Joseph Fischer, faces trial for his involvement in the Capitol riot (including for allegedly physical violence against law enforcement). The Court instructed the district court to consider the 1512(c)(2) court of the case against Fischer more narrowly than before.
Surprisingly, Justice Ketanji Brown Jackson concurred with the majority, while Justice Amy Coney Barrett wrote the dissent. Barrett wrote: “Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. … But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.” She said that Fischer had been properly prosecuted under the law.
Trump faces four counts in Special Counsel Jack Smith’s case against him in D.C. relating to the January 6 Capitol riot. One of those is under 1512(c)(2), and could possibly be thrown out on the basis of the Court’s decision.
The case is Fischer v. United States, No. 23-5572, in the Supreme Court of the United States.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, “The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency,” now available on Audible. He is also the author of the e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.