A Review of the Supreme Court's Decisions in the 2023 Term

Supreme Court holds that Some Jan 6th Defendants May have been Charged Improperly: Fischer, 23-5572

A cold and dispassionate look at one of the statutes used to prosecute Fischer led the Court to determine the statute was improperly used.

The Sarbanes-Oxley Act: Normally, an Law Involving White Collar Crimes

The Sarbanes-Oxley Act of 2002 (SOX), 18 USC 1512, was originally created to deal with white collar cases. 1512(c)(1) criminalizes someone who corruptly “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.” 1512(c)(2) extends that liability to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do do. As investopedia indicates SOX was made for a specific interest in mind:

"The Sarbanes-Oxley Act of 2002 is a law the U.S. Congress passed on July 30 of that year to help protect investors from fraudulent financial reporting by corporations. 1 Also known as the SOX Act of 2002, it mandated strict reforms to existing securities regulations and imposed tough new penalties on lawbreakers."

Will Kenton, Sarbanes-Oxley Act: What It Does to Protect Investors

The Majority Opinion also explained that the genesis had to do with Enron (an energy company in the 90's) and their outside auditor destroyed potentially incriminating documents. But at that time 1512 did not impose liability on a person who destroyed records themselves.

Fischer is Charged with Violating the Sarbanes-Oxley Act as Part of His Alleged Actions on January 6th

Fisher was accused of trespassing into the Capitol building (I will assume that everyone here knows of the January 6th goings on). Among the charges, count 3 accused Fischer of violating 1512(c)(2). The prosecutors engaged in an "expansive" view of the statute in order to charge Fischer with this statute. Fischer moved to dismiss that count. The district court granted his motion indicating that the scope of 1512(c)(2) is limited by subsection (c)(1) and requires Fischer to "have taken some action with respect to a document, record or other object."

The DC Court appeals Reversed the case indicating that the the word "otherwise" in 1512(c)(2) meant that it covered “all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by 1512(c)(1).” The dissent indicated that the "language in subsection (c)(1) narrows the language that comes after the word 'otherwise' in subsection (c)(2). [The dissent] therefore construed Section 1512(c)(2) as applying 'only to acts that,'like the ones specified in (c)(1), 'affect the integrity or availability of evidence' at an official proceeding."

Roberts: Look at the Words Surrounding the Residual Clause

The Court indicated that "Resolving such a dispute requires us to determine how the residual clause is linked to its 'surrounding words.'" The result of this is that the court decided that there was a need to "consider both 'the specific context' in which (c)(2) appears 'and the broader context of the statute as a whole." The question became did congress seek to criminalize all obstructive acts or did they mean to criminalize the ones specifically not covered in (c)(2).

The court determined that they should look for guidance from other sections that came before it. The court used the canon of noscitur a sociis which means that a word is "given more precise content by the neighboring words with which it is associated." The court also considered ejusdem generis, which is the idea that “a ‘general or collective term’ at the end of a list of specific items” is typically "'controlled and defined by reference to’ the specific classes...that precede it." The court went on to indicate that when taken together this indicated that a phrase can get its meaning by other phrases around it:

"The idea is simply that a general phrase can be given a more focused meaning by the terms linked to it. That principle ensures—regardless of how complicated a sentence might appear—that none of its specific parts are made redundant by a clause literally broad enough to include them."

The court noted that the word "otherwise" in section (c)(2) was also limited to the terns in (c)(1). This meant that in this case, "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."

The court noted that the examples in (c)(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.”] were reasons to limit the language of (c)(2) to obstructive conduct that has to do with (c)(1). Otherwise the activity in (c)(2) would cover the conduct in (c)(1), leaving (c)(1) with no real work to do. Therefore, "[t]ethering subsection (c)(2) to the context of (c)(1) recognizes the distinct purpose of each provision."

The parties noted that 1512(c) was created as part of the SOX act. But the court noted that "[I]t would be peculiar to conclude that in closing the Enron gap, Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place."

The court also noted that when you look at other things in the criminal code showed that it made sense that (c)(2) was limited by the scope of (c)(1). If (c)(2) were as broad as the government wanted it to be, then other obstruction statutes would be unnecessary: See Sections 1503-05, 1507, 1509-11, 1516-18. It would also make the careful explanation of the types of obstructive conduct on 1512 (“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.” )

Jackson's Concurrence:  The Government's Arguments Don't Make Sense

Justice Jackson indicated that the true goal "in interpreting any statute should be 'to give effect to the intent of Congress.'" And even though the court uses the judicial cannons that they used here, Justice Jackson indicated that those should only be used in furtherance of achieving their goal of determining the intent of congress.

Jackson indicated that the majority's understanding of 1512's text and purpose was consistent with the statute's history. Senators indicated that its principal purpose was to target document destruction which was prohibited "only if a subpoena had been issued for the evidence that it had bene destroyed or altered." However there was no indication that congress intended to create an all purpose obstruction statute. Further, all of the broad, all-purpose instruction statutes that States have enacted are classified as misdemeanors that are punished by a year of incarceration. However the government's view of this would create a general obstruction of justice statute with a maximum sentence of 20 years for a felony, much different from the other provisions.

Finally, Justice Jackson indicated that the government's interpretation just didn't make sense:

"Here, it beggars belief that Congress would have inserted a breathtakingly broad, first-of-its-kind criminal obstruction statute (accompanied by a substantial 20-year maximum penalty) in the midst of a significantly more granular series of obstruction prohibitions without clarifying its intent to do so—not in the text of the provision itself, nor in the surrounding statutory context, nor in any statement issued during the enactment process."

Ultimately the court reversed the decision of the lower court as to the 1512(c)(2) charge meaning that it was up to the court to determine if the case against Fischer should go forward:

"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).” Ante, at 8. 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."