In the J6 cases

In a week laden with news, we shouldn’t overlook the oral argument held yesterday by the Supreme Court in Fischer v. United States. The issue before the Court. Fischer is one of some 350 January 6 defendants charged with obstructing an official congressional proceeding allegedly in violation of 18 U.S.C. § 1512(c)(2) of the Sarbanes-Oxley Act (as well as other federal offenses). The question before the Court is whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing the statute, which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.

The Supreme Court has posted audio of the oral argument here and transcript here. Briefs of the parties and amici curiae are accessible at the Court’s online docket at the link on the italicized case name above. Cornell’s Legal Information Institute has posted helpful legal background to the case as it comes before the Court here. Unlike the audio clip posted at the Supreme Court, videos of the Supreme Court audio (including C-SPAN’s) begin a few seconds into Fischer attorney Jeffrey Green’s oral argument.

The case raises a question of statutory construction and related canons of construction, such as ejusdem generis. The Court’s unanimous April 12 opinion by Chief Justice Roberts in Bissonnette turned on this doctrine and comes up in the course of the oral argument.

The reading of the statute’s mens rea element (“corruptly”) also comes up. The justices refer to the case of Snyder v. United States, in which the Court held oral argument on Monday. Solicitor General Elizabeth Prelogar refers to several federal criminal statutes that incorporate the same mens rea element, such as 18 U.S.C. § 7212. Her argument prompted me to recall I had written an opinion for the Eighth Circuit as a law clerk in which the defendant (a tax-protester) had been convicted under § 7212.

The oral argument is immersed in issues of statutory construction bearing on the word “otherwise.” Without background in the issues, it is difficult to follow at this stage of the proceedings. Jewish World Review has posted the Washington Post story by Ann Marimow on the oral argument and it covers the argument in comprehensible form for lay readers.

To give you a flavor, consider the question posed by Justice Kavanaugh to Prelogar at page 96 of the hearing transcript:

I think the key word in the — is “otherwise.” And trying to figure out what that means under our established principles of statutory interpretation, it would seem to trigger ejusdem generis under the Begay precedent. And you’ve used the phrase a few times “catchall provision,” as does your brief. And the Scalia-Garner book describes ejusdem generis as how you interpret catchall provisions. So does ejusdem generis apply here or not?

Prelogar responds that ejusdem generis does not apply.

When I finished clerking I thought there was a need for a contemporary book on statutory construction. Were it not for the imperative of making a living, I might have tried to write it. Thirty years later, the Scalia-Garner book cited by Justice Kavanaugh filled the gap in the professional literature. The book is Reading Law: The Interpretation of Legal Texts (2012), by Justice Scalia and Bryan Garner. Professor David Forte reviewed it for the Claremont Review of Books in “Taking Law Seriously.”

The interest of the Fischer case is of course enhanced by the fact that two of the four felony charges formulated by Krazee-Eyez Killa Jack Smith against President Trump arise under the Sarbanes-Oxley provision at issue in Fischer. The Post makes this point in the headline for Marimow’s story: “Supreme Court divided over key charge against Jan. 6 rioters and Trump.”

As I hear the oral argument, Justices Kagan and Sotomayor are in the government’s corner in this case. I think the rest are up for grabs. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh seem to be dubious about the breadth of the government’s argument. I found it difficult to get a take on Justices Barrett and Jackson. Justice Jackson raised questions skeptical of the government’s case, but she may have been satisfied with Prelogar’s answers.

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