Solicitor General Elizabeth Prelogar could have given a ringing defense of written law against mob rule. Why was she so defensive instead?
Solicitor General Elizabeth Prelogar could have given a ringing defense of written law against mob rule. Why was she so defensive instead?
T here are a lot of angles to Fischer v. United States, the January 6 criminal case that was argued in the Supreme Court on April 16. Andy McCarthy has covered the argument, and I have my own thoughts to hopefully add at greater length another time. One thing about the argument really puzzled me: why Solicitor General Elizabeth Prelogar insisted upon distinguishing January 6 from other types of obstructive protests. I understand what, legally, she thought this would accomplish — but her approach runs the risk of being a disastrous misreading of the justices, and one that may have been driven more by the demands of her client than by a sound strategy for winning the case.
‘Otherwise’
The core question before the Court in Fischer is whether 18 U.S.C. Section 1512(c)(2) makes it a crime to obstruct or impede a proceeding before Congress by preventing Congress from meeting. Here’s Section 1512(c), with italics added:
(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 under this title or imprisoned not more than 20 years, or both.
The statute was written in 2002 in response to the Enron scandal, which involved the company’s auditors at Arthur Anderson destroying records. It aimed largely to close perceived loopholes in federal obstruction-of-justice laws by strengthening the rules against document destruction in court cases and investigations. The “official proceeding” language in both (c)(1) and (c)(2), however, is broad enough that it explicitly covers proceedings before Congress.
Most everyone agrees that the language of (c)(2), if you read it by itself, is broad enough to cover a mob that obstructs and impedes a proceeding by causing it to be delayed or rescheduled. The lawyers for Fischer and other January 6 defendants, however, argue that if you read the whole statute, it’s supposed to cover a list of different ways to mess with the evidence in a proceeding, rather than taking a sharp turn between (c)(1) discussing documents and records to (c)(2) saying “or anything else that gets in the way of a court or Congress doing its business.” The Court has to decide if “otherwise” in this context means “in some other, similar way” or “in some totally other way.” It’s a close call involving a lot of attention to the tools that courts use to make sense of the language of statutes. It has consequences not only for hundreds of people charged under this law for participating in breaching of the Capitol that day, but also for Donald Trump, who has been charged under Section 1512(c)(2) on a related but different theory.
The Law Is the Law
Here’s what surprised me in listening to the argument: By far Prelogar’s strongest rhetorical ground is to wrap herself in the plain language of (c)(2) – “it says what it says, and that’s the law, if you don’t like it, take that up with Congress” — and force her opponent to be the one arguing for an unwritten limitation on what the words mean. That’s a good place to be if you’re arguing before a textualist court, as this one is. It’s also a good place to be if you want to blunt concerns about prosecutorial overzealousness: If the written law draws a clear, red line around the use of protests to prevent Congress or the courts from conducting their business, it’s not much of an answer to say that this was only a delay of a few hours and not some sort of workable plan for a coup d’etat. The law is the law is the law.
Fischer is represented by a veteran criminal-appeals advocate, Jeff Green (a former law-firm colleague of mine). Knowing that his case was a dry argument for applying various Latin maxims to statutory construction in lieu of a plain-language reading of the text, Green has played up a theme that is apt to trouble the justices, especially the Court’s conservatives. He essentially argues that the Justice Department’s reading of Section 1512(c)(2) in the January 6 prosecutions is a species of one-weird-trick Trumplaw, in which a law is suddenly read to have a different, unanticipated, and unprecedented meaning just so that MAGA defendants can be selectively prosecuted for something that didn’t break any specific laws. In Green’s telling, until January 5, 2021, nobody thought that Section 1512(c)(2) was anything but a document-tampering statute, and creative prosecutors retconned it into something else just to get the people who breached the Capitol but couldn’t be charged with other crimes carrying anything like the maximum 20-year penalty under Section 1512(c)(2).
Prelogar is in a bit of a fix responding to this argument, because the DOJ has never before used Section 1512(c)(2) against rioters, mobs, protesters, terrorists, or goons who tried to delay an official proceeding or stop it from happening by force (whether “force” in this context means violence or non-violent mass resistance). But she’s not without a response. She was able to point to cases where courts upheld federal prosecutions under Section 1512(c)(2) for acts of obstruction that were at best very tenuously connected to evidence tampering. In United States v. Reich, (2d Cir. 2007), an opinion written by then-judge Sonia Sotomayor, the Second Circuit found that the statute covered a litigant who forged a court order, making it appear that an order his adversary was appealing via a mandamus petition had been withdrawn. That caused his adversary to withdraw the mandamus petition — thus, preventing that appeal from going forward and wasting the time of the courts. Reich had nothing to do with impairing the truth-seeking function of the courts and everything to do with stalling for time to prevent an official proceeding from happening.
