The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact

What does the Supreme Court’s decision in Fischer v. United States mean for former President Donald Trump’s D.C. criminal case and the hundreds of other January 6th defendants? A whole lot less than one might think, as we show with the hard data set out below.

The Fischer decision

The Supreme Court’s decision issued Friday, June 28, addresses the scope of 18 U.S.C. Section 1512(c)(2), a federal obstruction of justice statute that the Justice Department has used as one of the charges for January 6th defendants.

No doubt, the Supreme Court’s decision deals a soft blow to the government’s use of the (c)(2) provision of Section 1512. Section 1512(c) prohibits corruptly obstructing an official proceeding in two ways: first, under subsection (c)(1), by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding, and second, under subsection (c)(2), by “otherwise” obstructing, influencing, or impeding an official proceeding. Rather than apply what the U.S. Solicitor General described as the plain meaning of the word “otherwise” to other means of obstructing the proceeding, such as by violently attacking the joint session of congress to count the electoral ballots–a plain meaning with which Justices Barrett, Sotomayor, and Kagan generally concurred in dissent–the Court held that the obstruction barred by (c)(2) must be tied to impairing the integrity or availability of evidence.

However, the Court gives an expansive reading of (c)(2). As the Court noted, Section (c)(2) liability encompasses creating false evidence, and not just altering incriminating evidence, as well as “impairing the availability or integrity of other things used in an official proceeding beyond the ‘record[s], document[s], or other object[s]’ enumerated in (c)(1), such as witness testimony or intangible information.”

We bracket for now whether the government could pursue Section (c)(2) charges against Capitol rioters on the theory that they acted to “impair[] the availability . . . of other things used in the official proceedings,” namely, the security of the genuine electoral certificates. The final passage of Justice Ketanji Brown Jackson’s concurrence makes plain that this an avenue worth considering. She writes:

“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”

But even if the result of the Court’s ruling is to invalidate Section(c)(2) charges against those who attacked the Capitol, as the data below reveal, the government has many tools in its tool kit to hold accountable those individuals criminally responsible, and the decision will have minimal impact on its cases against the great majority of those already convicted or charged.

The Limited Impact of Fischer

Assessing the impact of this decision needs to be done dispassionately and with nuance. The upshot is that the decision means little in terms of the pending charges against former President Donald Trump. It means potentially more to a subset of the January 6th defendants who were charged under this statute, who comprise only a fraction – 24% – of the existing January 6th defendants. And even within that 24%, in the great majority of cases that have resulted in a guilty verdict (by plea or after trial) for a 1512(c)(2) offense, the defendant was also found guilty of one or more other felonies (62%). Further, as to the 71 defendants who have been charged under Section 1512(c)(2) and are still awaiting trial, all of them are charged with crimes in addition to 1512(c)(2), and a majority are charged with one or more other felonies. A perfect illustration of this is the three defendants whose cases led to the Supreme Court taking up the 1512(c)(2) statutory interpretation issue: Joseph Fischer, Edward Lang, and Garrett Miller. All three were charged with several other felonies including assaulting law enforcement officers. And even for the small percentage of defendants who may now be subject to resentencing post-Fischer, judges can still take into account the underlying conduct that formed the basis for the 1512(c)(2) violation.

An important cautionary note is that commentators and journalists may mistakenly be drawn to a narrative that the Court’s ruling exposes “overreach” on the part of the Justice Department by prosecutors’ resort to the 1512(c)(2) statutory charge. That simply is belied by hard facts, for the reasons noted below.

The data about the J6 cases reveal the following:

1. Very few cases are likely to be materially affected by the Supreme Court ruling in Fischer v. United States.

Approximately a quarter of the January 6th defendants (24%) were charged with Section 1512(c)(2) (NPR database). However, only 26 of these defendants have been (or were scheduled to be) sentenced solely for a violation of 1512(c)(2). That’s because only 26 defendants pleaded guilty exclusively to 1512(c)(2) and no other crime; and all other guilty pleas and guilty verdicts after trial included additional federal crimes beyond 1512(c)(2).

Moreover, that does not mean that these 26 go scot free.

First, for those who pleaded guilty to a 1512 charge (the 26 who pleaded solely to 1512(c)(2) and an additional 22 who pleaded to 1512(c)(2) and additional crimes, for a total of 48), they did so pursuant to a plea agreement that specifically contemplated the possibility of 1512(c)(2) being vacated. The agreement provides that in the event the 1512 conviction following the guilty plea is vacated, the defendant may be prosecuted for the other crimes that the Justice Department initially brought against them, but agreed not to pursue so long as the 1512(c)(2) charge was not vacated. (The precise plea language is quoted below.)

Second, for those who were found guilty after trial of a 1512(c)(2) charge (a total of 125 cases), every defendant has also been found guilty of other charges. Those other charges are unaffected by the Fischer decision. That said, those defendants may need to be resentenced if the 1512(c)(2) charge may have resulted in a higher sentence. But, upon resentencing, judges may still take into account a defendant’s wrongful conduct reflected in the allegations of a 1512(c)(2) violation, even though the conviction for such an offense will be excluded from the advisory guideline calculation. As noted above, Fischer may also permit these defendants to be tried for a 1512(c)(2) offense under the new Fischer standard.

