The Supreme Court’s decision by a six-to-three margin in Fischer v. United States that the Department of Justice charged January 6 protesters over broadly could upend hundreds of prosecutions — including that of President Trump. 

The case concerns a January 6 rioter and Pennsylvania police officer who is charged with not only crimes of assault, but also with violating laws levied to punish financial fraud, Joseph Fischer. Those have now been vacated, and will be reconsidered by a lower court in the wake of the Supreme Court’s ruling.   

The challenge stemmed from the use of a statute that derived from the Sarbanes-Oxley Act of 2002. That was intended to curb financial crimes and imposes liability on anyone who corruptly “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.”

DOJ lawyers charged more than 300 rioters under the terms of this law, which carries a maximum prison sentence of 20 years. Trump, who was indicted by Special Counsel Jack Smith, faces two charges  sourced to Sarbanes-Oxley. Everyone who was charged under these statutes is also charged with other crimes like assault, trespassing, and, in Trump’s case, deprivation of rights. 

The opinion, written by Chief Justice Roberts, mandates that to charge someone under Sarbanes-Oxley, the government must “establish 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.” 

Merely attempting to block, say, certification of the vote is not enough. Fischer does not contest the multiple counts of assault he faces for his invasion of the Capitol and the confrontations that ensued. He does, though, maintain that he did not impair evidence. The district court agreed, but a riven panel of the United States Circuit Court for the District of Columbia sided with the DOJ.

The high court zeroes in on the word “otherwise” in the statute in question, which follows the list of activities that the law criminalizes. The Chief explains that “a general phrase” — like “otherwise” — can “be given a more focused meaning by the terms linked to it.” Meaning that “otherwise” in this context is related to interfering with documents, not running roughshod around the Capitol or all forms of obstructive conduct.

One of the liberals on the court, Justice Ketanji Brown Jackson, writes, in a concurrence, that “notwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked.” She determines that the conduct engaged in by Fischer — and potentially hundreds of others — is not proscribed by the charges they face, which she notes carry “one of the more severe potential punishments.”

The dissent is penned by a conservative, Justice Amy Coney Barrett, who is joined by two liberals, Justices Elena Kagan and Sonia Sotomayor. Justice Coney Barrett reasons that the “case that Fischer can be tried for ‘obstructing, influencing, or impeding an official proceeding’ seems open and shut.” 

Justice Coney Barrett reckons that the high court “simply cannot believe that Congress meant what it said” and notes that “statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.” It is not the lawmakers’s fault, she reasons, that they did not envision the carnage of January 6.

Courts across America will now have to revisit the cases of all those charged under Sarbanes-Oxley to determine whether those indictments accord with the Supreme Court’s narrowing of the law. That work will also be undertaken by Mr. Smith’s office. The case for trying Trump under these charges, though, could be stronger than that against, say, Fischer, because he did not riot at the Capitol but is alleged to have tried to affect the counting of votes.