In Fischer v United States, No. 23-5572, 2024 US LEXIS 2880 (Jun 28, 2024), the United States Supreme Court addressed the scope of a provision of the Sarbanes-Oxley Act of 2002 upon which the government had relied to prosecute some of the January 6 defendants. The statute on its face appeared to apply, as it prohibits the corrupt obstructing, influencing, or impeding of any official proceeding. 18 U.S.C. § 1512(c)(2). The Supreme Court, however, interpreted the provision narrowly to preclude its application as the government had alleged, confining its reach to obstruction associated with the integrity and availability of records and rejecting a broad interpretation to cover obstruction unrelated to records. 2024 US LEXIS 2880, at *19.
Section 1512(c) provides as follows:
(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. . . or imprisoned not more than 20 years, or both.
18 U.S.C. § 1512(c).
The question was whether the statute’s second clause prohibiting one from “otherwise obstruct[ing]. . .an official proceeding” was limited in reach by the preceding clause which is confined to records, documents or other objects.
To discern the scope of the “otherwise” clause, Justice Roberts, writing for the majority, turned to fundamental principles of statutory construction, utilizing a canon applicable to associated words, noscitur a sociis, and one applicable to catch-all phrases, ejusdem generis. Noscitur a sociis directs that in construing a group of words, one should avoid ascribing to one word a meaning so broad that it is inconsistent with the surrounding words. 2024 US LEXIS 2880 at *11-12. And under ejusdem generis, a general term at the end of a list is ordinarily controlled by reference to the preceding specific terms. Id. These principles, the Court noted, “track the commonsense intuition that Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it.” Id. To illustrate the point, the Court provided an amusing example:
To see why, consider a straightforward example. A zoo might post a sign that reads, “do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.” If a visitor eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure, has he obeyed the regulation? Surely yes. Although the smell of human food or the sound of voices might well disturb gorillas, the specific examples of impermissible conduct all involve direct interaction with and harassment of the zoo animals. Merely eating or talking is so unlike the examples that the zoo provided that it would be implausible to assume those activities were prohibited, even if literally covered by the language.
Id. at 12-13. “The idea is simply that a general phrase can be given a meaning by the terms linked to it.” Id. at 13.
The Court found, therefore, that the broad “otherwise” clause is limited by the list of criminal violations in the preceding clause—alteration, destruction, mutilation, or concealment of records. Id. at *15. To construe the second clause broadly, the Court reasoned, presented two concerns. It would render the specific examples in the statute meaningless, id. at 15-16, and it would make the many federal statutes applicable to obstruction of justice redundant, id. at 19-20.
Justice Jackson provided an interesting concurrence. Although she agreed with the construction of § 1512(c), she emphasized that all is not lost for the government in these prosecutions. She noted that the “official proceeding” involved, the joint session of Congress, “plainly used certain records, documents, or objects—including, among others, those related to the electoral votes themselves.” Id. at 37. She concluded, therefore, that “it might well be that Fischer’s conduct. . .involved the impairment. . .of the availability or integrity of things used during the January 6 proceeding,” leaving that issue to the trial court to sort out. Id. at 37-38.
Justice Barrett, with whom Justices Kagan and Sotomayor joined, dissented and found that the statute was plain and straightforward. She wrote that the majority’s use of well-established principles of statutory construction was “like using a hammer to pound in a screw—it looks like it might work, but using it botches the job.” Id. at 42-43. The majority engaged in a tortured interpretation, she reasoned, because “it simply cannot believe that Congress meant what it said. Id. at 38.
* * *
Fischer is yet another example of the high court’s reliance on strict textual interpretation, but it also underscores how the application of principles of statutory construction is not always all that clear-cut. The case also appears to be part of a growing trend by the Supreme Cout to limit the reach of federal criminal statutes in the absence of clear Congressional intent. As it noted in Dubin v. United States, 599 U.S. 110 (2023), last term, “After all, ‘[c]rimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.’” Id. at 129-30 (quoting United States v Spears, 729 F.3d 753, 758 (7th Cir. 2013) (en banc) (Easterbrook, CJ)).
While this holding applies to a very narrow class of cases, the lawyers at Willey & Chamberlain make it our job to keep up with changes in the law now matter how broad or narrow because even the narrowest ruing can help defend a federal criminal case. Contact us for help.