Courthouse Steps Decision: Fischer v. United States

Chayila Kleist: Hello and welcome to this FedSoc Forum webinar call. Today, July 3rd, 2024, we're delighted to host a Courthouse Steps decision program on Fischer v. United States, which was decided last Friday by the court. My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program as the Federalist Society takes no position on particular legal or public policy issues. In the interest of time, I'll keep my introduction of our guest day brief, but if you'd like to know more, you can access his impressive full bio at fedsoc.org. Today, we are fortunate to have Ted Cooperstein, who currently serves as an appellate attorney in the boutique law firm of Theodore Cooperstein, PLLC, focusing on criminal and civil appeals in both state and federal court. He's a former career prosecutor with 25 years of service at the US Department of Justice.

While there, Mr. Cooperstein served as Assistant United States Attorney for the Southern District of Florida and for the Southern District of Mississippi. Before joining the Southern District of Florida, Mr. Stein served as special assistant US attorney at the US Attorney's Office for the District of Maryland. He also previously served as Counsel to the Deputy Attorney General at DOJ and as Assistant General Counsel at the FBI's Office of the General Counsel. Additionally, he formerly served as a military intelligence officer in the Army Reserves From 1989 to 2011, retiring with the rank of Lieutenant Colonel. During the Trump administration, he was appointed and served as General Counsel of the US Office of Personnel Management, and I'll leave it there. One last note and then I'll hand it over for a set of opening remarks. If you have any questions throughout the program, please submit those via the Q&A feature as we'll have an extended portion of today's webinar where we can address those. With that, however, I can hand it off. Mr. Cooperstein, the floor is yours.

Theodore Cooperstein: Thank you, Chayila. Good afternoon everyone on the East Coast, and good morning to everybody else. As you no doubt heard, the Fischer v. United States case was an appeal arising out of the events of January 6th, 2021 in Washington DC at the Capitol. The focus, however, is a longstanding criminal statute, 18 USC, Section 1512 C, Parts 1 and 2, specifically Part C 2. The statute is in the chapter that has to do with administration of justice crimes or specifically 'obstruction of justice' is the shorthand term for this particular statute. The case arises from the events of January 6th and Mr. Joseph Fischer was one of the many people who came to Washington DC to attend the rallies and protest and found himself on the grounds of the US Capitol. Mr. Fischer, if I recall correctly in his instance, had actually come down to the rally, left the District of Columbia, got word from the news of what was happening at the Capitol, went back, arrived at the Capitol grounds after the perimeter was breached and crowds had entered the building and followed in after them, walked around, and left.

He was charged like many of the defendants with multiple counts, some misdemeanors such as trespass and entering a prohibited area, but in the particular statute we're talking about 1512 C is in fact a felony with a maximum felony penalty of 20 years. The issue arose when Mr. Fischer, like many other of the January 6th defendants, specifically moved to dismiss the count of his indictment that charged him under this particular statute. The argument was that this particular statute was not designed and did not encompass the particular conduct that he had committed and could not be stretched so far as to deal with the riot - the altercation and the violent encounters with Capitol Police and other law enforcement that day on the Capitol Hill grounds. This is why there were multiple counts of indictment on most of these defendants. They were often charged with assault on federal officers or other violent crimes, but the consistent theme or thread we see through many hundreds of those who were indicted for the January 6th event was to throw in this 1512 C count as a particularly potent felony charge, as I said, has a potential maximum of a 20-year sentence.

Now the argument, the motion to dismiss the claim, said that basically, this statute does not cover the type of conduct that happened. Specifically, 18 USC 1512 C 2 makes criminal "anyone who corruptly destroys, alters, mutilates or conceals a record, document, or other object or attempts to do so with intent to impair the object's integrity or availability for use in an official proceeding." The specific part, Subpart Two, is what was charged against Mr. Fisher and his co-defendants. Part Two is, "otherwise obstructs, influences, or impedes any official proceeding or attempts to do so."

So basically the dispute boils down to what does that "otherwise" mean? When the "otherwise" follows the specific list of enumerated actions in subpart one, is it limited by that specific list in part one when we get to the "otherwise" in part two, or is it intended to go more expansively beyond the list in part one? The defense counsel for Mr. Fischer as well as the others who made similar motions argued that under the statutes - the canons of statutory construction and traditional textual analysis of a statute, the principles should have led to a narrowing of Subpart Two and therefore it would've been limited as the context of the statute would also suggest to judicial and evidentiary proceedings, impairment of evidence or halting investigations, grand jury proceedings or courtroom trials.

