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June 28, 2024

Supreme Court, by 6-3 vote, limits reach of federal statute criminalizing obstructing official proceeeding in Jan 6 prosecution

With a notable configuration of Justices, the Supreme Court by a 6-3 vote further continued its recent tendency to give a federal criminal statute a limited reading through its decision today in Fischer v. US, No. 23-55 (S. Ct. June 28, 2024) (available here). Chief Justice Roberts authored the opinion for Court, which starts and ends this way:

The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who corruptly “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.” 18 U.S.C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2). We consider whether this “otherwise” clause should be read in light of the limited reach of the specific provision that precedes it....

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.  See supra, at 9.  The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

Justice Jackson authored a concurring opinion which has this paragraph to conclude its opening:

Notwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here. I join in the Court’s opinion because I agree with the majority that §1512(c)(2) does not reach “‘all forms of obstructive conduct’” and is, instead, “limited by the preceding list of criminal violations” in §1512(c)(1). Ante, at 7–8. I write separately to explain why and how that interpretation of §1512(c) follows from the legislative purpose that this statute’s text embodies.

Justice Barrett authored a lengthy dissent, which was joined by Justices Sotomayor and Kagan. Here is how it starts:

Joseph Fischer allegedly joined a mob of rioters that breached the Capitol on January 6, 2021.  At the time, Congress was meeting in a joint session to certify the Electoral College results. The riot forced Congress to suspend the proceeding, delaying it for several hours.

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results.  Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. So why does the Court hold otherwise?

Because it simply cannot believe that Congress meant what it said.  Section 1512(c)(2) is a very broad provision, and admittedly, events like January 6th were not its target. (Who could blame Congress for that failure of imagination?) But statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.  The Court, abandoning that approach, does textual backflips to find some way — any way — to narrow the reach of subsection (c)(2).  I respectfully dissent.

June 28, 2024 at 11:03 AM | Permalink

Comments

It’s not the subject of this blog, but the Chevron decision is even bigger news than our Roomba POTUS.

Where are all those lefties today?

Posted by: TarlsQtr | Jun 28, 2024 11:20:49 AM

There are some issues lurking here--first, this whole idea of "joining a mob"--what does that even mean in terms of criminal culpability? Second, you have obvious prosecutorial overreeach.

Posted by: federalist | Jun 28, 2024 11:52:19 AM

Federalist: If it was so obvious, it wouldn't divide the Court 6-3 and Justice Barrett wouldn't be in dissent. You think it's obvious because the prosecution hurts people you politically identify with. Had Democrats reacted this way to a Trump re-election in 2020, you'd be cheering the decision to indict them.

(Just my educated guess having read the nonsense you routinely post here.)

Posted by: Da Man | Jun 28, 2024 12:05:28 PM

Actually not. I, unlike, Democrats do not believe in weaponizing the criminal justice system. Yes, people like Peter Strzok need to go away for a long time, but let's get real about what's going on with these prosecutions, like, for example, the prosecution of the conservative newsgatherer while NY Times reporters didn't get prosecuted for doing the same thing.

The prosecutorial overreach may or may not be legitimate to consider--I am just pointing it out, and those things can influence how cases are decided.

"(Just my educated guess having read the nonsense you routinely post here.)" Projecting much?

Posted by: federalist | Jun 28, 2024 12:14:19 PM

The other issue is what effect Fischer has on the Trump DC indictment.

Posted by: federalist | Jun 28, 2024 1:28:45 PM

MasterTarls: The overruling of Chevron could have a significant impact on the work of the US Sentencing Commission, the Department of Justice, the Bureau of Prisons and all sorts of other federal agencies that can have a significant impact on sentencing and punishment. In addition, the on-going efforts to reschedule marijuana could be impacted in various ways (as might the scheduling of other drugs like psychedelics) -- eg, courts may not defer to various agencies' scheduling decisions. It is going to be quite interesting to see whether (and how many) criminal defendants and prisoners might find new arguments in the demise of CHevron.

