The Justice Department, after all, was distorting the law to increase punishments for pro-Donald Trump rioters. The Jan. 6, 2021, Capitol riot is central to Democrats’ anti-Trump political strategy, and the rioters the most loathed and unpopular group in the liberal political imagination. It seemed unlikely, to many conservatives at least, that Jackson would rebuke the administration on such a freighted and politicized subject.
Jackson surprised. In Fischer v. United States, she broke with the court’s other liberals on Friday and joined a 6-3 ruling for the Capitol riot defendant in the case. “Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis,” she wrote in a concurrence, “and even when the conduct alleged is indisputably abhorrent.”
Joseph Fischer was charged with seven crimes for his participation in the riot. The question for the justices was about just one of them — an obstruction statute passed after the 2001 Enron accounting scandal. The law, officially known as 1512(c), prescribes up to a 20-year prison sentence for anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” to impair its “availability for use in an official proceeding” or “otherwise” obstructs or influences or a proceeding.
Prosecutors have since used 1512(c) to target evidence-tampering, as Congress intended. But the Justice Department under Attorney General Merrick Garland tried stretching the law to cover the Capitol riot, on the grounds that it “otherwise” influenced a proceeding — Congress’s counting of electoral votes — in a way the law’s drafters didn’t contemplate. About 350 of 1,400 riot defendants faced charges under 1512(c).
The respectable press, of course, applied hardly any scrutiny to this expansion of the Justice Department’s power, even though prosecutors’ new interpretation of the law would allow serious felony charges to be brought against even peaceful protesters in the future. As I asked in 2022: “Did the protests in Senate buildings during the Kavanaugh Supreme Court confirmation hearings, which led to hundreds of arrests, corruptly obstruct congressional proceedings?”
Such questions might have been seen as impolite, or as diminishing the seriousness of the Jan. 6 Capitol attack. But as Jackson wrote, “this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked.” The government was claiming undefined powers to investigate and punish acts that “influence” government proceedings — even though influence is Washington’s stock and trade — and it was claiming to derive those powers from a statute concerned with document-shredding.
Chief Justice John G. Roberts Jr. wrote in his majority opinion, which Jackson joined, that the government’s reading of the law was implausible. A general phrase, such as influencing a proceeding, is “given a more focused meaning by the terms linked to it.” Because 1512(c) enumerates ways to corruptly influence a proceeding by impairing evidence, Roberts reasoned, judges must read its prohibition on “otherwise” influencing a proceeding to refer to similar conduct.
The dissent, by Justice Amy Coney Barrett, instead read the statute out of its context to cover “all sorts of actions that affect or interfere with official proceedings.” Yikes. What sorts of actions by Washington politicians, activists, lawyers and bureaucrats don’t affect official proceedings by some regulatory agency or Congress, on some time horizon?
Barrett, joined by Justices Elena Kagan and Sonia Sotomayor, claimed that the adverbial “corruptly” requirement in the statute “should screen out” innocent behavior. That is hardly a limit if any act influencing a proceeding is covered. It merely invites prosecutors to divine the motivations of their targets. People are more likely to divine “corrupt” motives among those with whom they disagree politically.
The majority ruling doesn’t mean rioters will escape punishment, of course. As Roberts noted, the other counts Fischer is charged with “carry maximum penalties ranging from six months’ to eight years’ imprisonment.” What the ruling does is draw boundaries around a statute particularly vulnerable to political abuse. Prosecutors need to charge people for crimes Congress created. They can’t bend the criminal code because they think the punishment for those crimes is insufficient.
Jackson emphasized in her concurrence that prosecutors could still bring 1512(c) charges in Capitol riot cases if they could show that rioters impaired “the availability or integrity of things used during the January 6 proceeding” — such as the documents used to certify Biden’s election victory. But it’s hard to imagine the government will try to do so for most if any riot defendants. Many probably didn’t even know such documents existed.
Conservative justices Barrett, Roberts and Brett M. Kavanaugh are suspected by conservatives of sometimes joining the court’s liberals in controversial cases in a bid to enhance the court’s bipartisan standing. The liberal minority on the court doesn’t have that same incentive — in fact, if the liberals broke ranks too often, they might worry that the public pressure on the court’s conservative majority would let up.
But Jackson’s past as a public defender — which was one reason for her nomination — might make her more sensitive to certain kinds of prosecutorial overreach. This was a clear-cut case of it, even though the group affected, in this instance, is a useful political foil for Democrats in an election year. Jackson is one of the court’s two most progressive justices, but her Fischer vote is an admirable demonstration of intellectual independence.
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