Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington, D.C. on Oct. 7, 2022. - (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson. (OLIVIER DOULIERY/AFP via Getty Images)
But others on the court appeared to agree with the government’s view that Congress intended to allow a "classic catchall" to include other obstructive behavior involving official proceedings.
Justice Sonia Sotomayor said the provision was designed to "cover every base," including the Capitol riots.
"We’ve never had a situation before," she said, "with people attempting to stop a proceeding violently."
A federal judge earlier dismissed the obstruction offense against three Jan. 6 criminal defendants, ruling it did not cover their conduct on the Capitol grounds. Those defendants include Fischer, Garret Miller of the Dallas area, and Edward Jacob Lang of New York’s Hudson Valley.
The high court accepted Fischer's appeal for final review.
U.S. District Judge Carl Nichols, a 2019 Trump bench appointee, determined prosecutors stretched the law beyond its scope to inappropriately apply it in these cases, ruling a defendant must have taken "some action with respect to a document, record or other object" to obstruct an official proceeding under the law.
The Justice Department challenged that ruling, and a federal appeals court in Washington agreed with prosecutors that Nichols’ interpretation of the law was too limited.
The relevant statute – 18 U.S. Code Section 1512(c)(2) – of the Corporate Fraud Accountability, part of the Sarbanes-Oxley Act, reads: "Whoever corruptly… 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."
Congress passed the law in 2002, after the Enron financial and accounting scandal. Executives at the Texas-based energy company were charged with fraud, and the company eventually went bankrupt.
Nichols, in his ruling in the Miller case, cited then-Senator Biden, who referred to the new provision at the time as "making it a crime for document shredding."
Both the government and Fischer – who was a North Cornwall Township police officer in Pennsylvania at the time – offer contrasting accounts of his actions on Jan. 6, 2021.
Then-Supreme Court Justice nominee Amy Coney Barrett testifies on the third day of her Senate Judiciary Committee confirmation hearing in the Hart Senate Office Building on Wednesday, Oct. 14, 2020. (Tom Williams/CQ-Roll Call, Inc via Getty Images/POOL)
U.S. Solicitor General Elizabeth Prelogar struggled to find specific examples but did say the obstruction provision was used in document forgery and witness tampering cases.
"For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses," said Justice Samuel Alito, suggesting the obstruction statute was not being applied fairly.
"What happened Jan. 6 was very, very, serious. I’m not equating this with that," added Alito." But we need to find what are the outer reaches of this statute under your interpretation."
Fischer awaits trial on six other criminal offenses and has pleaded not guilty.
"Why aren't those six counts good enough?" Justice Brett Kavanaugh asked, questioning the necessity of adding the obstruction offense.
How a Supreme Court ruling in the Fischer case would affect Trump's separate prosecution for election interference is unclear. If Fischer prevails, the former president could then ask the federal courts to formally dismiss his obstruction charge.
That could prompt a new round of separate legal appeals that might go back to the Supreme Court for final review.
Nine days after oral arguments in the Fischer case, the justices are expected to hold a public session to debate whether Trump enjoys absolute immunity from prosecution for conduct in office when allegedly seeking to overturn the 2020 election results and certification.
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That has paused Trump's criminal conspiracy and obstruction trial indefinitely.
The separate challenge over the obstruction charge would also likely push the schedule well into next year.
The pending high court case is Fischer v. U.S. (23-5572). A ruling is expected by early summer.
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https://www.foxnews.com/politics/supreme-court-wary-of-obstruction-charge-used-against-some-january-6-riot-defendants