Many defendants in the District of Columbia District Court made this or similar motions, all but one district court judge dismissed and denied the motion. The one who took it seriously and evaluated it under the statutory canons of construction was District Judge Carl Nichols. Three people, three defendants in particular, had drawn Judge Nichols as their district court judge, one of them being Joseph Fischer, the other two named Lang and Miller. Judge Nichols issued a written opinion analyzing the structure and the text of 1512 C and going through all the statutory canons of construction. He reached a conclusion that indeed this statute really could not cover the facts as alleged in the indictment and the type of conduct that Mr. Fischer was charged with or admitted to, because it was not really a focus of his to impair the availability of evidence or witness testimony or something of that nature. And this in part was because of the nature, the history and the origin of the statute of 1512 C. 1512 C was part of the Sarbanes-Oxley statute enacted around 2002 if I recall. It was a direct consequence of what some of us are old enough to remember as the Enron scandal.

Enron was a large Texas-based energy company that was caught cooking its books and falsifying much of its accounting records, which led to the collapse of the corporation, as well at the time the salient feature was that it really had bankrupted the employee pension fund because it had all been invested in stock of the company itself. As a result of that collapse in the big corporate scandal, what was a "white collar incident", there was a task force on corporate fraud in the Department of Justice that had led to charges against the Enron executives as well as against the major accounting firm of Arthur Anderson. Arthur Anderson had been responsible for doing audits of the Enron books and they were blamed for being complicit in the concealment of the cooked books, and part of the investigation and the charges against Arthur Anderson were that they had destroyed the documents that would've shown the falsity or the cooking of the books and the accounting records.

Arthur Anderson, their defense was that this was just a routine document management process and that they destroyed these things after a certain time in all matters. The case actually went all the way to the US Supreme Court with a nine-zero unanimous ruling in favor of Arthur Anderson, but it was too late because Arthur Anderson had already been forced into bankruptcy. But in the course of that prosecution and that white-collar crime scandal of corporate fraud at Enron, it was discovered that the then-existing obstruction of justice statute criminalized inducing or making somebody else destroy documents but did not actually cover somebody who destroyed them himself. So the two Congressmen, Sarbanes and Oxley drafted legislation that - in addition to other provisions - modified or amended Section 1512 to say that anybody who does this type of destructive and evidentiary impairment - "alters distorts mutilates or conceals a record document or other object or attempts to do so or otherwise" as a catch-all provision with the idea to make sure that nobody would escape liability if they had intentionally been involved in obscuring or trying to hide corporate malfeasance.

So that was the case for 20 years and we know that many federal prosecutors have made good use of these statutes in the course of protecting the integrity of federal criminal prosecutions when somebody had been caught trying to destroy or withhold, alter or falsify evidence that was known or could become later essential to an criminal investigation or a federal trial that was what was covered by the statute. The statute could also cover say acts like witness tampering, extortion, intimidation of a witness seeking to impair the arrival or attendance of a witness at a hearing, and so forth. There was also an organic conspiracy section at 1512 K, which made it a crime equally punishable after 20 years to conspire to commit any of those acts in 1512. So that was the status of that statute and what was unique and novel was following the January 6th episode, the Department of Justice started to apply this statute to all manner of behavior and conduct from people who had attended or were involved in the January 6th altercations and the riots or just the trespasses within the Capitol building.

The theory is that by being there and adding to the unruliness or the size of the mob, it contributed to the decision and necessity for suspending the joint session of Congress and delaying the proceedings that had been convened for tallying the electoral college vote that day. So that was considered to be the "official proceeding" that was made the subject of this statute and therefore anything people did that could be viewed as contributing to the impairment, delay, or obstruction of that proceeding as it was scheduled to occur on January 6th could be charged under the statute in the view of the Department of Justice. This was the theory behind this, the multiple indictments at the time of the appeal and the petition for cert in this case, I believe there were about anywhere - depending on whether you looked at what was on the clerk's record or what the Department of Justice press releases said, anywhere between 300 and 350 indictments pending, although I believe the Department of Justice may elsewhere have also claimed to have used the statute in over a thousand indictments of people related to January 6th.

So it was a widespread use of this 20-year maximum felony in many cases arguably overused or stretched beyond its intended focus. That was the argument of the defendants Lang, Miller, and Fischer. After Judge Nichols had granted their motion to dismiss that count - and you should note and recall there were multiple other counts against all of these defendants to which they either pled guilty or were found guilty, but this particular appeal and litigation was focused just on the count involving the 20-year maximum felony of 1512 C 2. Because that was a motion to dismiss, the Department of Justice sought and received from the solicitor general permission to appeal the dismissal of that count of 1512 C 2 and it went to the DC Circuit Court of Appeals.