Posted by: Doug B | Jun 28, 2024 1:42:01 PM

TarlsQtr --

"Where are all those lefties today?"

Drowning their sorrows from last night, which were worse by far than the ones they got today.

https://ringsideatthereckoning.substack.com/p/the-titanic-sailed-at-900-last-night?utm_campaign=reaction&utm_medium=email&utm_source=substack&utm_content=post

Posted by: Bill Otis | Jun 28, 2024 1:48:04 PM

Tarls, it's true that lefties are drowning from last night's dismal performance by Biden. But everyone will be drowning if and when lying, ignorant, blowhard, felon, sexual assaulter, scammer Trump takes over.

Posted by: Amy | Jun 28, 2024 2:02:22 PM

Tarls, in overturning Chevron, the Court has opened Pandora's box. A multitude of lawsuits will shortly be filed challenging hundreds of regulations that provide environmental protection, protection against dangerous products, safety regulations in workplaces, etc.

Posted by: David | Jun 28, 2024 2:05:17 PM

David,

From your lips to God’s ears.

Posted by: TarlsQtr | Jun 28, 2024 2:47:10 PM

Doug --

I wonder if you might expand upon your view that the Court's decision will affect the USSC. In what ways?

Posted by: Bill Otis | Jun 28, 2024 4:15:01 PM

I have to say I am impressed with Justice Jackson here, and so too should be anyone who loves America.

Not like that will save her neck from a noose in 2025 when the January 6 patriots, freshly pardoned, give an encore performance at the Supreme Court, creating some vacancies for President Trump to fill.

It wont be anything personal. We just need to ensure that the court continues to reach correct decisions. It will take a lot of them to Make America Great Again.

November, here we come! MAGA

Posted by: MAGA 2024 | Jun 28, 2024 4:55:40 PM

The indictment in Trump's case probably needs to be rewritten. But there appears to be some evidence which would support a charge under the majority's opinion. If the charge is limited to false documents, then the "certificates" submitted by Republican "electors" in states that Trump lost would appear to fit the bill. And there is evidence of the Trump campaign's involvement in the creation of those certificates. Whether there is enough evidence connecting Trump to that decision would require knowing all of the evidence in the case (which none of us do) but some of Trump's statements related to counting of the electoral votes on and before January 6 would tend to show that, at the very least, he was an accessory after the fact to their submission to Congress.

But talking about how to redraft those charges is premature as Monday's ruling will probably require amended charges anyhow (although the submission of the certificates is almost certainly not an official act however the Supreme Court might define the term).

Posted by: tmm | Jun 28, 2024 6:29:57 PM

MAGA 2024, you write, "Not like that will save her neck from a noose in 2025 when the January 6 patriots, freshly pardoned, give an encore performance at the Supreme Court."

Your post may well result in a Grand Jury indictment for threatening a Supreme Court Justice. Seek out a very good defense lawyer.

Posted by: federal prosecutor | Jun 28, 2024 6:40:03 PM

MAGA 2024, your threat to Justice Jackson may put you in the cell next to your cult leader, Mr. T. While Biden's debate performance was dismal, Trump's consisted of one lie after another repeated again and again; a true follower of the dictum of the Nazi propogandist Joseph Goebels: "Repeat a lie often enough and it becomes the truth”

Posted by: James the Just | Jun 29, 2024 12:47:03 AM

James,

Yup,

Trump lied, but no more than Biden did.

Posted by: TarlsQtr | Jun 29, 2024 12:59:57 AM

federal prosecutor,

As much as I dislike MAGA, if you seek any revenge upon him, you are the tyrant.

You serve us.

Posted by: TarlsQtr | Jun 29, 2024 1:02:12 AM

Billy boy Otis, thanks for the shameless self promotion link to your musings about the political debate. Do you bark at clouds too? Oh no, otherwise we’d have got the link from you.

