Right, wrong ways to prosecute Jan. 6 rioters

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The people who breached the U.S. Capitol on Jan. 6, 2021, are being held accountable, and attempts to rebrand them as patriotic choirboys are a sign of the bizarre political times. Yet is it unduly stretching the law to prosecute Jan. 6 rioters using the Sarbanes-Oxley Act of 2002?

The Supreme Court will consider this Tuesday in Fischer v. U.S., and rooting for the government to lose requires no sympathy for the MAGA mob. Joseph Fischer says in his brief that he arrived late to the Capitol, spent four minutes inside, then "exited," after "the weight of the crowd" pushed him toward a police line, where he was pepper sprayed. The feds tell an uglier tale.

Fischer was a local cop in Pennsylvania. "Take democratic congress to the gallows," he wrote in a text message. "Can't vote if they can't breathe..lol." The government says he "crashed into the police line" after charging it. Fischer was indicted for several crimes, including assaulting a federal officer. If true, perhaps he could benefit from quiet time in a prison library reading the 2020 court rulings dismantling the stolen election fantasy.

Sarbanes-Oxley, though? Congress enacted Sarbox, as it's often called, in the wake of Enron and other corporate scandals. One section makes it a crime to shred or hide documents "corruptly" with an intent to impair their use in a federal court case or a congressional investigation. That provision is followed by catchall language punishing anybody who "otherwise obstructs, influences, or impedes" such a proceeding. Now watch, as jurists with Ivy degrees argue about the meaning of the word "otherwise."

In Fischer's view, the point of this law is to prohibit "evidence spoliation," so the "otherwise" prong merely covers unmentioned examples. The government's position is that the catchall can catch almost anything, "to ensure complete coverage of all forms of corrupt obstruction." The feds won 2-1 at the D.C. Circuit Court of Appeals.

Yet two judges were worried how far this reading would permit prosecutors to go. Judge Justin Walker, who joined the majority, said his vote depended on a tight rule for proving defendants acted "corruptly."

Judge Gregory Katsas filed the vigorous dissent. The government "dubiously reads otherwise to mean 'in a manner different from,' rather than 'in a manner similar to,'" he argued. The obstruction statute "has been on the books for two decades and charged in thousands of cases — yet until the prosecutions arising from the January 6 riot, it was uniformly treated as an evidence-impairment crime."

A win for the feds, Judge Katsas warned, could "supercharge comparatively minor advocacy, lobbying, and protest offenses into 20-year felonies." For example: "A protestor who demonstrates outside a courthouse, hoping to affect jury deliberations, has influenced an official proceeding (or attempted to do so, which carries the same penalty)." Or how about a Congressman (Rep. Jamaal Bowman) who pulls a fire alarm that impedes a House vote?

Special counsel Jack Smith has charged Donald Trump with obstructing a congressional proceeding, and he says Trump's "fraudulent electoral certifications" in 2020 are covered by Sarbox, regardless of what the Supreme Court does in Fischer. The other piece of context is that prosecutors going after Jan. 6 rioters have charged obstruction in hundreds of cases. But if those counts are in jeopardy, don't blame the Supreme Court.

Presumably many of those defendants could be on the hook for disorderly conduct or other crimes, and the feds can throw the book at them. What prosecutors can't do is rewrite the law to create crimes Congress didn't.