Now the Circuit - US Court of Appeals there in the normal three-judge panel reviewed and consolidated these three defendants who happened to have drawn Judge Nichols and therefore benefited from his decision so they were consolidated in one opinion that was heard by and decided by a panel that consisted of Judges Pan, Walker, and Katsas and the resulting decision of that three-judge panel in the DC Circuit was a widely diverging three opinions. Judge Pan wrote an opinion that was denominated the majority opinion, although it's arguable. She said basically that, well, anything that happened to be otherwise criminal that occurred near a proceeding and therefore could be interpreted as affecting that proceeding was fair game. Judge Walker wrote what has been denominated a concurrence and he agreed with the outcome of reversing the dismissal of the count and upholding the application of 1512, but he focused and hung his opinion on the definition of the word corruptly and he felt in this specific instance of the January 6th events, the definition of the word "corruptly" which went to the mens rea or criminal intent was met by the desire of the protestors to affect or change the outcome of the electoral college in favor of Donald Trump so that he felt that that was intending to obtain an unlawful benefit for someone, not for themselves necessarily, but for President Trump, and he felt that was sufficient to sustain the application of 1512 C 2.

The third opinion by Judge Katsas has been denominated a dissent and Judge Katsas pretty much followed the same approach of District Judge Nichols by applying the canons of statutory construction. analyzing the text, through the position, context, and history of the text of the statute deeming it essentially to be narrowly limited to the context of evidentiary impairment or attending the intangible or intangible evidence or witness testimony for an administrative proceeding or judicial proceeding, something of that sort. He focused on the word "otherwise" and determined that it should have been construed to be limited by the specific list of items in Subpart One and therefore was not so expansive as to swallow all at once other parts of 1512 beyond 1512 C. There was also the implication in his dissent that this could lead to the criminalization of lobbying or other protests that weren't violent or any other public attendance at the Capitol or hearings by the Congress or Congressional committees where people arrive with the express intent of hoping to influence or otherwise affect the outcome of a proceeding.

Now these are presumably permissible attempts, but the broad interpretation expansion of the statute could be used to criminalize unpopular political lobbying or political protest absent any altercation or rioting. So those are the three opinions that came from the panel. I should add, and perhaps I should have stated this at the beginning and I apologize for that. Part of my knowledge comes from being involved in this case and I filed an amicus brief for three other January 6th defendants who were also charged by the government with 6 Section 1512 C 2. At the time we filed, they had not yet been tried, but they clearly would be affected by the outcome and have been affected - will be affected by the outcome of this case. So we filed an amicus brief to add our views to those of Mr. Fischer both at the cert stage and at the merit stage.

And with that in mind, we noted the three divergent opinions, I say they're divergent because they essentially were not reconcilable. No, two of the three judges on the panel, if you read their opinions, truly agreed as to the two basic essential elements of any crime: the mens rea or the criminal intent necessary or what actual conduct is intended to be covered by the statute. So because it was unclear the initial defendants, both Fischer as well as Lang and Miller had initially moved for rehearing by the panel, asking them to clarify their opinion and say which of these three is really the two opinions that you're putting through or should we just view it as nobody agreed so there's no majority of the three-judge panel and therefore the district court opinion should stand? The DC Circuit panel denied that. So we were left with taking it to the Supreme Court of the United States.

So that was how we got to where we are today in that we had a case pending before the Supreme Court. There was an argument before the Supreme Court, I believe it was in April, and the sides essentially took those views and focused on what was the proper interpretation of the word "otherwise", how expansive could we be, and could this really be applied to this conduct and also what were the implications of the un unforeseen or unintended consequences if the court should rule either way in not only the remaining January 6th cases such as my clients or beyond January 6th to just the normal routine operation of the federal court system across the 94 districts where this statute has and will continue presumably to be used for judicial administrative crimes. Again, the perjury, witness tampering, subordination perjury, or alteration and falsification. For instance, more common uses of this statute that I can attest to are indicting relatives of a murder defendant who happened to find where the key witness was staying in a hotel and implicating her to withhold or not testify, that type of intimidation.

