The Biden Administration’s Aggressive Interpretation of the Sarbanes-Oxley Act Has Its Day in Court

Tomorrow the Supreme Court will hear oral argument in Fischer v. United States, one of the highest profile cases this term because it involves the January 6, 2021, Capitol riot. The specific question before the Court involves the construction of 18 U.S.C. § 1512(c), which was enacted as part of the Sarbanes-Oxley Act of 2002 amid the corporate scandals of the early 2000s: Does that provision, which prohibits the obstruction of congressional inquiries and investigations, cover acts that are unrelated to investigations and evidence?

This is not an all-encompassing case about January 6. The rioters have faced a variety of charges depending on circumstances and evidence. About 1,265 January 6 defendants have been charged with one or more offenses, but some 330 of them were charged with violating § 1512(c). There are numerous statutes that penalize the conduct of rioters, but that provision stands out as a questionable statutory fit. The petitioner in this case, Joseph Fischer, who was then a police officer, allegedly sent text messages prior to January 6 with belligerent statements including, “Take democratic congress to the gallows. . . . Can’t vote if they can’t breathe . . . lol.” Fischer told his police chief that he might be needed to post his bail, that “[i]t might get violent,” and that “they should storm the capital and drag all the democrates [sic] into the street and have a mob trial.” On January 6, Fischer was alleged to have been part of the mob, encouraging rioters to “charge” and crashing the police line himself, albeit after Congress had recessed. He was indicted on seven counts charging him with assaulting police officers and engaging in other prohibited conduct at the Capitol, but it is the § 1512(c) charge that is the subject of the appeal.

Judge Carl Nichols of the district court granted Fischer’s motion to dismiss on that count, but the D.C. Circuit reversed in a decision by Judge Florence Pan, joined in part by Judge Justin Walker, with Judge Greg Katsas in dissent. The statutory language authorizes penalties up to 20 years imprisonment for

[w]hoever 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 . . . .

The key question centers around subsection (c)(2)’s language beginning with the word “otherwise.” The D.C. Circuit majority held from the commonplace meaning of “otherwise” that “§ 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by § 1512(c)(1).” The majority drew from what it called the “commonplace, dictionary meaning of the word ‘otherwise’: ‘in a different manner.’” It found “corrupt” intent and the targeting of an “official proceeding” to be significant limitations on the application of subsection (c)(2). Fourteen of fifteen district judges in the District of Columbia also found the statute to be broad enough to uphold the prosecution of January 6 rioters.

Judge Katsas noted that “an otherwise clause” that introduces “a residual clause following a list of examples . . . is not unambiguously all-encompassing. It can connote not only difference but also a degree of similarity, particularly where necessary to avoid reducing the examples to surplusage.” In context, Katsas found subsection (c)(2) applies only “to conduct that impairs the integrity or availability of evidence.” He invoked a number of tools of statutory construction for this conclusion. One is ejusdem generis—general words following specific words “are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Another is noscitur a sociis—“a word is given more precise content by the neighboring words with which it is associated.” As a simple illustration, Katsas posited, “If I claimed to love ‘lions, tigers, giraffes, and other animals,’ you would recognize that the examples all involve large game. You would thus understand that ‘animals’ likely includes elephants, may include dogs, and likely excludes mice.” Mice would certainly not be “unambiguously” included. “[D]ictionary definitions of ‘animal’ would be no help in distinguishing among elephants, dogs, and mice,” but the natural understanding is “that what follows a residual ‘other’ or ‘otherwise’ clause is likely similar (though not identical) to the examples that precede it.”

On the scope of the term “corruptly,” the Katsas dissent maintained that it was limited to procuring an unlawful benefit where the benefit sought is a “financial, professional, or exculpatory advantage.” In a partial concurring opinion, Judge Walker was “not so sure” that “unlawful benefit” should be so limited, but in any event, he continued, the conduct at issue “may have been an attempt to help Donald Trump unlawfully secure a professional advantage—the presidency.” The benefit, in his view, could “be unlawful either because the benefit itself is not allowed by law, or because it was obtained by unlawful means.”

Judge Walker’s construction of “corruptly” poses a narrower theory of liability than Judge Pan’s construction—which the judge did not join, as indicated in his partially concurring opinion—holding any of several interpretations of the term to permit liability. Judge Katsas feared that his colleagues’ interpretations would have § 1512(c)(2) cover “large swaths of advocacy, lobbying, and protest,” but Walker countered that that would not happen because “[a] defendant is liable only if he intends to procure an unlawful benefit.” Katsas responded that such “allowance for mistake of law as a complete defense” is “an interpretation of corruptly that appears to have been used so far only in tax law.” And even with that interpretation, a hypothetical protester who was, say, “picketing outside the home of a judge to influence his or her votes” in violation of 18 U.S.C. § 1507 “would be protected only until the jurist, a neighbor, or the police told the protester what the law is.” Then the protester would incongruously be exposed “not only to the one-year sentence set forth in section 1507, but also to the twenty-year sentence set forth in section 1512(c).”

On the overarching analysis, Katsas found the statutory text at issue to be ambiguous while his two colleagues did not. If ambiguous, the rule of lenity would resolve the case in favor of Fischer. It is difficult to find this language to be unambiguously in favor of the government given that the broader statute of which it is a part, the Sarbanes-Oxley Act, clearly aimed to respond to evidence impairment, and in two decades on the books, § 1512(c)(2) was uniformly treated as an evidence-impairment crime until the January 6 prosecutions. So I think Katsas has the better of the argument.

How the justices will come out in this case remains to be seen. The case’s high profile derives not only from its immediate impact upon January 6 rioters, but also from the pending federal prosecution of former President Trump in connection with the 2020 election, which includes counts under § 1512(c)(2). Many are understandably asking whether a Supreme Court win for Fischer would translate into dismissal for Trump. But the nature of the factual allegations against Trump are starkly different from those against Fischer. Among the charges against Trump is the allegation that he tried to use fraudulent electoral certifications at the joint session of Congress on January 6. Whether or not that charge would withstand the scrutiny of trial, because it involves the integrity of evidence submitted to Congress, it is doubtful that a victory for Fischer would have much bearing on whether Trump would prevail on a motion to dismiss his § 1512(c)(2) charges. But expect media coverage to focus on that question more than the one actually involved in Fischer.