Posted by: Blah | Jun 29, 2024 2:41:56 AM

Bill, ever since the Supreme Court's 2019 ruling in Kisor v. Wilkie, lower federal courts have divided over whether the 1993 Stinson ruling is still good law as to whether and how sentencing courts must show deference to the the guidelines' commentary. I flagged some of these issues in this prior post a couple of years ago: https://sentencing.typepad.com/sentencing_law_and_policy/2022/07/kisor-role-how-often-is-deference-to-the-federal-sentencing-guidelines-commentary-litigated.html

Based in part on Kisor, the New Civil Liberties Alliance has sought or supported cert petitions challenging "the widespread practice of extending judicial “deference” to the United States Sentencing Commission’s Commentary." And the NCLA has contended in a submission to the Commission that "Increasing Criminal Sentences Based on Deference Is Unconstitutional.":

https://nclalegal.org/comment/comments-in-response-to-the-united-states-sentencing-commission-proposed-2022-2023-priorities-for-amendment-cycle/

ttps://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20221017/ncla.pdf.

I think the arguments about the unconstitutionality of reliance on deference to guidelnie commentary as the basis to increase a criminal sentence is likely stronger (perhaps much stronger) after Loper Bright. But I still need to read this new SCOTUS ruling in full before I start opining on its potential impact in federal sentencing.

Posted by: Doug B | Jun 29, 2024 8:46:36 AM

"But there appears to be some evidence which would support a charge under the majority's opinion. If the charge is limited to false documents, then the "certificates" submitted by Republican "electors" in states that Trump lost would appear to fit the bill."

Yeah, except that arguing that your slate was the right slate and that Congress should certify your slate cannot be a crime, no matter what the statute says.

Posted by: federalist | Jun 29, 2024 10:57:12 AM

And also, tmm, let's not forget the collusion of the Biden campaign (here's looking at you Tony Blinken) with the CIA to unfairly suppress the Hunter laptop story. Whatever one thinks of Trump, those actions, chargeable to Biden, made the 2020 election unfair. Certainly, Congress would have been well within its powers to certify Trump as the winner.

Posted by: federalist | Jun 29, 2024 10:59:59 AM

Doug --

OK, thanks. Whether it's termed "deferring to" or merely "considering," I think sentencing courts will be in pretty much the same position now that they've occupied essentially since Booker, i.e., they'll say they have "carefully consulted" the guidelines and commentary and they do what they want. They will probably get away with it microscopically more than they have up to now, but the actual difference, if any, will be skimpy at best and largely invisible. My prediction is that sentencing over the next few years will be virtually identical to what it's been over the last few, to wit, slightly more than half the sentences below guidelines and slightly less than half within (most of those at the bottom of the range), with a tiny sliver (roughly 1%) upward departures (or variances, if you like).

Posted by: Bill Otis | Jun 29, 2024 11:04:03 AM

MAGA (Posted by: MAGA 2024 | Jun 28, 2024 4:55:40 PM) --

Nonsense. The only attempt within memory on the life of a Supreme Court Justice was Nicholas Roske's unsuccessful attempt to murder Justice Kavanaugh at his home in the middle of the night. Roske was a Democratic enthusiast and a pro-abortion extremist.

If you've ever expressed any problem with Roske's behavior, I haven't seen it. Instead you walk past it and make up a fantasy about right-wingers murdering Justice Jackson.

That's not humor anymore. It's just a smear. You can do better.

Posted by: Bill Otis | Jun 29, 2024 12:59:58 PM

to federal prosecutor:

"MAGA 2024, you write, "_________________________________________________""

Your post may well result in a Grand Jury indictment for threatening a Supreme Court Justice. Seek out a very good defense lawyer."

You should seek one out as well--you repeat the alleged threat. Assuming that you are a federal prosecutor, you're an incompetent hack, i.e., perfectly suited for today's DOJ. MAGA 2024's language does not constitute a threat. He's basically saying that the j6 defendants will be ingrates and may continue their violent ways.