Another type would've been falsifying time and attendance and hourly records of a police force, individual police members who were basically padding their time records to get paid for work they did not do. When that is actually federally funded, that becomes a federal embezzlement type crime, but it also can be charged under 1512 for falsifying or altering documents that could prove essential to either an audit by the funding government agency or an actual criminal prosecution investigation. So these are the type of evidentiary impairment proceedings that have been in the past charged under 1512 and necessarily will be and the outcome of the Supreme Court's decision would've affected that. So we have the decision from the court last week and it was a six-three decision, which is not in itself a surprise in terms of the numbers. It's a sort of standard breakdown of the current court, but was just slightly surprising in that there was a switch of one of the members on each side.

The opinion was written by Chief Justice Roberts who fairly predictably and credibly took the detached scholarly approach that was similar to essentially the opinions of Judge Katsas at the DC circuit and Judge Nichols at the district court, again taking the textual statutory canon construction approach, analyzing the setting of the word "otherwise" the necessary import of the specific list of prohibited acts in Subsection One and if and how that would cabin and constrain what is to be considered part of the otherwise. In subsection two. They took the more traditional narrowing approach, I should say what was actually in Judge Katsas's opinion and discussed in some of the briefs but not in the opinion was also the - so I'd say it was hovering in the background, shall we say - was the traditional concept of rule of lenity. The idea Judge Katsas specified that when you reach a naughty problem of statutory construction and you're dealing with a criminal statute and significant penalty, if you ever are in doubt and you really can't resolve which way to go, well the benefit of the doubt should go to the defendant, that's the rule of lenity.

It's easy to send it back to Congress to say, "Hey, clear this up and specify did you mean to criminalize this?" Conversely, by the separation of powers arguments, it's also not the province of the judges or the judiciary to be writing the law. So to the extent that they might have to fill a gap or extend an otherwise ambiguous portion of the law, it's best for them to leave that undone rather than to stray out of their lane and be doing something that Congress should be doing. A similar argument could be made for the prosecution and the executive branch, if they so adamantly argue for this expansion of the statute beyond what otherwise is indicated by the text, they're essentially aggregating themselves into the role of the Congress and the legislature to create a new statute or extend it beyond its intended application. So these were all arguments that were made at the various levels of the court even if they did not appear in Chief Justice Roberts' opinion.

So Chief Justice Roberts reversed the DC circuit and said that the "otherwise" in Section Two was limited by the specific terms preceding it specifically for those of you Latin fans, the canons or those of "noscitur a sociis" and "ejusdem generis", which is that you'll know the meaning of a word by those it's associated with or surrounded with and also if you're listing certain things specifically then the generic idea should be of the grouping, the common denominator of those listings and not to go beyond expanding the realm of what you're affecting. They also considered the potential implications of ruling otherwise, that it would expansively swallow Part One to expand Part Two to include anything not listed in Part One of any type as opposed to those are specifically analogous to part one and if it were so broad as I would say Judge Pan's opinion, a majority opinion in the DC Circuit panel seemed to imply it really would have swallowed up much of the other specific statutes or provisions in Section 1512 or indeed the whole chapter on judicial administrative crimes and process crimes.

Chief Judge Roberts went on to say this was a problem because "A broad reading of subsection C 2 would criminalize a broad swath of prosaic conduct including a peaceful protestor" and noted that even the Solicitor General at argument - oral argument - had conceded that. "Although the government's all-encompassing interpretation may be literally permissible...", the Chief Justice wrote, "..it defies the most plausible understanding", so therefore the case by the order of the court and the majority opinion was remanded to the lower courts to evaluate the sufficiency of Mr. Fischer's indictment in light of that opinion. I should add that in the final order session this week of the Supreme Court, the other two petitioners Lang and Miller, their petitions have been held in limbo pending decision of this case and they were granted, vacated, and remanded for the same consideration of the results in the Fischer opinion.

There's an interesting - as I said, the lineup was slightly different from the normally anticipated six-three division of the justices and that was that one of the six was the most recently appointed Justice Jackson, who perhaps contrary to a common expectation concurred in the majority opinion. I personally attribute, well I welcome her joining the opinion I attribute it perhaps to her background of the history that she had served as a federal public defender and was therefore able to view this in the longer view, if you will, of how does this affect future defendants outside the January 6th context and the administration of justice. But she made sure in the opening part of her concurring opinion to specify that she in no way was meaning to condone the events of January 6th of course or any such thing, but was taking a broader view of just how does a statute that's been around for 20 years and been applied successfully, how should it be applied and how can we make sure that it's continued to be used as Congress intended.

