The Supreme Court Stops Biden’s Excessive Prosecutions in Their Tracks and Protects the Right To Protest

Today the Supreme Court issued a major win for the cause of liberty and free speech. In Fischer v. United States, the Supreme Court ruled 6-3 (in an opinion by Chief Justice Roberts with Justices Barrett, Sotomayor, and Kagan dissenting) that the D.C. Circuit’s interpretation of the destruction-of-evidence statute was improper and incorrect. This ruling is a significant step in making sure that the people are not curtailed and punished by laws that infringe upon their speech.

While the case is about a statute that is being broadly used to prosecute January 6, including President Trump, it could also have dangerous impacts on otherwise lawful free speech and assembly of activists and protestors.

As we explained when we filed our amicus brief:

In a devastating blow to the fundamental principles of free speech enshrined in the First Amendment, the D.C. Circuit has wielded a destruction-of-evidence statute as a weapon against any actions that might “influence” official proceedings. We have filed an amicus brief in the United States Supreme Court in Fischer v. United States to defend people’s right to protest and advocate. Our brief is not in support of the particular individual in that case, nor does it concern the specific facts alleged against him. Rather, our brief is filed on behalf of anyone who may engage in constitutionally protected advocacy, especially advocacy seeking to protect the right to life.

The case concerned the interpretation of a criminal law, 18 U.S.C. § 1512, which is part of a set of statutes relating to the destruction of evidence. The D.C. Circuit ruled that this statute, which punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,” can apply broadly to many kinds of conduct. It decided that “otherwise” does not really limit the statute and that any action taken to influence official actions is sufficient to be a violation of this law.

We explained in our brief how dangerous this is:

The interpretation the D.C. Circuit adopted of 18 U.S.C. § 1512, the obstruction-of-evidence statute, reads that statute so broadly that it includes within its scope – and thus prohibits – wide swaths of protected activity, subject to a twenty-year prison sentence. Under the D.C. Circuit’s interpretation, any act taken to influence an official proceeding constitutes the requisite act to establish criminal liability under the statute. This would include protesting a congressional proceeding, advocating for a result at an administrative hearing, and seeking to influence this Court’s proceedings through advocacy. The statute’s actus reus is so broad that it encompasses almost every form of political activity.

We urged the Supreme Court that, rather than endorsing the D.C. circuit’s extension of this statute to protected activity, the Supreme Court should simply recognize that otherwise properly defines the role of the statute to apply to the destruction of evidence.

Thankfully, the Supreme Court did exactly that. The Court ruled today that the D.C. Circuit’s interpretation of the statute was far broader than is constitutionally appropriate. Agreeing with the arguments we made, the Court held that to prove a violation of the law, the government must show that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so. The Supreme Court’s analysis mirrors our own:

Even setting surplusage aside, that novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison. As the Solicitor General acknowledged at oral argument, under the Government’s interpretation, a peaceful protester could conceivably be charged under §1512(c)(2) and face a 20-year sentence. Tr. of Oral Arg. 51–52. And the Government would likewise have no apparent obstacle to prosecuting under (c)(2) any lobbying activity that “influences” an official proceeding and is undertaken “corruptly.”

Just as our brief urged the Court to do, the Supreme Court refused to transform “this evidence-focused statute into a one-size-fits-all solution to obstruction of justice.” The Supreme Court rejected the government’s theories for the very reasons we urged the Court to do so; for example, the 20-year prison sentence for peaceful protesting was one of the things we specifically highlighted as a reason for rejecting the government’s position, and the Supreme Court viewed that length as a specific demonstration of why the government’s interpretation was improper. The Court also highlighted linguistic reasons to reject the D.C. Circuit’s analysis; the natural meaning of words, as we also highlighted in our brief, simply is that “otherwise” means something based on the words that surround it.

This case isn’t just a victory for individual defendants dealing with a particular criminal statute. It represents a win for the First Amendment rights of all Americans. Relying on basic interpretative principles, such as the interpretative rule “that a general phrase can be given a more focused meaning by the terms linked to it,” the Supreme Court cut back on the overbreadth of the D.C. Circuit and ensured that constitutional rights are not infringed upon by overbroad interpretations of criminal law.

Justice Jackson, who joined the majority opinion, also wrote a concurring opinion. She stressed that despite “the shocking circumstances involved in this case,” the “Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here.” In other words, she agreed with the majority opinion’s analysis also (while expressing her displeasure about the events of January 6). In fact, she even highlighted some of the points we had made, likewise criticizing the broad reach of the government’s interpretation and the length of the sentence imposed by the law.

Justice Barrett’s dissent, in contrast, agreed with the D.C. Circuit that the statute had a broad interpretation and that “otherwise” did not limit the statute’s meaning. She argued that the “corruptly” element could screen out innocent activists and lobbyists who engage in lawful activity. And if not, those defendants can bring as-applied First Amendment challenges. We responded to this argument and explained in our brief why this argument doesn’t work; it sweeps up just about everything into the statute, and then it would force defendants to prove affirmatively a First Amendment case or force them to prove they did not act “corruptly,” whatever that means.

The case will now go back to the D.C. Circuit, which will have to determine whether the charges against Fischer can stand under the proper interpretation. Moreover, this decision directly interprets the laws under which President Trump has been charged and will directly affect whether the prosecution against him in D.C. can continue.