Legal Sidebari

Fischer v. United States: Supreme Court to
Consider Federal Obstruction Provision in
Capitol Breach Prosecution
March 20, 2024
On December 13, 2023, the Supreme Court granted certiorari in Fischer v. United States, a case
concerning whether a federal obstruction of justice statute covers a defendant’s alleged participation in the
breach of the Capitol on January 6, 2021. Federal prosecutors allege that Joseph Fischer violated 18
U.S.C. § 1512(c)(2), which authorizes felony penalties for a person who “corruptly ... otherwise obstructs,
influences, or impedes any official proceeding, or attempts to do so.” The federal district court held that
the statute did not apply to Fischer’s conduct. A divided D.C. Circuit panel reversed, holding that
§ 1512(c)(2) “encompasses all forms of obstructive conduct,” including “violent efforts to stop Congress
from certifying the results of the 2020 presidential election.”
At the Supreme Court, the Justices in Fischer will consider whether obstruction for § 1512(c)(2) purposes
includes “acts unrelated to investigations and evidence.” The conclusion could have wide-ranging
implications given that the Department of Justice has charged numerous individuals involved in the
Capitol breach with violating this same provision. The holding may also be relevant to the federal
prosecution of former President Trump, who was indicted for conspiring to violate § 1512(c)(2), among
other statutes (as discussed in another CRS product). This Sidebar provides legal background on
§ 1512(c)(2) and the D.C. Circuit’s opinion in Fischer, as well as arguments before the Supreme Court.
Overview of 18 U.S.C. § 1512(c)(2)
Several of 18 U.S.C. § 1512’s subsections are directed at evidence or witness tampering involving, among
other things, actual or threatened force, deception, or harassment to prevent evidence production.
Congress added § 1512(c) to the statute—including § 1512(c)(2)’s provision regarding otherwise
obstructing official proceedings—as part of the Sarbanes-Oxley Act of 2002. That law was “prompted by
the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor,
Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.”
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Obstructive Acts
To prove a § 1512(c)(2) violation, prosecutors must establish that a defendant engaged in one of the
proscribed acts—that is, that he or she obstructed, influenced, impeded, or attempted one of these acts.
Courts have held that a variety of acts may qualify. For example, federal prosecutors have used
§ 1512(c)(2) to charge individuals based on conduct such as falsifying evidence to influence a federal
grand jury investigation, soliciting a fabricated confession from another to escape pending federal theft
charges, tipping off the target of a grand jury proceeding about an undercover operation, and setting an
apartment ablaze to destroy two deceased human bodies that were evidence of a double murder.
As indicated above, the Department of Justice has also charged numerous individuals under § 1512(c)(2)
for obstructive acts pertaining to the Capitol breach. Fischer is one such case. There, the alleged
obstructive acts include “encourag[ing] rioters to ‘charge’ and ‘hold the line,’” pushing police, and “a
‘physical encounter’ with at least one law enforcement officer.” Disagreeing with several other federal
district court judges in the District of Columbia that had examined the scope of § 1512(c)(2), a federal
judge in the Fischer case dismissed the § 1512(c)(2) charge against the defendant. The judge relied on a
prior decision in a separate Capitol breach case in which the judge had concluded that § 1512(c)(2)
“requires that the defendant have taken some action with respect to a document, record, or other object in
order to corruptly obstruct, impede or influence an official proceeding.”
On appeal, a divided D.C. Circuit disagreed with the district court in Fischer and rejected the argument
that § 1512(c)(2) reaches only obstructive conduct related to evidence impairment. Judge Pan, who
authored the lead opinion in the case, emphasized § 1512(c)(2)’s relationship to § 1512(c)(1)—another
subsection of the same statute that focuses specifically on certain alteration, destruction, mutilation, or
concealment of documents or other objects “with the intent to impair [their] integrity or availability for
use in an official proceeding.” Judge Pan determined that § 1512(c)(2)’s use of the word “otherwise”
before its list of prohibited acts means that it “applies to all forms of corrupt obstruction of an official
proceeding, other than the conduct that is already covered by § 1512(c)(1).” Judge Walker concurred in
this interpretation of § 1512(c)(2)’s act element. Judge Katsas dissented. Among other things, he
contended that the lead opinion “dubiously reads otherwise to mean ‘in a manner different from,’ rather
than ‘in a manner similar to.’” According to Judge Katsas, this interpretation of § 1512(c)(2) is
irreconcilable with “the structure and history of section 1512, and with decades of precedent applying
section 1512(c) only to acts that affect the integrity or availability of evidence.”
Official Proceeding
Under § 1512(c)(2), federal prosecutors must also establish that a prohibited obstructive act was related to
an “official proceeding.” A separate statute defines an “official proceeding” to include, among other
things, a proceeding before federal judges, federal courts, or a federal grand jury; “a proceeding before a
Federal Government agency which is authorized by law;” and a “proceeding before the Congress.” A
number of federal courts have construed this definition to require some level of formality beyond that of a
“mere investigation.” With respect to proceedings before Congress, one federal district court concluded
that the Electoral College certification of the results of a presidential election is an official proceeding
under § 1512(c)(2), reasoning that “a joint session of both houses of Congress that is called for by the
Constitution itself, and over which the Vice President of the United States is required to preside,” is
sufficiently formal to qualify. In Fischer, the D.C. Circuit reached the same conclusion, with all three
judges on the panel agreeing that the Electoral College certification is an official proceeding for
§ 1512(c)(2) purposes.