So the flip side of Justice Jackson joining the majority of the opinion was that there was a defection from the normal conservative group and that was Justice Barrett who wrote the dissent joined by Justices Sotomayor and Kagan. She seemed to be a little bit more focused on the factual nature of the January 6th event and not the longer view of what the statute in the abstract was meant to do and how it should operate. She basically took the opposite view of the statutory construction, thought that "otherwise" should be perfectly understood to encompass just anything and everything that might affect the proceeding and it would be perfectly fine to apply the statute as the Department of Justice had been doing, and she felt that the court's majority opinion would be creating unnecessary superfluidity and it could not be reconciled. She felt that Section C 1 should not be cabining section C 2.

She felt that the majority opinion therefore was exaggerating what the outcome might be of the alternate or opposite interpretation that she advocated. So that summarizes for you the opinion as a whole. Now the immediate implications are of course that the indictment for Mr. Fischer - and as I said for Lang and Miller, they'll both be returned and remanded down first to the DC Circuit for evaluation in light of the opinion and then ultimately to Judge Nichols in the district court to determine whether or not the indictments on these three defendants as written and alleged still suffice to fit within the constrained contours of 1512 C 2 as specified or illuminated by the majority opinion of the court.

Anecdotally, so far I've been hearing from some of the defense attorneys in the January 6th cases that the Department of Justice and the US Attorney's office in DC have not yet thrown in the towel. They're still seeking additional time in the multiple cases that are ongoing to evaluate and see how they might be able to argue or if needs be, I think they may try to supersede in some cases to try to stretch or recharacterize the factual allegations to fit the new description of how 1512 C 2 should work in Chief Justice Roberts' opinion. We'll have to see if they're successful at that and how far that goes. The other maybe obvious maybe not, but other immediate implication to current events is that many will point out that section 1512 C 2 together with the "organic conspiracy" provision of 1512 K comprised two of the four or half of the counts in the pending District of Columbia indictment against President Trump.

He's alleged in that indictment to have participated in January 6th under 1512 C 2 in the same manner and under 1512 K he's alleged to have conspired with others to help ferment or facilitate the violations of 1512 C 2. So Special Counsel Jack Smith and his team are going to face the same problem of going back to square one, looking at their indictments, seeing if they can argue that they still fit within the new definition of 1512 C 2 or if they need to supersede or dismiss the count and we'll have to see what happens with that. Again, it's going to take some time and have to percolate through the courts and as I said, they're not only looking to see a 1512 C 2 can still be viable under the new definition or description from this opinion, but necessarily 1512 K, the conspiracy provision will be dependent on that because the conspiracy is just an alleged unlawful agreement to commit the violation so they have to properly charge the substantive violation in order to support and sustain the conspiracy count. So with that, Chayila, I think that pretty much ends my summary. I'm not sure what next would be of interest to the audience, but I'm happy to deal with the questions and answers now.

Chayila Kleist: Thank you. Thank you. Really appreciate that background and the breakdown of the decision as well as of the other opinions. It's much appreciated. We are moving to our time of Q&A, so to our audience, if you have questions, please do submit those via the Q&A feature. We already have one from an audience member who asks whether it would've been useful to have the majority opinions spend more time on why one could not rely on the plain meaning analysis of the "otherwise" language. From their reading, it seems like the opinions skip straight to the canons of interpretation with "noscitur a sociis" and "ejusdem generis", et cetera.

Theodore Cooperstein: That's a good question. I think normally a judge or a judicial panel that's looking at any text is going to start with the plain meaning. I mean we all do that. Just looking at words, well, what does this mean to us on first blush, the problem I think is that you can't stop there because it's evident when there's so much disagreement with dissenting opinions. Remember of course I said Judge Nichols was the only judge and only district judge to rule this way on the argument. There were 14 other district judges I'm told who considered almost identical motions to dismiss 1512 C 2 and all went the other way. And then of course we had the divergent three opinions of the DC Circuit panel. So that shows that there clearly wasn't widespread broad agreement as to the plain meeting, which is why you then had to go to some other tools in the statutory interpretation toolbox to try to say, "Well, what can we say this means if nobody agrees on what the plane meaning at first blush is?"

Chayila Kleist: Got it. Thank you. So you touched on this a little bit in your summary of the decision and opinions, but I'd love it if you could give a little more commentary on whether or not there have been parallel statutes interpreted by the court. I ask particularly because Justice Barrett argues in her dissent that the court reasons from unlike principles.

