Joseph Fischer, a political follower of Donald Trump, made two choices on January 6, 2021. He had a constitutional right to make the first one. The second one, however, may put him in prison. On Tuesday, the Supreme Court takes up his case.
This hearing will be historic for two reasons. First, the Court will be hearing the first criminal case arising out of the riot at the U.S. Capitol, the violent attempt in 2021 to keep Trump in office. Second, the charge that Fischer faces has been made against former President Trump, too, based upon the same federal law.
Tuesday hearing: Fischer v. United States The hearing begins at 10 a.m. and is scheduled for one hour.
The facts of this case: Joseph Wayne Fischer, a former North Cornwall Township police officer in the village of Jonestown, PA (population 1,634), was inspired by then-President Trump’s call for his supporters to come to an election protest rally in Washington, D.C., on January 6 three years ago. Fischer went to the event near the White House – he had a right to do so, under the Constitution’s First Amendment guarantee of “the right of the people peaceably to assemble.”
He then drove home. He soon learned that the rally crowd had moved to the Capitol, and was growing. He then made his second choice of that day: he drove back to Washington, and entered the Capitol that afternoon, after the mob had forced its way inside, causing Congress to interrupt the presidential election vote-counting process.
That would be the beginning of Fischer’s legal woe. He has yet to be tried on several criminal charges, because the Justices have agreed to hear his challenge to one of those counts. He will not be tried until that is settled.
What happened at the Capitol that day led the FBI to pursue a sweeping, high-tech investigation worthy of science fiction. Examining hundreds of cellphones and other mobile devices, the Bureau retrieved billions of electronic bits of data and imagery – evidence that probably made this the most massively documented crime in the FBI’s 115-year history.
Joseph Fischer is one of 1,265 individuals who so far have been prosecuted for crimes growing out of the nationwide digital dragnet by the FBI. The search that ultimately led agents to Fischer began with data gathered from a cellphone tower located near the Capitol.
Four days after the attack, the FBI learned of the existence of an online account at Facebook, by a user identified as “SV Spindrift.” The user, agents would say later, “bragged about breaking into the United States Capitol” and posted a video of a man “in the front of the pack, pushing against the police.” There was also a Facebook account number, traced to Fischer’s home.
When federal agents went to Jonestown to arrest him, they asked him for his cellphone. He produced one, but it had not been used since sometime before January 6. The agents searched, and found the cellphone used at the Capitol where he had tried to hide it: under his bed. That device produced a great deal of damning evidence, putting Fischer at the scene and showing him to be a part of the violence that occurred. His exchanges with others on Facebook, for example, included this: “If Trump don’t get in, we better get to war.”
In November 2021, a federal grand jury charged him with seven crimes. Among those, only one charge is before the Supreme Court. It accuses Fischer of “corruptly obstructing, influencing, or impeding an official proceeding” – that is, Congress’s gathering on January 6. If convicted on that count, Fischer could be sentenced to prison for up to 20 years.
The federal law at issue: The law Fischer challenges, passed by Congress in 2002, has been used by prosecutors against 330 individuals in January 6 Capitol riot cases. More broadly, over the past quarter-century, the law has been one of the strongest that prosecutors can use against anyone tampering with witnesses, or making other attempts to obstruct justice.
Congress intended that law to have a wide sweep, because it was reacting to the “Enron scandal,” one of the biggest ever in corporate America. One historian said that Congress wrote the law “in crisis terms and its passage was deemed critical to both the efficient operation of capital markets and the restoration of faith in the American free enterprise system.”
Enron Corp., an energy firm based in Houston, had become the seventh largest company in the nation. In the end, through a vast array of corporate misconduct, the company crashed — the largest firm to go bankrupt in history. Also collapsing was one of the largest accounting firms in the world, Arthur Andersen LLC, which had been Enron’s auditing firm.
The scandal had such huge economic fallout, including massive losses in investors’ and retirees’ portfolios, that multiple congressional committees held wide-ranging, bipartisan investigations. These turned up evidence of a sweeping catalog of business misconduct – including the kind of crime that led to enactment of the law now being used against Joseph Fischer: shredding of documents and deletion of data.
In response, Congress passed the so-called “Sarbanes-Oxley Act,” a sweeping bill of eleven sections and more than 60 pages, mandating major reforms in regulation of corporations and providing severe penalties – including 20 years in prison for destruction of evidence.
