Legal Docket: “Otherwise obstruct”

NICK EICHER, HOST: It’s The World and Everything in It for this 22nd day of April, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

AUDIO: [“We want Trump” chant]

This was the scene on January 6th 2021. Crowds of people on the grounds of the capitol in Washington in the run up to the shocking breach of the building itself.

EICHER: The big case at the U.S. Supreme Court last week stems from the events of that day.

Hundreds of people have been charged with multiple crimes. Some are already convicted, serving time, or released after having served time. Others still wait, three years later.

REICHARD: One of the most common charges involves a law passed in 2002. It came in response to a financial scandal around an energy company called Enron. The company and auditor Arthur Anderson, among others, fabricated records and shredded documents to conceal wrongdoing.

Congress responded to the scandal by passing legislation aimed at preventing another Enron. The bill was named after the two lead sponsors Senator Paul Sarbanes and Representative Michael Oxley, the Sarbanes-Oxley Act. It closed loopholes in criminal laws related to financial records.

But what does Sarbanes-Oxley have to do with January 6th?

EICHER: That’s what a man by the name of Joseph W. Fischer wants to know. He was charged with violating Sarbanes-Oxley for his actions on January 6th. It’s a big deal because a conviction carries up to 20 years in prison.

Police video shows Fischer making his way through the crowd to about 20 feet inside the building. Factual accounts differ on what happened next: the government claims he assaulted an officer; he claims he was pushed by the crowd into the officer.

Regardless, Fischer was forcibly removed after about four minutes.

A grand jury would indict him on several counts, and the government added in that charge under Sarbanes-Oxley.

REICHARD: And now Fischer asks the high court to remove that particular Sarbanes-Oxley charge.

But the federal government wants to keep using the law in this way. Here’s how the lawyer against Fischer put it. U.S. Solicitor General Elizabeth Prelogar:

ELIZABETH PRELOGAR: Many crimes occurred that day, but in plain English, the fundamental wrong committed by many of the rioters, including Petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress's work in that official proceeding.

She connects that obstruction to Sarbanes-Oxley. The law makes it a crime to interfere with an official proceeding, which was at the heart of the Enron white collar crime. I’ll quote from the language of the statute: It’s a federal crime to “corruptly alter or attempt to alter a document with the intent to impair its availability for use in an official proceeding; or otherwise obstruct.”

The government says that last bit, “otherwise obstruct,” sweeps in the actions of the January 6 defendants.

EICHER: But what does that phrase mean, “otherwise obstruct?” Especially in the context of why Congress passed Sarbanes-Oxley in the first place. Fischer’s lawyer pointed out that the early 2000’s was the dawn of the Information Age. So Congress added that phrase to cover other kinds of tampering of documents. You’ll hear lawyer Jeffrey Green mention (C)(2) — he’s referring to the section of the law in question.

JEFFREY GREEN: Until the January 6th prosecutions, the "otherwise" provision had never been used to prosecute anything other than evidence tampering, and that was for good reason. This Court has said that "otherwise," when used in a criminal statute, means to do similar conduct in a different way. The government would have you ignore all that or disregard all that and instead convert (c)(2) from a catchall provision into a dragnet.

Dragging in all sorts of conduct not anticipated by Congress, such as what his client allegedly did on January 6th.

Justice Clarence Thomas tried to confirm that fact in an exchange with the solicitor general:

JUSTICE THOMAS: General, there have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past, and has this been the government's position throughout the lifespan of this statute?

Justice Thomas perhaps hinting at selective prosecution here. Prelogar hedged a bit, saying the government has used Sarbanes-Oxley in myriad other cases, but:

PRELOGAR: Now I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring…

REICHARD: January 6th is unique, she argued, so there’s nothing with which to compare it. Still, jurisprudence requires limiting principles. Several justices spun hypotheticals to test what would qualify as “otherwise obstructing” under this particular law.

First, Justice Samuel Alito:

JUSTICE ALITO: So we've had a number of protests in the courtroom. Let's say that today, while you're arguing or Mr. Green is arguing, five people get up, one after the other, and they shout either "Keep the January 6th insurrectionists in jail" or "Free the January 6th patriots." And as a result of this, our police officers have to remove them forcibly from the courtroom and let's say we have to -- it delays the proceeding for five minutes. And I know that experienced advocates like you and Mr. Green are not going to be flustered by that, but, you know, in another case, an advocate might lose his or her train of thought and not provide the best argument. So would that be a violation of 1512(c)(2)?

PRELOGAR: I think it would be difficult for the government to prove that.