In at least three other cases — United States v. Volpendesto, (7th Cir. 2014), United States v. Ahrensfield, (10th Cir. 2012), and United States v. Phillips, (10th Cir. 2009) — Section 1512(c)(2) was applied to tipping off the targets of undercover stings or grand-jury investigations. Those cases are closer to the heartland of the statute because the conduct affects the gathering of evidence, but they also are clearly far removed from document-shredding.
Those cases, taken together, could support Prelogar in arguing that the plain language of Section 1512(c)(2) and the context in which Congress drafted it showed that the lawmakers aimed to head off any number of unanticipated ways in which people might try to throw sand in the gears of the machinery of courts, investigators, and Congress — and that federal prosecutors had not, before January 6, treated the statute as applying narrowly to the destruction of physical forms of evidence.
Minimizing Comparisons
Prelogar could have stopped there, but she didn’t. As she was pressed by the justices to dispel the appearance of an about-face or a Trump-only legal standard, she ended up undermining that argument by attempting to craft a standard with elements not found in the text, in order to insulate from Section 1512(c)(2) prosecutions the kinds of protests that the Biden administration might look upon with more favor.
When Justice Clarence Thomas asked, “There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past?” Prelogar responded:
I can’t give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring with all of the elements like intent to obstruct, knowledge of the proceeding, having the corruptly mens rea, but that’s just because I’m not aware of that circumstance ever happening prior to January 6th.
Notice the lawyerly qualifiers here. She implies that only those who “violently stormed a building” are covered by Section 1512(c)(2). She kept referencing the violent nature of the January 6 riot. But the statute (in contrast to other sections of Section 1512 that target things like murdering witnesses) says nothing about violence. When Justice Amy Coney Barrett asked Prelogar point-blank if she was saying there was “a violence requirement” in the statute, she backed off, but then added:
What I was trying to say . . . is, in situations where hypotheticals press on the idea that people are engaging in conduct that maybe they think is constitutionally protected, they might be wrong about that, there might not be a First Amendment right that they think they have, but that can demonstrate that they don’t have the requisite consciousness of wrongdoing. That would mean we couldn’t prove an obstruction charge.
Of course, while some of the January 6 defendants (Fischer included) were separately charged with acts of violence, Section 1512(c)(2) has also been used against defendants who did nothing violent and believed that they were acting righteously. Trump’s indictment under Section 1512(c)(2) isn’t premised upon his engaging in violence or directing violence, and Jack Smith would be rather alarmed if he was required to prove that it was.
So, what was Prelogar playing at? One might suspect that she was attempting to draw a distinction between the January 6 defendants and the people who have not been charged for the 2020 riots and other forms of left-wing civil disobedience ranging from interrupting congressional hearings to totally closing off access to the Portland federal courthouse. The mob that shut down the Portland courthouse may not have had what Prelogar refers to as a “specified” proceeding in mind, but the natural and foreseeable consequence of their acts was to obstruct and impede every proceeding that would have taken place in that courthouse. The same is true of the protesters who compelled the Secret Service to move Trump to a secure bunker in May of 2020 when they breached fences around the White House, disrupting government business.
Justice Samuel Alito asked about disruptions of the Supreme Court: “All the protests that have occurred in this Court, the Justice Department has not charged any serious offenses, and I don’t think any one of those protesters has been sentenced to even one day in prison.” Prelogar again responded in defense of the protesters:
They might say that they weren’t conscious of the fact that they weren’t allowed to make that kind of brief protest in the Court. And I think it’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the Justices and other participants to . . . flee for their safety, and done so with clear evidence of intent to obstruct.
That sounds rather off-message for a defense of the rigorous enforcement of the statutory text. Alito continued with the hypotheticals:
Yesterday protesters blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco. What if something similar to that happened all around the Capitol so that members — all the bridges from Virginia were blocked, and members from Virginia who needed to appear at a hearing couldn’t get there or were delayed in getting there? . . . Let’s say they want to get to the Capitol to vote.
Prelogar was grudging: “If we had clear evidence that the purpose of the protesters who had set up the blockage somewhere, some distance away from the Court was because they had a specific proceeding in mind, maybe you have the [required] proceeding.” But still she fought him on whether that was a close enough nexus to shutting down a vote. If anything, the transcript fails to fully capture her defensiveness.
Justice Gorsuch asked, “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” The last of those is not a hypothetical, of course, given that no Section 1512(c)(2) charge was brought against Congressman Jamaal Bowman for the fire-alarm stunt, which plainly delayed a particular House vote that Bowman wanted to stop. Prelogar dodged that but referred later, in a colloquy with Chief Justice John Roberts, to “situations where maybe someone’s pulling a fire alarm in a different building, but it’s not even where the proceeding happens.”
