Dear Reader,

There is an old lawyers’ adage that bad facts make bad law. There are few facts as bad as the January 6 insurrection and the attempt to undermine the democratic process for choosing a president. Whether those facts make bad law is now a question before the Supreme Court. 

The government has charged more than 1,350 insurrection participants with various crimes. Three hundred and fifty of those people, including a former Pennsylvania police officer named Joseph Fischer, were charged with Obstruction of an Official Proceeding under 18 U.S.C. §1512(c) for their efforts to disrupt Congress as it prepared to certify the votes of the Electoral College and formalize President Joe Biden’s victory in the 2020 presidential election. It is a serious offense that could yield a prison sentence up to 20 years. The question is what the statute means when it refers to obstruction. 

The first part of the law deals with 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.” That section thus makes clear it is about the destruction of physical evidence or items. Fischer and other January 6 defendants were charged under the second section of the statute that follows this one. The second section covers anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do.”