The court’s decision, released last Friday, was a mess. Prosecutors technically won United States v. Fischer by a 2-1 vote, but each judge wrote a separate opinion interpreting the law differently — a split that invites Supreme Court review. If the courts ultimately greenlight the Justice Department’s novel and sweeping interpretation of the obstruction law, they’ll be blessing a significant expansion of the federal government’s power to punish political activity it opposes.
Come on, you might say. No need for a parade of horribles. Legitimate “political activity” is easily distinguishable from the Jan. 6 violence. Here’s the problem: The statute in question has no violence requirement, nor any requirement that a defendant attempted to do anything so radical as overturn an election. It was passed after the 2001 Enron Corp. scandal to make sure prosecutors had the tools to pursue accountants who destroyed documents sought by investigators.
The law prescribes up to 20 years in prison for anyone who “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.” What’s prohibited is clear so far, right? But then comes a vague catchall provision: “ … or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” To be criminal, any of those acts must be done “corruptly.”
Jan. 6 rioters didn’t destroy or conceal evidence. But the lead D.C. Circuit opinion, by Judge Florence Y. Pan, says the law’s “otherwise” clause encompasses any other way someone might try to influence a proceeding. In her view, if the defendants impeded Congress’s counting of electoral college votes, the statute — by its literal text — can be used to convict them.
Not so fast, says the dissent by Judge Gregory G. Katsas. Context matters. This is a statute about evidence impairment, and the “otherwise” clause is meant to cover alternative ways someone could obstruct a proceeding by impairing evidence. In “ordinary English,” he observes, “what follows a residual ‘other’ or ‘otherwise’ clause is likely similar (though not identical) to the examples that precede it.” The string of examples preceding “otherwise” is about evidence impairment, and that narrows the scope of the law. If it doesn’t, why would Congress write the first half of the statute at all?
The third judge on the panel, Justin R. Walker, concurred with most of the lead opinion, but noted that he would have joined Katsas’s dissent if an alternative narrowing interpretation of the statute was not available. In his view, Jan. 6 defendants can be prosecuted under the obstruction statute only if it is narrowed by holding prosecutors to an especially exacting standard in demonstrating each defendant’s “corrupt” state of mind.
To summarize: Three appellate judges, three opinions — one largely accepting prosecutors’ view, one breaking with prosecutors on the kinds of acts the law covers and one breaking with prosecutors on the mental state required to prove guilt. That ambiguity and confusion should be expected when the government, in a time of political passion, stretches a criminal statute beyond the conduct it was designed to punish.
Why does the resolution of this case matter so much to the nation’s political future? The government’s ability to respond criminally to Jan. 6 doesn’t rise or fall on the scope of an obstruction law. Defendants in the Capitol siege face a range of other charges, such as violent entry, assaulting police and, in a small number of cases, seditious conspiracy. Some criminal laws are ambiguous, and the legal system manages anyway.
But the obstruction statute is inextricably linked to politics, making it especially important to get right. Representative government, after all, is a never-ending series of efforts to influence proceedings in the executive and legislative branches. Such efforts can take the form of protest, persuasion, legal pressure, parliamentary maneuvering, leaks, threats, or, yes, violence. The greater the political stakes, the harder people will try to influence government — and the more controversial those efforts will be.
So in applying this statute, the legal system isn’t just construing ambiguous language. It is essentially setting the boundaries of advocacy in a democracy, and the degree of punishment available for transgressions. How can citizens influence public institutions? Both Katsas’s and Walker’s opinions quote Judge Laurence H. Silberman, who died last year: “If attempting to influence a congressional committee by itself is a crime, we might as well convert all of Washington’s office buildings into prisons.”
Yet the Justice Department wants courts to bless its view that any attempt to influence a government body is indictable under the statute so long as prosecutors believe it was done “corruptly” — a legal term of art with disputed meaning, and which political opponents routinely use to label one another. If a statute doesn’t clearly specify what acts are criminalized, it invites prosecutions based on subjective interpretations of a person’s motives.
As Katsas writes, prosecutors’ “construction would sweep in advocacy, lobbying, and protest — common mechanisms by which citizens attempt to influence official proceedings. Historically, these activities did not constitute obstruction unless they directly impinged on a proceeding’s truth-seeking function through acts such as bribing a decisionmaker or falsifying evidence presented to it.”
The last thing the country needs is a new, open-ended grant of power to prosecutors to reach into the political system. That could be used to target not just protesters but interest groups and officials who fall out of favor with the president’s Justice Department.
The Supreme Court could have the final say, and liberals would surely celebrate a ruling against Jan. 6 defendants. But any celebration would be short-lived, because control over the Justice Department will keep changing partisan hands. No one benefits in the long run if politics transforms into an exercise of raw power and retribution unconstrained by law.