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Acting Corruptly
Section 1512(c)(2) additionally requires proof that the defendant acted “corruptly.” Constructions of this
requirement vary somewhat. According to one federal appellate court, “[a]cting ‘corruptly’ within the
meaning of § 1512(c)(2) means acting ‘with an improper purpose and to engage in conduct knowingly
and dishonestly with the specific intent to subvert, impede or obstruct the [proceeding].’” Another court
has described acting corruptly as acting with “consciousness of wrongdoing.”
The D.C. Circuit splintered over the appropriate construction of “corruptly” in Fischer. Judge Pan’s lead
opinion declined to adopt “any particular definition of ‘corruptly’” but considered “three candidates:”
1. wrongful, immoral, depraved, or evil;
2. with corrupt purpose; and
3. “voluntarily and intentionally to bring about either an unlawful result or a lawful result by
some unlawful method, with a hope or expectation of either financial gain or other
benefit to oneself or a benefit of another person.”
According to Judge Pan, “[u]nder all those formulations, ‘corrupt’ intent exists at least when an
obstructive action is independently unlawful,” and the third definition requires an additional element of
hope or expectation of personal benefit to oneself or another. Judge Pan concluded that the alleged
conduct in Fischer—“assaulting law enforcement officers while participating in the Capitol riot” with the
intent of “helping their preferred candidate overturn the election results”—would satisfy any of the three
definitions. In his concurring opinion, Judge Walker disagreed with Judge Pan’s decision not to define
“corruptly,” because the combination of “a broad act element and an even broader mental state” would
leave § 1512(c)(2) with a “‘breathtaking’ scope.” Judge Walker would have “give[n] ‘corruptly’ its long-
standing meaning” of “an intent to procure an unlawful benefit either for himself or for some other
person.” In dissent, Judge Katsas disputed the various formulations of “corruptly” articulated in the lead
and concurring opinions, calling the term a “broad and vague adverb” without “meaningful limits” and
arguing that Congress intended to cabin the statute through a narrow interpretation of the “obstruct[],
influence[], or impede[]” element. For Judge Katsas, relying only on “corruptly” to narrow the reach of
§ 1512(c)(2) would not be enough to keep the provision from sweeping in constitutionally protected
activities such as lobbying or peaceful protest, which he warned could result in First Amendment
overbreadth issues. Judge Katsas also expressed concern that the “corruptly” requirement does not
successfully narrow the scope of § 1512(c)(2) to avoid constitutional vagueness problems, which occur
when a criminal law lacks “sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
Following Fischer, the D.C. Circuit revisited the definition of “corrupt” intent in another Capitol breach
case, holding that “the ordinary meaning of the word ‘corruptly’ in 18 U.S.C. § 1512(c)(2) encompasses
acting through independently unlawful means.” The court in that case, United States v. Robertson,
deemed sufficient the evidence establishing that the defendant met this requirement by acting “feloniously
to obstruct a proceeding before the Congress, with no evidence or argument that he was merely engaged
in peaceful expression . . . .” One judge on the panel in Robertson dissented, arguing that the Robertson
majority was bound by Judge Walker’s construction of “corruptly” in Fischer because that definition
“was necessary to create a holding.” The dissenting judge also expressed concern that the Robertson
majority’s formulation of “corruptly” as “having an ‘unlawful’ purpose or acting through ‘unlawful’
means” would make “the commission of any crime ‘corrupt’ because any crime requires the use of
unlawful means or an unlawful purpose or both.”