Posted by: federalist | Jun 29, 2024 1:56:08 PM

federalist --

The chances he's actually a federal prosecutor are between zip and zero.

Posted by: Bill Otis | Jun 29, 2024 3:04:14 PM

Bill: you show your lack of understanding of the modern particulars of federal sentencing. For certain guidelines --- and especially 2B1.1 --- the commentary can often operates to drive up guideline calculations considerably. Only a few circuits relied on Kisor to say the guidelines could not be calculated based on commentary, but if they all adopt that position after Loper Bright, the guideline ranges could be reduced around to 20% in perhaps 20% of all cases (these are very, very rough guesses). If actual average sentences continue to move in near lockstep with the guideline calculations (as regularly shown by USSC data), any tangible decline in guideline calcuation will produce a tangible decline in actual sentences. The average total change in average sentence might amount to only, say, six months off average five-year terms, but that would still be a remarkable echo of a Supreme Court case agency rules.

Posted by: Doug B | Jun 29, 2024 3:11:42 PM

Doug --

And "if" I looked like Brad Pitt, I'd be dating Emma Watson.

Speculation is cool, but still just speculation.

Judges have been on the loose since Booker. I don't see them feeling or needing to feel more at liberty than they do now, particularly since, unlike the majority of the agencies that got the back of the hand this last week, the USSC, for all its relative toothlessness, is at least still a component of the judicial branch.

Posted by: Bill Otis | Jun 29, 2024 3:32:15 PM

Billy boy Otis doesn’t “see” them “feeling” so that settles the issue. That’s not “speculation” Billy boy; that’s delusion. Seek help.

Posted by: Blah | Jun 29, 2024 3:53:15 PM

Bill, again, you are showing your lack of understanding about the modern federal sentencing process. This is not at all about judges "feeling or needing to feel more at liberty" at sentencing, this is about how the guidelines ranges get calculated and the data showing that averages sentences still closely track the calculated guideline ranges. It is not a given that Loper Bright will dramatically impact guideline calculations in many cases, but it certainly could possibly have a bigger impact than many recent guideline amendments and even than the sentencing reforms of the First Step Act. Of course, the USSC could adjust accordingly, as they recently did by moving "intended loss" out of the guideline commentary of 2B1.1.

And, as I explained to Master Tarls, a lot may turn on whether (and how many) criminal defendants and prisoners (and their lawyers) develop new arguments based in the demise of Chevron. I sensed that not that many defendants or lawyers took full advantage of Kisor developments, and so the demise of Chevron may turn out to be an opportunity missed. But given that lots of federal agencies rules play a central role in operationalizing the federal crminal justice system, there could be lots of potential interesting litigation ahead. (And yet this surely will not get nearly the attention of coming/continuing Bruen/Rahimi litigation that impacts maybe 10% of the federal criminal docket. Loper Bright could potentially impact 50% or more sentencings, as well as the entire federal prison population. Then again, Bruen/Rahimi could blow up a lot of state gun crimes as well.)

Posted by: Doug B | Jun 29, 2024 4:08:19 PM

Of course Billy boy Otis lacks understanding. He’s a troll. Nothing more. Never has been.

Posted by: Blah | Jun 29, 2024 4:23:16 PM

Blah: these are complicated issues, so I am not surprised Bill is going on his vibes. And his vibes are often quite astute, and they might prove right here, too.

Posted by: Doug B | Jun 29, 2024 5:12:01 PM

Although we may despise him, we will defend MAGA to the death if he is indicted by this pseudo prosecutor.

Posted by: onlooker | Jun 29, 2024 5:21:03 PM

Doug --

Being called a troll by "Blah" is enough to give irony a bad name.