Theodore Cooperstein: Well, yes, if you recall, the history of 1512 C 2 did derive from a white collar criminal scandal, the Enron corporate fraud crisis, and this chapter and many of these judicial administration statutes frequently are found in the context of white collar crime, corporate crime, and we've seen in past Supreme Court opinions for the last oh, 10, 20 years, I'd say not only the Arthur Anderson opinion as I mentioned, but also the United States v. Yates opinion was also a section 1512 I believe, if not a close correlative to 1512 and other statutes in the white collar, I believe I forget the name, but there was the one about the bridges between New Jersey and New York where there were some staff members of then Governor Christie's administration who were indicted for manipulating the closure of lanes to affect a political outcome that was brought as a white collar crime, not necessarily in 1512, but there were also the public service fraud, I forget the exact term, section 1346 in Title 18, which is adjacent to the wire fraud, bank fraud, and mail fraud type statutes with the typical vehicles for white collar crime prosecutions.

And the 1346 was broadly overused to go after politicians who were held to have denied the public of their - honest services fraud is the phrase I was looking for, and that's what's in the statute. And so there were a number of cases dealing with dismissing or reversing convictions. Another principle one that comes to mind was the opinion of McDonnell, I believe, the former governor of Virginia who was indicted and convicted for receiving or giving favors in return for certain contributions or favors, and the court had, again, I think it might've been unanimous, but I know it would overwhelmingly rejected that use of the honest services fraud statute. So those were all similar contexts in which the court approached the white collar criminal statute with those same statutes. I'm sorry, I keep confusing canons of statutory construction, but it was the same approach again, that we're not going to give the benefit of the doubt to the government prosecutor. We're going to look very strictly at these texts. We'll apply the rule of lenity or we'll apply all these canons of construction to make sure that we're being very precise and not sloppy about indicting people or needlessly convicting them when it isn't exactly clear where and how the law applies. So there is a prior history, if you will, and precedent, a thread of cases of applying the same type of approach to similar white collar administrative crimes.

Chayila Kleist: Got it. Thanks. Next question. Justice Jackson's concurrence heavily focused on the congressional intent behind 1512 C 2 and both the majority and the dissent discussed whether or not the situation question was specifically considered by Congress or intended to be covered by Congress when it passed the same section. To what degree does this decision define alter or elucidate how congressional intent may or may not constrain the scope of statute efficacy, and does it seem to limit how statutes can be built to account preemptively for what Justice Barrett called "known unknowns"?

Theodore Cooperstein: Well, I think this is another instance of the longstanding competing views, if you will, on the value or the use of legislative history. The late Justice Scalia was famous for adamantly rejecting anything beyond or behind the text of the statute feeling that legislative history, particularly committee prints and reports or statements made on the floor were notoriously unreliable in his view to say exactly what the majority of those voting or enacting the statute truly intended and that the best indication, if not the only indication was to just look at and analyze the text itself. Justice Scalia's view was a break with the longstanding views of many jurists before him who happily used legislative history and context and so forth, and you still see it recurring in the approaches and opinions of justices like Justice Jackson or others since then who are not necessarily in this Scalia camp, but might as we see here, reach the same conclusion albeit with different supporting backgrounds. And so to the extent that they are concurring or coordinating, reinforcing, it's essentially reaching the same result by two different paths. I don't know that we've resolved that dispute. It's sort of an existential difference of outlook between how different judges might approach their job. Some will look at it strictly formalistically or textually and others will try to be more broadly contextual.

Chayila Kleist: Got it. Continuing on that, given how this decision came out and particularly given the interesting six-three split and who ended up on what side might this change the way that statutes are structured in the future, does it look like there could be an impact on the way Congress writes laws?

Theodore Cooperstein: Well, that's tough to say. That stems to some of the same problems as we just mentioned with just looking at legislative history. Sometimes you just really don't want to know how the sausage is made or you can't figure it out. How will the Congress approach it? Well, these days, this is my personal opinion, they don't often seem to be in a rush to go correct things so they're not often passing statutes or amending, it takes a major crisis like the Enron corporate fraud scandal for them to do what they did in 1512 C and that was 20 years ago. I'm not sure how often since then they've gone back to correct statutes even though the Supreme Court will prompt them from time to time and say, "This is not our job, it's your job. You better go fix this.", it happens sometimes, and whether it will affect how they go about it, I'm not quite sure. We hope that they would be attentive to the words they use and those drafting, hopefully there are legislative attorneys on staff who are helping to apply these statutes, apply these opinions in formulating the statutes. So I guess it's one of those remains to be seen and I can't quite predict.

Chayila Kleist: Got it. Audience question. They ask, does the majority and dissent differ on the standard for statutory construction or only in the application of the same?