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Nexus Requirement
Although it is unaddressed in Fischer, several federal courts have concluded that § 1512(c)(2) also
contains a nexus requirement. As one federal district court described it, the nexus requirement means that
the charged conduct must have the “‘natural and probable effect of interfering with’ an official
proceeding” and requires that the accused must know that his actions would likely affect “a particular
proceeding.” The nexus requirement serves to “reinforce the principles of deference to Congress and fair
notice to the accused.” For at least one federal appellate court, the nexus requirement may be less a
distinct element of § 1512(c)(2) and more “an articulation of the proof of wrongful intent that will satisfy
the mens rea requirement of ‘corruptly’ obstructing.”
Arguments at the Supreme Court
Before the Supreme Court, Fischer argues that the D.C. Circuit misconstrued § 1512(c)(2). Among other
things, Fischer contends that with respect to the obstructive acts covered by the provision, the “text targets
discrete acts intended to affect the availability or integrity of evidence for use in an official proceeding.”
According to Fischer, the use of the word “otherwise” before § 1512(c)(2)’s list of prohibited acts is best
understood as limiting the covered obstructive acts to those similar to the ones listed in § 1512(c)(1)—
that is, “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object.”
Further, Fischer claims that construing “otherwise” as the D.C. Circuit did in his case converts
§ 1512(c)(2) into an “all-encompassing separate offense” that would render § 1512(c)(1) and other federal
obstruction provisions redundant. According to Fischer, both the legislative history of § 1512(c)(2) and
the types of cases in which the statute has been used support the conclusion that the provision “has never
been anything other than an evidence impairment statute that focuses on spoliation.” Echoing Judge
Katsas’s dissent, Fischer also disputes that the requirement that a defendant acts “corruptly” can alone
sufficiently cabin § 1512(c)(2) to avoid overbreadth issues.
In contrast, the government argues that the “text, context, and history of [§ 1512(c)(2)] establish that it
functions as a catchall offense designed to ensure complete coverage of all forms of corrupt obstruction of
an official proceeding.” According to the government, the scope of § 1512(c)(2) stems from the phrase
“obstructs, influences, or impedes,” which “encompasses myriad ways of hindering a proceeding”; and
the word “otherwise,” which means “in a different manner.” Taking those phrases in conjunction, the
government asserts that § 1512(c)(2) “reaches methods of obstructing a proceeding that are different
from—not simply the same as—the evidence tampering that Section 1512(c)(1) covers.” In addition, the
government avers that if § 1512(c)(2) reached only “evidence-focused obstruction,” it would render
§ 1512(c)(1) duplicative and meaningless. To the extent that the government’s interpretation of
§ 1512(c)(2) creates overlap with other obstruction provisions, the government contends that overlap is
common in criminal statutes and is actually an intended feature of catchall provisions like § 1512(c)(2)
that are designed to capture “matters not specifically contemplated—known unknowns.” With respect to
legislative history, the government claims that Congress “enacted 18 U.S.C. 1512(c)(2) to address the
larger problem the Enron scandal brought to light—namely, the risk that corrupt obstruction could occur
in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.” The
government also pushes back on Fischer’s overbreadth concerns, pointing to § 1512(c)(2)’s nexus and
mental state requirements, among other things.
Oral arguments in Fischer are scheduled for April 16, 2024. A decision in Fischer is expected before the
Court’s summer recess. If the Court interprets the scope of § 1512(c)(2) in a manner contrary to
Congress’s intent, Congress could respond to clarify the statute’s reach.

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Author Information

Peter G. Berris

Legislative Attorney




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