ALITO: Why?

PRELOGAR: At the outset, we don't think that 1512(c)(2) picks up minimal, de minimis, minor interferences. We think that the term "obstruct" on its face connotes a meaningful interference with a proceeding that actually blocks --

ALITO: Well, it doesn't say -- I'm sorry. (c)(2) does not refer just to “obstruct.” It says "obstructs, influences, or impedes." Impedes is something less than obstructs.

EICHER: Justice Neil Gorsuch posed several scenarios, including one that actually happened. In September, Democrat Congressman Jamaal Bowman pulled a fire alarm in a House office building that ended up delaying a vote. Bowman denied doing it at first, but security cameras caught him in the act. Republicans knew the Justice Department would never charge him for “disrupting an official proceeding,” but still, what’s good for the goose is good for the gander, they said.

Bowman would end up copping to a much lesser charge and paying a small fine. His probation is already over.

JUSTICE GORSUCH: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the state of the union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?

PRELOGAR: There are multiple elements of the statute that I think might not be satisfied by those hypotheticals…

REICHARD: Justice Elena Kagan seemed receptive to the government’s take. She noted that it’s plausible to read the statute in different ways. When Green argued the law is overbroad and vague, she countered with this:

JUSTICE KAGAN: There's a good case that this provision -- everybody knew it was going to be superfluous because it was a provision that was meant to function as a backstop. It was a later-enacted provision. Congress had all these statutes all over the place. It had just gone through Enron. What Enron convinced them of was that… there were gaps in these statutes. And they tried to fill the gaps. They tried to fill the particular gap that they found out about in Enron. And then they said, you know, this is a lesson to us. There are probably other gaps in this statute. But they didn't know exactly what those gaps were. So they said, let's have a backstop provision. And this is their backstop provision.

EICHER: Justice Brett Kavanaugh wondered why the government can’t be satisfied with other counts against Fischer and the hundreds of others? Why fight to apply this particular law?

Prelogar homed in on the unique nature of January 6th:

PRELOGAR: Because those counts don't fully reflect the culpability of Petitioner's conduct on January 6th. …But one of the distinct strands of harm, one of the -- the -- the root problems with Petitioner's conduct is that he knew about that proceeding, he had said in advance of January 6th that he was prepared to storm the Capitol, prepared to use violence, he wanted to intimidate Congress. He said they can't vote if they can't breathe. And then he went to the Capitol on January 6th with that intent in mind and took action, including assaulting a law enforcement officer. That did impede the ability of the officers to regain control of the Capitol and let Congress finish its work in that session.

REICHARD: But in a decision handed down earlier this month, the court reiterated that when a general catchall phrase is stuck onto the end of a statute, it refers only to the terms earlier in the sentence. The Chief Justice pointed that out. So to be consistent, the justices would need to limit the phrase “otherwise disrupts” to activities related to document or evidence destruction as what happened with Enron.

Green for Fischer ended this way:

GREEN: So the government is suggesting that the Court should unleash a 20-year maximum obstruction statute on civil litigation in federal courts. I submit that that is a very serious tool to put in the hands of prosecutors.

EICHER: A decision for Fischer could mean charges against other January 6th defendants will be dropped, including some charges under Sarbanes-Oxley against former President Donald Trump. The court will consider his immunity claim on Thursday, the very last argument of the term.

Analysis of that case one week from today.

REICHARD: OK, before we go, I’ll briefly touch on another case that was argued in February, Ohio v Environmental Protection Agency.

This concerns the EPA’s so-called “Good Neighbor Plan.” EPA was aiming to reduce air pollution affecting downwind states. Upwind states including Ohio, West Virginia, and Indiana sued, citing economic damage and disruption of the electric grid.

EICHER: But the agency says reducing ozone smog drifting across state lines is a public health matter that overrides all that.

So the legal question is whether the Supreme Court should put a hold on the regulations while lower courts sort whether EPA even has the authority to regulate across state lines in the first place.

REICHARD: I think lawyer for the states against EPA’s plan likely has the winning argument. Listen to lawyer Mathura Sridharan:

MATHURA SRIDHARAN: The EPA's choice of method, that is, selecting a single cost threshold and applying it uniformly across all 23 states to establish emissions limits, has consequences; namely, the math doesn't work when the inputs don't match the outputs.

In other words: garbage in-put, garbage out-put.

Deference to agency regulations is under serious scrutiny this term. I think the EPA will have to cool its heels and the high court will grant the temporary hold on the regulations.

And that’s this week’s Legal Docket!

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