July 9, 2024
Fischer v. United States, 603 U.S. ___, No. 23-5572 (June 28, 2024).
Response by Professor Randall D. Eliason
Geo. Wash. L. Rev. On the Docket (Oct. Term 2023)
Slip Opinion | SCOTUSblog
Fischer v. United States: A Supposedly Textualist Court Ignores the Text
On January 6, 2021, a mob of angry Trump supporters attacked the U.S. Capitol to disrupt the joint Congressional proceeding to certify Joe Biden as the winner of the presidential election. The rioters breached barricades, assaulted law enforcement officers, broke doors and windows, and forced members of Congress to flee. It was several hours before the proceeding could resume.
In Fischer v. United States,1 the Supreme Court held that these actions did not violate a statute that makes it a crime to obstruct, influence, or impede an official proceeding. This decision can’t be squared with the language of the statute—or with common sense.
This Court purports to believe in textualism: interpreting and applying statutes based on the plain language used by Congress. But in Fischer the Court cast textualism aside to reach its desired outcome. As Justice Amy Coney Barrett noted in dissent, the majority went through “textual backflips to find some way—any way—to narrow the reach” of the statute.2
Joseph Fischer, a former police officer, was part of the mob that assaulted the Capitol. He was later indicted for several crimes, including assaulting law enforcement officers and disorderly conduct within the Capitol building. He was also charged with violating 18 U.S.C. § 1512(c)(2), which provides:
Whoever corruptly —
(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,
shall be fined under this title or imprisoned not more than 20 years, or both.3
This language is very clear. Subsection 1 prohibits obstructing a proceeding by tampering with physical evidence, and subsection 2 is a catch-all provision that prohibits “otherwise” obstructing a proceeding through means not encompassed by subsection 1. Separated by “or” and “otherwise,” the two sections provide alternative ways to violate the law.
Prosecutors charged that the Capitol riot obstructed the Congressional proceeding under subsection 2. But Fischer argued the statute must be limited. Because subsection 1 deals with impairing physical evidence, he argued, subsection 2 should be read to only cover actions that similarly impair the availability or integrity of evidence.
Writing for a 6-3 majority, Chief Justice John Roberts agreed. He said the Court’s task was to determine the meaning of the “otherwise” clause. He first turned to two canons of statutory interpretation, noscitur a sociis and ejusdem generis, which essentially say that unclear terms in a statute should be interpreted in light of the words around them.4 Both of those canons, Roberts said, suggest that the “otherwise” clause must be interpreted consistent with the more specific examples of obstruction listed in subsection 1.5
Next the Chief Justice turned to legislative history. He noted that section 1512(c) was passed as part of the Sarbanes-Oxley Act, which was motivated primarily by the Enron scandal and document shredding by Arthur Andersen.6 Because Congress was primarily focused on evidence destruction, he argued, it was unlikely that it intended to enact a broader, catch-all prohibition of obstruction of justice.
Roberts also argued that the Court’s interpretation made sense because it reduced the amount of overlap and surplusage in the obstruction of justice statutes. He noted that if (c)(2) was a general obstruction prohibition as the government claimed, it would render unnecessary a number of the more specific prohibitions in other obstruction statutes, some of which provide for less severe penalties.7 The Court’s limitation on (c)(2), he argued, gives it a more reasonable and logical role to play in the context of the broader criminal code.
Finally, Roberts raised concerns about the implications of the government’s interpretation. He noted that peaceful protestors and legitimate lobbyists might be subject to “decades in prison” if a future prosecutor decided that their efforts to influence a proceeding were sufficiently corrupt.8
Roberts concluded that although the government’s interpretation of the statute was “literally permissible,” the Court’s own limited reading was more plausible.9 Accordingly, he concluded, to prove a violation of 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 . . . other things used in the proceeding, or attempted to do so.”10
In an interesting line-up, Justice Barrett dissented joined by Justices Kagan and Sotomayor. She accused the majority of ignoring the text of the statute because “it simply cannot believe that Congress meant what it said.”11 But the plain language, she said, is clear: “otherwise” means “in a different manner” or “by different means.”12 Subsection 1 of the statute prohibits obstruction by evidence impairment, and subsection 2 prohibits acts that corruptly obstruct a proceeding by other means—including shutting it down entirely.
