After Fischer, What Next?

Every 1512(c)(2) indictment against J6ers is defective, writes criminal defense attorney David Fischer (no relation.) But that is not stopping the DOJ from attempting to concoct a workaround.

Photo by Wesley Tingey on Unsplash

This is a guest post by David W. Fischer, a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A.  Most recently, Mr. Fischer defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.  He is not related to Joseph Fischer, the defendant in the Supreme Court’s Fischer v. United States decision.

On June 28, the United States Supreme Court handed down its opinion in Fischer v. United States, a decision that affects hundreds of January 6 defendants (J6ers) who were charged with felony “obstruction of an official proceeding” for their actions on January 6.  The statute at issue in Fischer, 18 U.S.C. § 1512(c), provides: 

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.

The Department of Justice (DOJ) took the position that subsection (2) of the statute is an independent clause and, accordingly, alleged that the physical presence of protestors illegally inside the Capitol itself constituted “obstruction” of the Electoral College certification on January 6. 

Writing for the 6-3 majority, however, Chief Justice John Roberts rejected the DOJ’s reading, instead holding that the government must prove that a defendant’s alleged obstruction must relate to the impairment of evidence, i.e., “records, documents, or objects,” intended for use in the proceeding.

Contrary to the DOJ’s recent spin, the Fischer decision was a massive defeat for the government, as it had (mis) used Section 1512(c)(2)—a felony that entailed draconian sentencing guidelines and a presumption that charged defendants be held pre-trial without bail—against nearly 340 J6ers.

Fischer Decision is Hardly Controversial

While left-leaning lawyers have been endlessly tweeting about Fischer being proof of a judicial putsch in favor of Donald Trump, the Supreme Court’s decision is hardly surprising.  For years the Supreme Court, led by the late Justice Ruth Bader Ginsburg, has reigned in the DOJ’s broad interpretations of obstruction statutes.  In fact, the Fischer majority heavily relied on Justice Ginsburg’s seminal opinion in United States v. Yates, a 2015 decision, where the Supreme Court rejected the DOJ’s contention that a similarly-worded obstruction statute applied to fishermen deep-sixing their catch just before an inspection of their vessel.

The main point of contention in Fischer was Congress’s use of the word “otherwise” between the two clauses in Section 1512(c).  The majority—correctly—ruled that “otherwise” was intended to connect the two clauses; hence, the second clause was not a sweeping, independent obstruction statute but, rather, a “residual clause” designed by Congress to criminalize similar, but slightly different, acts of evidence destruction. 

For example, if a crooked CEO under investigation by the S.E.C. sets out thousands of incriminating documents on his porch, knowing they will be blown away by the wind, he did not “alter,” “destroy” “mutilate,” or “conceal” documents, but he would still be guilty of Section 1512(c)(2) because his conduct “otherwise” obstructed a grand jury investigation by preventing relevant documents from being reviewed.

How will Fischer affect January 6 defendants?

The Fischer decision opens the door to the dismissal of every single Section 1512(c)(2) count that was charged against January 6 defendants, even those defendants who have already entered a guilty plea (mostly under prosecutorial threat) or were found guilty by a judge or jury.  Why?  To answer that question, one must understand the importance of charging language used in grand jury indictments and other charging documents.

In order to properly charge a person with a crime, the government, through the grand jury, must spell out each and every “essential element” of the crime charged.  It is not good enough to allege in an indictment, for example, that John Doe “committed a burglary.”  Instead, a constitutionally valid burglary indictment must include all essential elements that comprise the crime of burglary, e.g., that John Doe “did break and enter the dwelling of Jane Smith with the intent to commit a felony therein.”  The correct charging language is constitutional, as it puts John Doe on notice that his alleged criminal conduct was: 1) breaking and entering; 2) the dwelling of another person; 3) and did so with the intent to commit a felony.

If the prosecutor screws up and fails to list each and every essential element of a crime in the indictment, the prosecutor has failed to charge a crime, even if it is obvious which crime was intended to be charged.  The failure to list all essential elements of a crime makes the indicted count “jurisdictionally defective.” 

In other words, the Court lacks the power, i.e., the authority to exercise jurisdiction, to enter a judgment of conviction against the defendant, since a crime has not been alleged.  More importantly, the prosecutor is prohibited from correcting a jurisdictional defect in an indictment.  Finally, a defendant can move to dismiss a jurisdictionally defective indictment at any time—before or during trial, after he or she is convicted, and even in an appellate court.  In short, failure to allege each and every essential element of a crime in an indictment equals a failure to charge a crime, and courts cannot punish those who were never charged with a crime in the first place.

How does this apply to J6ers?

Every indictment in January 6 cases that charged defendants with violating 18 U.S.C. § 1512(c)(2) used the exact same charging language: “On or about January 6, 2021, the defendant did corruptly obstruct, influence and impede an official proceeding[.]” Under the Fischer decision, however, the government must prove that a J6er’s intent was to “impair the use or availability” of “documents, records, or objects” or “witness testimony” for an official proceeding. 

Accordingly, every J6er Section 1512(c)(2) indictment is defective because all fail to allege two essential elements of that statute—that the defendant 1) targeted tangible or intangible evidence; and 2) did so with the intent to impair the use or availability of this evidence for an official proceeding. 

In short, the DOJ charged hundreds of J6ers with non-crimes; any current or convicted defendants will likely have success in moving to dismiss their Section 1512(c)(2) counts or in setting aside their guilty pleas based on the holding in Fischer.

Will the DOJ Empire Strike Back?

The DOJ is not happy about the Fischer decision and is currently strategizing ways to circumvent the Supreme Court’s ruling.  For example, in certain cases the DOJ may attempt to recharge using corrected charging language in indictments, which will claim that particular defendants targeted the ceremonial ballot box or other documents used by Congress during the January 6 certification.  Creative charging language, however, doesn’t change the evidence, which is quite strong that none of the J6ers were targeting evidence.

January 6, obviously, was a protest that got out of hand.  Unfortunately, many of the judges in D.C. have been amenable to the DOJ’s expansive reading of the law.  Nevertheless, the Fischer decision likely means very good news for most defendants who were charged with obstructing Congress.