In a pointed dissent, Justice Amy Coney Barrett skewered her fellow justices over their decision to narrow an obstruction charge used to prosecute scores of rioters who stormed the Capitol on Jan. 6, 2021.
The Supreme Court voted 6-3 Friday to side with Joseph Fischer, a former police officer accused of partaking in the Capitol attack who challenged the provision as being improperly applied to rioters.
Barrett, an appointee of former President Trump who himself faces a criminal charge that could be impacted by the court's opinion, noted that the high court does not dispute that the certification of the 2020 presidential election results that day qualifies as an “official proceeding,” nor that rioters — including Fischer himself, allegedly — delayed the proceeding.
“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?” the conservative justice wrote in a dissent joined by liberals Sonia Sotomayor and Elena Kagan. “Because it simply cannot believe that Congress meant what it said.”
The law, Section 1512(c)(2), makes it a crime to “corruptly” obstruct, impede or interfere with official inquiries and investigations by Congress. It carries a maximum 20 years in prison and has been used to prosecute more than 350 rioters accused of interrupting Congress’s 2020 certification of the vote.
But Fischer claimed the Justice Department retooled the charge to sweepingly prosecute those who participated in the riot, when the law — established in the wake of the Enron accounting scandal — actually intended to criminalize document shredding.
Barrett acknowledged that the Congress that enacted the law likely did not have the riot in mind when creating it. She quipped: “Who could blame Congress for that failure of imagination?”
However, she contended that statutes “often go further than the problem that inspired them,” accusing the majority of “abandoning” the rules of statutory interpretation and completing “textual backflips” to find “some way — any way —” to narrow the provision’s reach.
“Joseph Fischer allegedly participated in a riot at the Capitol that forced the delay of Congress’s joint session on January 6th,” Barrett wrote. “Blocking an official proceeding from moving forward surely qualifies as obstructing or impeding the proceeding by means other than document destruction. Fischer’s alleged conduct thus falls within (c)(2)’s scope.”
Chief Justice John Roberts wrote for the majority that it would be “peculiar” to find that, in Congress’s efforts to close Enron gap, it “hid away…a catchall provision” reaching past the document shredding that prompted the legislation.
“The better conclusion is that subsection (c)(2) was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability beyond those Congress specified in (c)(1),” Roberts wrote.
Justice Ketanji Brown Jackson, a liberal, joined the conservative majority. In a separate opinion, she signaled her belief that it is possible for Fischer and other defendants to still be prosecuted under the charge.
"That issue remains available for the lower courts to determine on remand," Jackson wrote.
The Supreme Court’s decision could have profound implications on the Justice Department’s years long prosecution of the Capitol attack.
Among those charged under the provision were several members of the extremist Proud Boys and Oath Keepers groups, including leaders Enrique Tarrio and Stewart Rhodes.
Two of Trump’s charges in his federal election subversion case — which has been on an indefinite pause as the Supreme Court weighs his presidential immunity challenge — also stem from the provision. He has pleaded not guilty.