Theodore Cooperstein: That is a good question because they seem to emphasize the two divergent approaches. The majority does arrive at it by emphasizing the principles and the process of statutory construction. The dissent seems to be more influenced and more concerned about the particular incident and instance of its arising. I don't want to be too cynical, but it may very well be that in the future, either side of a particular dispute may be borrowing from either of these approaches depending on what they see more conducive to making their argument. I think because it's a six-three opinion with some participation from one of the justices who's considered to be more on the progressive left, we have a greater likelihood of seeing continued principled statutory construction, especially if in the lower courts as you would expect, they're going to take note of this and take that approach in light of the guidance from the Supreme Court.

Chayila Kleist: Got it. Bundling a couple of questions together here. Does this, does the Justice Department's argument for the broad interpretation that was rejected by the Supreme Court, was that novel for this set of charges for these defendants, or is it something that they've historically held is true under 1512 C 2?

Theodore Cooperstein: I'm sorry, Chayila, I blame Zoom, but a little bit of your question was garbled, so I didn't quite hear it all. Can you repeat that for me?

Chayila Kleist: Oh, the question was, is this a novel interpretation by the Justice Department as to whether the broad interpretation of 1512 that was rejected by the court in this case or have they historically argued for that when they're bringing these sorts of charges?

Theodore Cooperstein: To my knowledge and experience, it is not, it had not been put forward that way before. As we know from the faculty, we see from the fact that there are multiple counts in all these January 6th indictments. There are already plenty of other statutes governing general violent or disruptive behavior on federal property or certain contexts or in conflict with federal officers or those assisting federal officers. Those statutes are there. They have already been applied and charged in many of these cases. So that was perhaps one of the other considerations that led to this opinion is that there's a definite sense of overkill on the part of the Department of Justice to be wielding this 20-year maximum felony as a very large hammer on top of these January 6th defendants, particularly those who you see that there are many who have various charges, trespassing, entering a restricted area, so forth, that would each be misdemeanors maybe six months to one year maximum, and then they get the one felony under 1512 C that makes it a 20-year felony, and that vastly complicates and exacerbates their sentence calculations, and that, of course, will go into the calculations of whether or not to plea or go to trial and so forth.

I should say that as far as the immediate or medium-term consequences going forward for the January 6th defendants, the ones that have multiple felony counts in addition to or aside from 1512 C, they may not actually have a practical benefit or effect from this decision. This is mostly going to help those who had only 15, 12 as their sole felony count and misdemeanors otherwise because that will drastically reduce their sentence guideline calculation or permissible sentence. And then there are others who may have already served their sentence, but because they are convicted felons, they still have an interest to go back and try to get that reversed so they're no longer branded as felons.

Chayila Kleist: Got it. Continuing on that answer, you've answered some of what are the initial impacts of this case for parties beyond those in the case itself, but are there downstream effects, i.e. industries or areas of law that should be paying attention to, not only to the decision in this case, but also to the way it was decided?

Theodore Cooperstein: Well, yes, of course. As I said, the immediate concern was how this would affect those traditional areas of implementation of 1512, the witness in the courtroom and investigation applications of the statute. Those are presumably going to continue as they had been for 20 years until this incident and this appeal. I think the significant limitation is going to be going forward on attempts by the governor or the Department of Justice to apply this more broadly going forward in any future instance of anything that might be conceivably near or affecting an official proceeding. Again, I don't think that the opinion truly turned on it, but there is some notion as to how broad or how vague can that definition of an official proceeding be. The argument is that at its narrowest, it was a judicial grand jury or trial or something of that sort because it wasn't limited to the judicial branch. Then we say, well, it could be a congressional hearing, say committee hearings. Say there was a mob who went into one of the Senate office buildings and tried to surround a senator in the middle of a justice's confirmation hearing. That might be something that it would apply to, but when there's something on the grounds outside the capitol building, that's where it starts to be a bit of a stretch.

I believe it was Justice Alito at oral argument who asked as a hypothetical, what about people who are continually night after night assaulting a courthouse, clearly alluding to the Portland, Oregon assaults by Antifa in the federal court building that have not been prosecuted. So those are the areas where we may see some more delineation of how far the government may be willing to go to wield these statutes. But again, as we said, there are plenty of other statutes already on the books, so there's quite a mix-and-match choice of what a prosecutor wants to bring, and depending on what the facts will support.

Chayila Kleist: Got it. A little bit more on the congressional reaction questions. Given the number of cases in which this charge has been brought and the way the decision came out, is there a potential world where we get a congressional attempt to clarify either to expand or redefine a 1512 or a new statute that sort of clarifies what seems to have been ambiguous to some degree?