Justice Barrett argued that the statute’s structure, with two distinct prohibitions in separate sections rather than a single list of terms, meant the canons of interpretation relied upon by the majority do not properly apply. “To my knowledge,” she said, “we have never applied either of these canons to a statute resembling 1512(c).”13 She noted that considerable surplusage and redundancy in the obstruction statutes still exists even under the majority’s interpretation. She also argued that the Court’s fears about future prosecutions were overstated and that other requirements, such as proof of corrupt intent, limited the statute’s reach.
In the end, Justice Barrett concluded, there is no getting around the plain language of 1512(c)(2)—it is broad, but not vague, and readily encompasses the conduct of the January 6 rioters.
The Supreme Court has repeatedly held that when it interprets an act of Congress, the text controls: the Court assumes that Congress meant what it said and said what it meant.
[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.14
Judges rely on interpretive aids such as canons of construction and legislative history when statutory language is ambiguous. But in Fischer the Court began with those tools, and ended up using them to suggest ambiguity where none really exists.
The majority supported its narrowing of the statute by saying that if Congress intended to create a catch-all obstruction provision, it would have said so. This argument has a true Alice-in-Wonderland quality. Congress did say so, in 1512(c)’s “otherwise” clause. But the Court, as Justice Barrett argued, refused to enforce what Congress wrote.
The flip side of this argument is more compelling: if Congress intended the statute to be limited to evidence impairment, it would have said so. It easily could have written subsection 2 to say: “or otherwise impairs the integrity or availability of evidence for use in a proceeding.” But the statute doesn’t say that. Rather than artificially limiting the statute based on what Congress could have written, the Court’s role is to interpret it based on what Congress actually wrote.
The Court also wrongly suggested it would be illogical for a Congress concerned with the document shredding in the Enron case to respond with a broader prohibition on obstruction. Congress may have been motivated by document shredding during the Enron scandal, but it sensibly passed a statute that would cover other forms of obstruction as well.
Again, the idea that Congress would create a broad catch-all is much more logical than believing Congress would have secretly intended the result in Fischer. Why would Congress pass a law that prohibits only certain types of obstruction while sanctioning others? Why would Congress have chosen to exempt from the law a violent mob that shuts down one of its own proceedings?
Under Fischer, someone who quietly files a false affidavit in a proceeding is still subject to the statute, even if the affidavit has no effect, while someone who stages a violent riot and shuts a proceeding down entirely cannot be charged. No rational Congress would intend such an absurd result.
The majority also claimed its interpretation makes sense because it reduces internal redundancies and overlap within the federal obstruction of justice statutes. This argument would have more force if the obstruction of justice statutes were not already such a mess.15 There has always been substantial overlap, redundancies, and internal inconsistencies in this area of the criminal code, and most of them remain after Fischer. That’s an argument for legislative reform, but not for ignoring the plain language of one of the code’s provisions.
Finally, there’s no evidence that prosecutors would use this statute to pursue lobbyists or peaceful protestors. This law has been on the books for more than twenty years, and prosecutors haven’t brought those cases. The events of January 6 were unprecedented. It’s not surprising they resulted in unprecedented criminal charges. But that doesn’t mean prosecutors would now abandon the discretion and judgment they’ve always used when enforcing these statutes in more routine cases in the future.
A violent mob that shuts down a proceeding has obstructed and impeded that proceeding under any ordinary understanding of those terms. As Justice Barrett wrote, the case against Fischer should have been “open and shut.”16
Professor Eliason spent 12 years as an assistant United States attorney for the District of Columbia, working in various areas including misdemeanors, grand jury, narcotics, general felonies, and the Violent Crime Unit. For more than eight years, he specialized in white collar crime as a member of the Public Corruption/Government Fraud section. From 1999 to 2001, Mr. Eliason served as chief of that section, supervising a staff of eleven AUSA’s prosecuting white collar cases in federal court. Mr. Eliason currently teaches a course on white collar crime. He is a three-time recipient of the Distinguished Adjunct Faculty Teaching Award, voted on by the graduating class.
Recommended Citation
Randall Eliason, Fischer v. United States, Geo. Wash. L. Rev. On the Docket (July 9, 2024), https://www.gwlr.org/fischer-v-united-states-a-supposedly-textualist-court-ignores-the-text.