We illustrate in the two pie charts below the limited nature of the effect of Fischer on the January 6 cases. We go on to describe the date, below.

Data on Existing January 6 Defendants:

1. Total number of people charged in January 6th Capitol riot: 1417

2. Number of people charged with a Section 1512(c)(2) violation: 346 (24%)

Data with Respect to the 346 Charged with Section 1512(c)(2):

A. Guilty verdicts after trial:

1. Number of people found guilty after trial: 128 (9% of total Capitol riot cases)

2. All 128 were found guilty of at least one other crime

Other crime includes at least one other felony: 88*

Other crime includes only one or more misdemeanors: 40

*One defendant was also found guilty of a felony conspiracy which had two felony objects (one predicated on a 1512(c)(2) offense and another on 1512(c)(1)), and thus conceivably could be retried

B. Guilty verdicts after guilty pleas:

1. Number of people who pleaded guilty to a 1512(c)(2) offense: 48 (3% of total Capitol riot cases)

Aside: 82 people who were charged in an indictment that included a 1512(c)(2) offense pleaded guilty to a different charged crime, and not to the 1512(c)(2) offense. Their cases, including their sentences, are unaffected by Fischer.

2. Of those 48, 22 pleaded guilty to Section 1512(c)(2) and at least one other crime.

Details about the 48:

–The other crime(s) includes one or more felonies: 21

• • 5 of these other crimes are for conspiracy. For 2 of these 5 cases (defendants Berry (Information; plea agreement) and Grods (Information; plea agreement)) the only other felony to which the defendants pleaded guilty was conspiracy, and that conspiracy is predicated on the Section 1512(c)(2) offense. Their Statements of Offense indicate other crimes for which they could be prosecuted (e.g., “Mr. Grods, at least some of the co-conspirators, and other individuals unlawfully entered the U.S. Capitol Building … Mr. Grods entered the U.S. Capitol carrying a large stick;” and “Mr. Berry and at least some of the co-conspirators then unlawfully entered the U.S. Capitol Building itself.”). For 3 of the 5 cases, based on the terms of the plea agreements, the defendants may be recharged with other felonies for which they were initially charged.

–The other crime(s) includes only misdemeanor(s): 1

• • This defendant, however, was charged with another felony for which he could still face charges under the terms of the plea agreement, quoted below.

3. Of the 48, 26 people pleaded guilty to Section 1512(c)(2) and no other crime.

Details for 26:

Number of people who could still face charges for other felonies and misdemeanors: 15

Number of people who could still face charges only for misdemeanors: 11

For the 26 defendants who have been sentenced on the basis of 1512(c)(2) alone: The Department of Justice may still prosecute them. Every plea agreement available in the DOJ’s database includes a provision that the prosecution’s agreement not to prosecute other crimes arising from January 6th is void if the Section 1512(c)(2) conviction is “vacated for any reason.” In that event, the government reserves the right to prosecute any crimes “based on the conduct set forth in the attached Statement of Offense,” including “any counts that the government has agreed not to prosecute or to dismiss at sentencing,” notwithstanding any limits otherwise imposed by statutes of limitations. The available Statements of Offense (and initial charges by the government) suggest that 15 of these 26 defendants (a majority) – could be prosecuted for other felonies, such as Civil Disorder and Theft of Government Property. Eleven defendants appear to lack other felony charges but could be prosecuted for several misdemeanors such as Entering and Remaining in a Restricted Building or Grounds and Parading, Demonstrating, or Picketing in a Capitol Building.

C. Pending trial

Of the 346 charged under 1512(c)(2), 71 people are awaiting trial (5% of total Capitol riot cases) and all are facing charges in addition to the 1512(c)(2) charge.

Of those 71 defendants, 38 are charged with another felony, 33 are charged with only misdemeanors.

2. Near unanimous support for the Justice Department’s interpretation of the statute by federal district court judges (14-1).

It is wrong to cast doubt on the DOJ’s decision to charge the 1512(c)(2) offense in connection with the January 6th events. Fourteen out of fifteen district court judges affirmed that the statute was applicable and rejected defense challenges analogous to Fischer’s interpretation of the statutory provision. Those fourteen judges include three Trump appointees (Judges Dabney L. Friedrich, Timothy J. Kelly, and Trevor N. McFadden). No Biden appointee has ruled on this issue.

The U.S. Court of Appeals for the District of Columbia Circuit in United States v. Fischer had upheld the DOJ’s interpretation of the statute in a 2-1 decision.

3. A reasonable interpretation of Section 1512(c)(2).

The Justice Department’s reading of the statute was entirely reasonable. Indeed, in addition to the many judges who had supported its usage, many an objective observer will be persuaded by Justice Amy Coney Barrett’s dissent in Fischer (see especially pages 2-3). Indeed, Justice Barrett, with Justices Sonia Sotomayor and Elena Kagan joining, writes: “The case for the Government’s interpretation is straightforward.”