The case of Joseph Fischer, a small-town cop, seems far removed from all of that: he is not accused of corporate wrongdoing, nor is he charged with trying to destroy evidence. But his case poses a major test of the meaning of a law vital to prosecutions after the Capitol riot.
The part of the 2002 law has two sections, and the task for the Justices is to decide whether to read them together or separately. The choice is crucial for Fischer. But it won’t be an easy choice for the Court. Four federal judges have examined the meaning of those two clauses; two ruled for him, two against, but it took four separate opinions totaling 132 pages to explain.
The bottom line for Fischer: his challenge failed, but if his case had gone through different lower courts, he would have won. That split led the Supreme Court to agree to hear his appeal. His lawyers have argued that prosecutors charged him under a section “located in the middle of a statute and in a subsection of a subsection.” To see what they mean, here is the exact text:
“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 under this title or imprisoned not more than 20 years, or both.”
Section 1 tracks the evidence-destruction aspect of the Enron scandal. Fischer, though, was charged only with violating Section 2, the “otherwise” clause.
In the appeals court ruling in his case, the majority said that “the most natural reading” was that Section 2 describes a separate crime, done “in a different manner.” The dissenting judge, however, said the sections must be read together, since an “ordinary person” would read the word “otherwise” in Section 2 to mean other ways to violate Section 1.
The questions before the Court: Did Congress, in 2002, make it a crime to obstruct a government proceeding, requiring proof of tampering with official documents? Is Joseph Fischer free of that charge, since there was no such proof against him?
Significance: If the Supreme Court rules for Fischer, it could take away the option of federal prosecutors to pursue this charge against others who rioted at the Capitol, and probably would undo many of the 330 guilty verdicts already reached for that crime in January 6 cases.
In fact, several trial judges in Washington have been ordering the early release from prison of a number of rioters convicted under this provision, acting on the Supreme Court’s agreement to hear Fischer’s challenge, without knowing how his case will be decided.
A ruling in his favor also would limit prosecutors in general from using what has been a highly flexible law, reaching a wide range of other crimes against obstructing justice. And It would be a tart new reminder of what the Court said in a ruling last year: “Crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.”
If the Court were to reject Fischer’s challenge, that would solidify the verdicts already obtained under the 2002 law and enable prosecutors to explore more boldly further expansions of its scope. One consequence of that could well be a lessening of the public’s right to be warned in advance about what kind of conduct will qualify as obstruction of justice.
The outcome could provide a new illustration of how the Court’s dominant conservative majority will apply its preferred mode of interpreting federal laws – that is, focusing on the specific words, and downplaying any other factor, such as a policy goal or purpose of a law.
Significance of this case for Donald Trump: A special federal grand jury summoned by Special Prosecutor Jack Smith to investigate potential crimes in former President Trump’s attempt to stay in office indicted Trump for four crimes. Two of the four counts are based on the same law that Joseph Fischer is challenging.
The Court is aware that a link exists between the Fischer case and the separate appeal that Trump is pursuing at the Court – his sweeping argument that he is totally immune to any of the charges related to the January 6 incident. In February, Trump’s legal team urged the Court to keep the Fischer case in mind as it weighed his appeal, and argued that Trump should not be tried for anything until these disputes are decided.
The immunity case will be heard by the Court next week. (That case will be analyzed more fully in this space before that hearing.) If Trump were to win immunity in that case, the four-count January 6 charges would never be put on trial.
The Court will probably decide both Fischer’s case and Trump’s immunity plea late in the current term, in late June or early July. The Justices very likely will decide them separately, despite the link between them.
Moreover, Special Prosecutor Smith has taken the position that, even if Fischer were to win his claim that the 2002 law requires proof of destruction or alteration of official documents, Trump still could be prosecuted under that law. According to Smith, Trump and his allies joined in a plot to prepare official documents substituting bogus slates of electoral votes to be sent to Congress when it met to decide who won the 2020 presidential election.
The Capitol riot indictment against Trump also accuses him of other charges, not affected in any way by what happens to Fischer: plotting to overturn the 2020 election result and conspiring to interfere with Americans’ right to vote.
The Court will broadcast “live” the audio (no video) of the Fischer hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
