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Supreme Court Once Again Rejects The DOJ’s Expansive Interpretation Of Criminal Law


Over the past approximate decade, the Supreme Court has issued several decisions regarding the scope of federal criminal statutes – including in the general bribery context – and the results are often unfavorable to the Department of Justice.

This prior post highlighted the decision last week in Snyder v. U.S. in which the Supreme Court rejected the DOJ’s expansive interpretation of a federal criminal statute for at least six reasons.

Last week, the Supreme Court also rejected the DOJ’s expansive interpretation of a federal criminal statute in Fischer v. U.S.

The issue before the court concerned Section 1512 of the Sarbanes Oxley Act of 2002 which provides:

“(c) Whoever corruptly

“(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; or “(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

“shall be fined . . . or imprisoned not more than 20 years, or both.”

The majority opinion by Chief Justice Robert provides the following factual background (various internal citations omitted).

“This case concerns the prosecution of petitioner Joseph Fischer for his conduct on January 6, 2021. That day, both Houses of Congress convened in a joint session to certify the votes in the 2020 Presidential election. While they did so, a crowd of supporters of then-President Donald Trump gathered outside the Capitol. As set forth in the criminal complaint against Fischer, some of the crowd eventually “forced entry” into the building, “breaking windows,” and “assaulting members of the U. S. Capitol Police.” This breach of the Capitol caused Members of Congress to evacuate the Chambers and delayed the certification process. The complaint alleges that Fischer was one of those who invaded the building.

According to the complaint, about an hour after the Houses recessed, Fischer trespassed into the Capitol and was involved in a physical confrontation with law enforcement. Fischer claimed in Facebook posts that he “pushed police back about 25 feet,” and that he “was inside the [Capitol] talking to police.” Body camera footage shows Fischer near a scrum between the crowd and police who were trying to eject trespassers from the building.

A grand jury returned a seven-count superseding indictment against Fischer. Six of those counts allege that Fischer forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol, among other crimes. Those six counts carry maximum penalties ranging from six months’ to eight years’ imprisonment.

In Count Three, the only count now before us, the Government charged Fischer with violating 18 U. S. C. §1512(c)(2). Fischer moved to dismiss that count, arguing that the provision criminalizes only attempts to impair the availability or integrity of evidence. The District Court granted his motion in relevant part. It concluded that the scope of Section 1512(c)(2) is limited by subsection (c)(1) and therefore requires the defendant to “‘have taken some action with respect to a document, record, or other object.’”

A divided panel of the D. C. Circuit reversed and remanded for further proceedings. Judge Pan, writing for the court, held that the word “otherwise” in Section 1512(c)(2) means that the provision unambiguously covers “all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by §1512(c)(1).” Judge Walker concurred in part and concurred in the judgment because he read the mens rea element of the statute—“corruptly”—as requiring a defendant to act with “an intent to procure an unlawful benefit.”

Judge Katsas dissented. In his view, the language in subsection (c)(1) narrows the language that comes after the word “otherwise” in subsection (c)(2). He 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.”

In framing the issue before the court, the opinion states:

“The Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone 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.” 18 U. S. C. §1512(c)(1). The next subsection extends that prohibition to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” §1512(c)(2). We consider whether this “otherwise” clause should be read in light of the limited reach of the specific provision that precedes it.”

The opinion states (various internal citations omitted):

“The controversy before us is about the scope of the residual “otherwise” clause in Section 1512(c)(2). On the one hand, Fischer contends that (c)(2) “applies only to acts that affect the integrity or availability of evidence.” On the other, the Government argues that (c)(2) “capture[s] all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment.”

Resolving such a dispute requires us to determine how the residual clause is linked to its “surrounding words.” In doing so, “we must ‘give effect, if possible, to every clause and word of [the] statute.’” To that end, we consider both “the specific context” in which (c)(2) appears “and the broader context of the statute as a whole.”


Rather than transforming this evidence-focused statute into a one-size-fits-all solution to obstruction of justice, we cabin our reading of subsection (c)(2) in light of the context of subsection (c)(1). Doing so affords proper respect to “the prerogatives of Congress” in carrying out the quintessentially legislative act of defining crimes and setting the penalties for them. We have long recognized that “the power of punishment is vested in the legislative, not in the judicial department,” and we have as a result “‘traditionally exercised restraint in assessing the reach of a federal criminal statute.” The Government’s reading of Section 1512 would intrude on that deliberate arrangement of constitutional authority over federal crimes, giving prosecutors broad discretion to seek a 20- year maximum sentence for acts Congress saw fit to punish only with far shorter terms of imprisonment—for example, three years for harassment under §1512(d)(1), or ten years for threatening a juror under §1503.

For all these reasons, subsection (c)(2)’s “surrounding words” suggest that we should not give this “otherwise” provision the broadest possible meaning. Although the Government’s all-encompassing interpretation may be literally permissible, it defies the most plausible understanding of why (c)(1) and (c)(2) are conjoined, and it renders an unnerving amount of statutory text mere surplusage. Given that subsection (c)(2) was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and “grossly incommensurate patch.” We therefore decline to adopt the Government’s interpretation, which is inconsistent with “the context from which the statute arose.”

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