One thing about the argument really puzzled me: why Solicitor General Elizabeth Prelogar insisted upon distinguishing January 6 from other types of obstructive protests. I understand what, legally, she thought this would accomplish — but her approach runs the risk of being a disastrous misreading of the justices, and one that may have been driven more by the demands of her client than by a sound strategy for winning the case.
‘Otherwise’
The core question before the Court in Fischer is whether 18 U.S.C. Section 1512(c)(2) makes it a crime to obstruct or impede a proceeding before Congress by preventing Congress from meeting. Here’s Section 1512(c), with italics added:
Most everyone agrees that the language of (c)(2), if you read it by itself, is broad enough to cover a mob that obstructs and impedes a proceeding by causing it to be delayed or rescheduled. The lawyers for Fischer and other January 6 defendants, however, argue that if you read the whole statute, it’s supposed to cover a list of different ways to mess with the evidence in a proceeding, rather than taking a sharp turn between (c)(1) discussing documents and records to (c)(2) saying “or anything else that gets in the way of a court or Congress doing its business.”
The Court has to decide if “otherwise” in this context means “in some other, similar way” or “in some totally other way.” It’s a close call involving a lot of attention to the tools that courts use to make sense of the language of statutes. It has consequences not only for hundreds of people charged under this law for participating in breaching of the Capitol that day, but also for Donald Trump, who has been charged under Section 1512(c)(2) on a related but different theory.
The Law Is the Law
‘Otherwise’
The core question before the Court in Fischer is whether 18 U.S.C. Section 1512(c)(2) makes it a crime to obstruct or impede a proceeding before Congress by preventing Congress from meeting. Here’s Section 1512(c), with italics added:
The statute was written in 2002 in response to the Enron scandal, which involved the company’s auditors at Arthur Anderson destroying records. It aimed largely to close perceived loopholes in federal obstruction-of-justice laws by strengthening the rules against document destruction in court cases and investigations. The “official proceeding” language in both (c)(1) and (c)(2), however, is broad enough that it explicitly covers proceedings before Congress.
Most everyone agrees that the language of (c)(2), if you read it by itself, is broad enough to cover a mob that obstructs and impedes a proceeding by causing it to be delayed or rescheduled. The lawyers for Fischer and other January 6 defendants, however, argue that if you read the whole statute, it’s supposed to cover a list of different ways to mess with the evidence in a proceeding, rather than taking a sharp turn between (c)(1) discussing documents and records to (c)(2) saying “or anything else that gets in the way of a court or Congress doing its business.”
The Court has to decide if “otherwise” in this context means “in some other, similar way” or “in some totally other way.” It’s a close call involving a lot of attention to the tools that courts use to make sense of the language of statutes. It has consequences not only for hundreds of people charged under this law for participating in breaching of the Capitol that day, but also for Donald Trump, who has been charged under Section 1512(c)(2) on a related but different theory.
The Law Is the Law
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