Theodore Cooperstein: Oh, sure. I mean, that's always possible, and it's what we'd expect congressmen to do and the committees to do. Probably the House Judiciary Committee may start taking a look into it or the Senate Judiciary Committee, and that's what the court essentially is signaling the Congress that they'd like them to do as well. They're saying "To the extent there's still some lingering confusion or discontent with the way we've come down and you wish it to go otherwise, well, just go back and amend and change the statute." We know that for 20 years it's been working in the narrower judicial context with witnesses and new evidence impairment. The gray area is just how far outside of that context can you expand it? If the court has pretty much put its foot down and said, drawn a line, said no further, well, it's up to Congress to pass a new statute or a different statute or amend this one to allow it to go further.

Chayila Kleist: Got it. Given the apparent direction of DOJ during the current administration, do you expect that this decision could limit or curtail future prosecutions that seek to use a broad interpretation of the law or will the courts face future similar interpretational disagreements on other statutes?

Theodore Cooperstein: That's a good question. It's tough to predict what any one administration will do in the context of January 6th and the District of Columbia District, usually across the country, and traditionally, I should say, which is not a good basis these days for predicting because we do seem to be in a time when a lot of things are not as we might've expected, traditionally, many of these areas would be left to the discretion of the United States attorney in his own district. There are certain areas where Department of Justice policy and regulation restrict charging decisions, and investigative decisions to particular components of the Department of Justice which is true, say, campaign finance, public corruption. Certainly in the National Security Division, the prosecutor under the guidelines as I knew them in DOJ, really can't do anything without first seeking approval and oversight from Washington and main justice. We've seen the prosecution of the January 6th cases largely directed from main justice, main DOJ, in close coordination with the US Attorney's Office, which they can do because they're co-located in DC. In the future, if there are things happening across the country and other districts, it may turn on the nature or the timing of events and exactly what it's about. If it's political, it may well have some close supervision from Washington if it's just more local centered, local discontent or local dispute than perhaps the United States attorney would have more discretion to deal with it. So basically that's how I would see it going forward.

Chayila Kleist: Good, thanks. Now that we have a decision, and you've touched on this a little bit, so perhaps you can just say, "See my earlier comments" and we can move on, what are the questions that remain if any?

Theodore Cooperstein: Questions that remain? The key question now is how the parties, well, the DOJ will respond as it gets down to the district court or to the trial court. For now, the preliminary indication is that they're scrambling to try to figure out how they can retain 1512 and keep charging people with it or retain counts that have been charged either by recharacterizing or amending the allegations in their indictments, superseding the indictment, or coming up with another theory. They seem reluctant to let it go. So that's one question. How would this go? Another question is, how many, excuse me, present or former January 6th defendants might seek to implement or seek relief from this decision? There's the section 2255 federal habeas provision, the statute that's available for those who have already been convicted and sentenced to seek amendment of their sentence or their convictions. Presumably, there'll be a one-year statute of limitations running from last Friday when the opinion was handed down for them to seek that type of relief in the trial court before the district judge where they were tried and convicted. Others I know that have not yet been sentenced or not yet been convicted will be filing motions, of course, to get the benefit of the opinion. So that's what we see going forward on those sides. Beyond that, beyond the January 6th setting, it's hard to predict because we don't really know what issues or occurrences will come up, but we can rest assured that the traditional application of judicial administration crimes and evidentiary impairment will certainly go forward, whether the DOJ will be emboldened to keep trying and push a more elastic and expansive application, we'll see.

Chayila Kleist: Got it. Well, I think that's the last of my questions. We're almost to the top of the hour, so are there final comments, questions, thoughts you'd like to leave us with?

Theodore Cooperstein: Well, from my point of view, it was comforting in a sense to see that the appellate court and the Supreme Court were doing what we expected them to do and taking a somewhat detached view from a 10,000-foot height, which is how they profess to do their job because they don't always grant cert unless they think there's a widespread nationwide implication or effect to be decided and disputes presented to them. So they did that. They took a look at it and not just in the context of the January 6th opinion in its immediate effect, and not just on the political context of the ongoing election campaign in Donald Trump's instances, but rather how is this to be read? How can we uphold and be consistent with the traditions and the canons of statutory construction and how do we want to see this statute and others like it interpreted and applied going forward? So I think that was a successful aspect of this opinion.

Chayila Kleist: Got it. Well, Mr. Cooperstein, thank you so much for joining today. We really appreciate you sharing your time and expertise. Thanks also to our audience for joining and participating. We welcome listener feedback by email at [email protected], and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, however, we can wrap a couple minutes early. Thanks all for joining us today. We are adjourned.