The Supreme Court on Friday significantly narrowed the specific charge of obstructing an official proceeding that the Biden Department of Justice had used to charge about 350 J6 defendants including former President Donald Trump.
The 6-3 decision in <a href="https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf">Fischer v. United States</a> is also seen as a major blow to special counsel Jack Smith's 2020 election case against Trump, who was also charged under the statute 18 USC §1512(c)(2).
In the past, the obstruction charge had been used almost exclusively to prosecute white-collar crimes like evidence tampering. The DOJ attempted to apply the charge to J6 defendants, arguing that the protest at the U.S. Capitol was an attempt to obstruct the certification of the 2020 election.
The court on Friday struck down the conviction of Joseph Fischer, a former police officer who attended the “Stop the Steal” rally on the Ellipse near the White House on Jan. 6, 2021 and ruled that prosecutors will now have to show that a defendant interfered with documents, records or other material parts of an official proceeding.
Chief Justice John Roberts wrote for the majority: "If Congress had wanted to authorize such penalties for any conduct that delays or influences a proceeding in any way, it would have said so.”
To prove a defendant is guilty of the "obstruction" crime, 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," Roberts wrote.
In a concurring opinion, Associate Justice Ketanji Brown Jackson emphasized that despite "the shocking circumstances involved in this case… 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."
"Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing ‘a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.’… That official proceeding plainly used certain records, documents, or objects — including, among others, those relating to the electoral votes themselves… And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding ‘in ways other than those specified in (c)(1).’
"If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand," she wrote.
Associate Justices Amy Coney Barrett, Sonia Sotomayor and Elena Kagan dissented.
The justices also sent the case back to a lower court to reassess J6 cases in light of the decision.
Law professor Jonathan Turley said it is hard to see how Smith’s indictment against Trump holds up after the Supreme Court's ruling on Friday.
"For Trump, this rips the wings of the plane that Jack Smith has been trying to take off in D.C. In an ordinary case, there would be a superseding indictment. Smith may try to go forward on the remaining counts. However, it is hard to see how the indictment holds together after this decision," Turley wrote in a post on X.
Smith has claimed the obstruction charge will still stand against Trump because alternative electoral certificates represent “documents” that were fraudulently used in an “official proceeding.” Those documents, however, were never sent to or signed by Trump.
In a statement, Attorney General Merrick Garland said he was disappointed in the ruling but insisted that those who took part in the Jan. 6 protest will still face justice.
“The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the [Justice Department] charged a January 6 defendant only with the offense at issue in Fischer,” he said.
In Fischer, the Supreme Court narrows the federal obstruction statute to require evidence that the defendant at least attempted to impair the availability, for use in an official proceeding, of "records, documents, objects," or other "things." https://t.co/lNsAMeJaYQ pic.twitter.com/I4LC0UIEJp
— Mark Joseph Stern (@mjs_DC) June 28, 2024
Comment from Nicholas Smith, the attorney who argued Fischer before DC appellate court: "We are all grateful to the Supreme Court for standing up for the depoliticized common sense that a person obstructs justice only if he impairs evidence." Nick is a hero, the smartest and…
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
The Fischer ruling from the Supreme Court today is a win for every J6 defendant, including President Trump, being wrongly prosecuted by Joe Biden’s weaponized Department of Justice! The Supreme Court got this one right. pic.twitter.com/8NeCNKz4mA
— Rep. Marjorie Taylor Greene🇺🇸 (@RepMTG) June 28, 2024
The Justice Department issued the following statement from Attorney General Merrick B. Garland on the Supreme Court’s decision in Fischer v. United States 🔗: https://t.co/VpQleUTKPa pic.twitter.com/mlABwQG71Z
— U.S. Department of Justice (@TheJusticeDept) June 28, 2024
Judge Flo Pan, just reversed by SCOTUS, wrote both appellate court opinions upholding 1512c2. She also is the dunce who raised the "Seal Team Six" hypothetical in presidential immunity oral arguments. Her opinion denying Trump's claims of immunity also will be scrutinized in…
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
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