Posted by: Bill Otis | Jun 29, 2024 5:28:44 PM

I am not sure that the overruling of Chevron will have an impact on the USSC. As I understand the ruling, and administrative law is not my forte, we are talking about whether the agency's interpretation is some sort of tie-breaker in interpreting ambiguous statutes (which is why Chevron survived as long as it did as the Supreme Court was able to evade the issue by finding that a particular state was not sufficiently ambiguous to need that tie-breaker). I have not read the opinions deeply enough to know what the court is saying the new tie-breaker is (do we presume that the statute permits/requires the regulation or that it does not permit/require the regulation or is it based on the purpose of the statute relevant to the regulation?) But my memory is that the statutes related to USSC give the USSC plenary authority to adopt guidelines with very little restrictions on what they do as long as the guidelines are within the authorized range of punishment.

On the other hand, this ruling will probably have some impact on regulations that might trigger criminal penalties and some of the regulations related to prisons adopted by DOJ and BOP. But I have a hunch, that when it comes to the operation of prisons, the Supreme Court is going to broadly interpret the statutes to give BOP discretion on those regulations.

Posted by: tmm | Jun 29, 2024 5:58:26 PM

tmm --

A thoughtful and serious analysis, as usual.

Posted by: Bill Otis | Jun 29, 2024 6:00:55 PM

tmm: the main issue I mean to flag is not the USSC's Guidelines, which get reviewed (and perhaps tacitly approved) by Congress. The issue already deeply dividing lower courts is the separate commentary to the Guidelines that can drive the application of the Guidelines in many cases (especially fraud cases).

Technically, as I (poorly) understand this complicated area of admin law, this issue is not about Chevron deference but involves another (related?) sort of deference doctrine (Auer/Kisor) concerning how an agency interprets its own rules. The 2019 Kisor ruling, which cut back on Auer deference, prompted a number of circuits to break from the norm of complete deference to USSC commentary according to the SCOTUS 1993 ruling in Stinson v. US. As a Federalist Society piece explains: "The Fourth, Sixth, Ninth, and Eleventh Circuits all agree with the Third Circuit’s position that the Supreme Court in Kisor replaced Stinson’s highly deferential standard to guideline commentary." https://fedsoc.org/commentary/fedsoc-blog/how-much-should-courts-defer-to-u-s-sentencing-guidelines-commentary

Since, according to commentary I have seen, "Auer and Chevron deference share many similarities," the death of Chevron might further strengthen the Kisor-based argument against deference to guideline commentary. (Notably, Justice Kagan in dissent mentions Kisor and Auer deference, but the majority in Loper Bright does not.) I believe these variations on agency deference are distinct, but just the uncertainty provide another argument for savvy defendants looking to prevent certain Guideline enhancements that are commentary-driven.

Posted by: Doug B | Jun 29, 2024 9:23:07 PM

Today's decision in Corner Post adds another wrinkle to Doug B's question about the commentaries to the guidelines. If the statute of limitations for challenging a regulation does not start until a party is injured, a criminal defendant will always be able to challenge the validity of the commentaries.

You also could have a lot more white collar defendants raising the defense that the regulation upon which their charge is based is invalid.

Posted by: tmm | Jul 1, 2024 11:08:34 AM

TMM - I don't see that as a consequence of Corner Post. No defendant is "injured" by a Guideline (or its commentary) until he or she has been (1) prosecuted, (2) convicted, and (3) sentenced on the basis of that Guideline. What do you expect the defendant to do: run to federal court and seek a declaratory judgment that the Guideline is invalid before deciding whether to commit the crime?

Posted by: Da Man | Jul 1, 2024 5:52:20 PM

Da Man. Arguably an attorney could raise the challenge on behalf of current and prospective clients, not sure if he would have standing. But, as the FDA case this term reminds us, it's possible that nobody has standing to challenge a statute or regulation.

Prior to Corner Post, the time for challenging a regulation started when the regulation was adopted (or, at the very least, when there was some injured party). Now, each defendant has her own personal statute of limitations which starts when she is found guilty. Whether that changes how federal sentencing works is unclear (as I am not sure that federal courts have ever taken that position on the commentaries). But it certainly impacts potential charges for regulatory crimes.

Posted by: tmm | Jul 2, 2024 5:41:54 PM

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