The Supreme Court on Friday tossed some charges against Capitol rioter Joseph Fischer, “significantly weakening” the statute used to convict hundreds of rioters, according to Slate’s Mark Joseph Stern. The 6-3 decision on non-ideological lines gives a boost to January 6 rioters and rests on the incredibly nitpicky interpretation of the order of words in criminal statutes.
The statute at the heart of the case, the Sarbanes-Oxley Act, includes two subsections that federal prosecutors have used in charging Capitol rioters:
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…or imprisoned not more than 20 years, or both.
The first portion of that law prohibits destroying or altering official documents or objects, while the second part is what federal prosecutors have used to charge Capitol rioters. The Supreme Court, led by Chief Justice John Roberts, tossed out the charge against Fischer on the basis that Fischer did not tamper with any physical evidence—wholly ignoring the second part of the statute.
In his opinion, Roberts provides an example to make his case likening Congress to zoo animals and Capitol rioters to visitors at the zoo: “A zoo might post a sign that reads, ‘do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.’ If a visitor eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure, has he obeyed the regulation? Surely yes.”
Liberal junior Justice Ketanji Brown Jackson joined conservative justices Roberts, Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh in the 6-3 majority opinion—while conservative justice Amy Coney Barrett joined liberal justices Sonia Sotomayor and Elena Kagan in dissent.
Barrett’s dissent makes clear her view that the majority opinion is finding a question for a predetermined answer, claiming, “The Court…does textual backflips to find some way—any way—to narrow the reach of subsection.”
“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,” Barrett writes. “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.”
Fischer’s case now returns to lower court for further consideration under the new interpretation of the statute—meaning hundreds of other January 6 rioters’ cases could be similarly relitigated.