4. A practice followed by both the Trump and Biden administrations.

The Trump administration’s Department of Justice was the first to use this specific obstruction statute – 18 U.S.C. § 1512(c)(2) – to prosecute individuals who participated in the Capitol riot (see for example, Indictment of Jacob Chansley on Jan. 11, 2021 and the Criminal Complaint against Joe Biggs on Jan. 19, 2021).

5. Convictions of white supremacist and anti-government extremist militias materially unaffected.

The most important January 6th cases – the seditious conspiracy convictions of members of the Proud Boys and Oath Keepers for their orchestrated attack on the Capitol – are largely unaffected by the Supreme Court ruling.

Proud Boys Seditious Conspiracy Convictions:

4 of 5 defendants convicted of seditious conspiracy, including the leader of the group

5 of 5 defendants convicted of Section 1512(c)(2) and other felonies including violent crimes

Oath Keepers Seditious Conspiracy Convictions (trial 1 and trial 2):

6 of 9 defendants convicted of seditious conspiracy, including the leader of the group

9 of 9 defendants convicted of Section 1512(c)(2) and other felonies including violent crimes

6. Charges against Trump materially unaffected.

The case against former President Trump remains prosecutable even though the Supreme Court has narrowed the scope of the obstruction statute. First, Trump is charged with other crimes (Conspiracy to Defraud the United States (18 USC 371) and Conspiracy Against Rights (18 USC 241)), which are unaffected by the ruling. Notably, those charges are based on the same alleged facts as the two obstruction charges against Trump (a Section 1512(c)(2) offense and a conspiracy to commit a Section 1512(c)(2) offense.) Second, as Justice Barrett suggested in oral argument, the issue in Fischer may not affect the statute’s application to charges involving interference with “the certificates arriving to the vice president’s desk” or other acts of obstruction that involve “acting on the certificates.” That line drawing has implications for the Section 1512(c)(2) charges against Trump that relate to the use of false elector certificates. Indeed, Special Counsel Jack Smith has also noted in Supreme Court filings “whether the Court interprets Section 1512(c)(2) consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid.”

The majority in Fischer leaves this door wide open in writing: “[S]ubsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1). For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence” (emphasis added).

Notably, the evidence-impairment provision in Section 1512(c)(2) could also apply to others involved in the false electors scheme.

The authors thank Adam Klasfeld who contributed to this article and thank Audrey Balliette for exceptional research assistance. The authors are also grateful to the exceptional team at NPR for their detailed database of January 6th Capitol riot cases, from which we drew the data. All errors are our own.

Most Common Federal Offenses Charged in January 6th Capitol Riot Cases

FELONIES
18 U.S. Code § 111	Assaulting, resisting, or impeding certain officers or employees	assaulting, resisting, or impeding law enforcement officers inflicting bodily injury on certain officers
18 U.S. Code § 231	Civil disorders	civil disorder interfering with a law enforcement officer during a civil disorder
18 U.S. Code § 372	Conspiracy to impede or injure officer	conspiring to prevent an officer of the United States from discharging a duty
18 U.S. Code § 1519	Destruction, alteration, or falsification of records in Federal investigations and bankruptcy	corruptly altering, destroying, mutilating or concealing a record
18 U.S. Code § 1361	Government property or contracts	destruction of government property (if over $1,000)
18 U.S. Code § 641	Public money, property or records	theft of government property (if over $1,000)
18 U.S. Code § 1752	Restricted building or grounds	entering and remaining in a restricted building or grounds if done with use or carrying a deadly or dangerous weapon or firearm or if done with result of significant bodily injury disorderly and disruptive conduct in a restricted building or grounds if done with use or carrying a deadly or dangerous weapon or firearm or if done with result of significant bodily injury engaging in physical violence in a restricted building or grounds if done with use or carrying a deadly or dangerous weapon or firearm or if done with result of significant bodily injury
18 U.S. Code § 2384	Seditious conspiracy	Seditious conspiracy
18 U.S. Code § 1512	Tampering with a witness, victim, or an informant	tampering with documents or proceedings
MISDEMEANORS
18 U.S. Code § 1361	Government property or contracts	destruction of government property (if under $1,000)
18 U.S. Code § 641	Public money, property or records	theft of government property (if under $1,000) (examples: theft of an “area closed” sign, an American flag, a flagpole)
18 U.S. Code § 1752	Restricted building or grounds	entering and remaining in a restricted building or grounds disorderly and disruptive conduct in a restricted building or grounds engaging in physical violence in a restricted building or grounds
40 U.S. Code § 5104	Unlawful activities	disorderly conduct in a Capitol Building entering and remaining on the floor of congress entering and remaining in the gallery of congress committing an act of violence in the Capitol Building or grounds parading, demonstrating, or picketing in a Capitol Building stepping, climbing, removing, or injuring property on capitol grounds

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