Some of this can perhaps be excused by Prelogar leaning hard on reminding the justices of the distinct statutory requirement that the defendant acted “corruptly.” The Court has reiterated repeatedly that this state of mind requires some knowledge and intent aimed at a particular pending or threatened investigation or proceeding. But even if Prelogar wanted to persuade the justices that some of their hypotheticals would fail to produce convictions due to an absence of corrupt intent, given that her job was to persuade them of a broad (but reasonable) reading of the obstruct-or-impede language, she should at least have been eager to agree that those fact patterns met the obstruct-or-impede requirement. Instead, she fought them all the way.
Worse, Prelogar repeatedly introduced her own non-textual limitation on the statutory language, telling the justices over and over that a “minimal” or “minor” obstruction or impediment would not be covered by statutory language with no such qualification. This began with her telling Justice Alito:
The actus reus does require obstruction, which we understand to be a meaningful interference. So that means that if you have some minor disruption or delay or some minimal outburst, we don’t think it falls within the actus reus to begin with. . . . We don’t think that 1512(c)(2) picks up minimal, de minimis, minor interferences. We think that the term “obstruct” on its face connotes a meaningful interference with a proceeding that actually blocks. . . .
Alito didn’t respond well to this:
JUSTICE ALITO: You argue that there’s . . . an exception for conduct that has only a minimal effect on official proceedings. Where does that come from in the text?
GENERAL PRELOGAR: That comes from the verb phrase “obstruct, influence, or impede,” which we think, if you look at dictionary definitions, conveys the type of action that blocks, hinders, makes difficult, persistently interferes with. You know, this is the kind of — the verbs themselves, we think, inherently contain this limitation.
JUSTICE ALITO: There can’t be a minor impediment?
GENERAL PRELOGAR: I think as a colloquial matter, yes, maybe, but, you know, we think that if you look at what Congress was trying to do as a whole, the lead term here is “obstruct.” These were various ways of trying to capture the world of obstructive conduct, and I think that that adequately conveys the idea that some kind of very minimal, de minimis interference doesn’t qualify.
Alito returned to this later, regarding a hypothetical situation of serial interruptions of a Supreme Court argument:
JUSTICE ALITO: What about the example I gave you about the five protesters in the courtroom? Is that minimal?
GENERAL PRELOGAR: I think that sounds minimal to me. I mean, it sounds to me like, if it hasn’t actually forced any substantial halt to these proceedings, it seems like that wouldn’t pick up and track.
He also grilled her on the Court’s recent decision in Muldrow v. City of St. Louis, in which the Court — agreeing with Prelogar’s argument over Alito’s objection — concluded that there was no need to show that an adverse employment action was “significant” to support a discrimination suit under Title VII of the Civil Rights Act. Why is there a non-textual “de minimis” exception to Section 1512(c)(2), but not to Title VII? Prelogar:
We are grounding this in the text. So we’re not suggesting that there’s a basic de minimis principle that applies throughout all the various legal statutes that are out there, not anything like that. Instead, we ground this in a particular understanding of what it means to obstruct and what that word conveys.
All of this was entirely unnecessary, and antagonized justices such as Alito and Barrett who did not otherwise seem terribly sympathetic to the defense argument. Nothing in the Fischer case required the solicitor general to defend a non-textual “de minimis” exception to Section 1512(c)(2), which badly undercut the rhetorical force of her argument that Section 1512(c)(2) should be enforced relentlessly on the basis of its explicit terms. That raised the conservative justices’ concerns about the good faith of the Justice Department, to no end useful to winning the case.
It also stored up trouble for the DOJ: If a defendant cannot be prosecuted under Section 1512(c)(2) for a merely minimal impediment to a proceeding, might not a lot of January 6 defendants argue that their own personal conduct did very little, on their own, to delay the joint session of Congress on January 6? Fischer himself, for example, was hardly an innocent — he was indicted for fighting with the Capitol cops — but he arrived on the Capitol grounds well after the joint session had been suspended, and left four minutes later. Does Prelogar want the Court to create a new defense for such defendants?
If Prelogar had a strategic reason for doing this, it was her concern that the justices might be spooked by the specter that Section 1512(c)(2) could violate the First Amendment by sweeping in the criminalization of protected political speech. If so, she misread her case and misread the bench. Judge Gregory Katsas raised some serious issues in his dissent in this case at the D.C. Circuit about the sweep of Section 1512(c)(2) against peaceable political advocacy, but most of his concerns were with the statute’s use of the term “influences . . . any official proceeding,” which is unnecessary to construe in a prosecution where the government relies entirely upon showing that the defendants obstructed and impeded the joint session. She could much more profitably have argued that the plain statutory language covers only obstructive conduct that goes well beyond protected speech.
Instead, she gave off the distinct impression that her client — the United States Department of Justice — wants a rule that allows it to go hammer and tongs against Donald Trump’s supporters without running the risk of implicating left-wing protesters whose support Joe Biden needs. That might be a necessary-evil way to run a presidential campaign, but it’s a lousy approach to winning a Supreme Court argument.