The Supreme Court today rejected the statutory interpretation underlying a criminal charge against some of the Donald Trump supporters who participated in the riot at the U.S. Capitol on January 6, 2021. The same charge—obstructing an official proceeding—also figures in the federal indictment accusing the former president himself of illegally attempting to reverse the outcome of the 2020 presidential election.

Prosecutors alleged that rioters obstructed an official proceeding by interrupting the congressional ratification of the election results. In Trump's case, they argued that he interfered with that process by promoting the stolen-election fantasy that motivated the rioters, a subset of the protesters who attended the pre-riot rally at which he ginned up his supporter's outrage at President Joe Biden's supposedly illegitimate victory and urged them to march on the Capitol "peacefully and patriotically." But according to the Supreme Court, neither the rioters' actions nor Trump's meet the elements of this offense.

The case involves Joseph Fischer, a former police officer who was charged with obstructing an official proceeding under 18 USC 1512(c) after participating in the riot. That provision was created by the Sarbanes-Oxley Act, a 2002 law that Congress approved in response to a financial scandal involving the destruction of potentially incriminating documents by the accounting firm Arthur Andersen. In light of that context and the provision's structure, Fischer argued, his conduct at the Capitol, which allegedly included entering the building and confronting police officers, did not fit the requirements for prosecuting someone under that statute.

Six justices agreed. Writing for the majority in Fischer v. United States, Chief Justice John Roberts says proving a violation of Section 1512(c) requires "establish[ing] that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects," or "other things used in the proceeding, or attempted to do so."

Section 1512(c)(1) applies to 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." Section 1512(c)(2), the provision used in the Capitol riot cases, applies to anyone who "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so." Both are felonies punishable by up to 20 years in prison.

The crucial question, Roberts says, is whether "this 'otherwise' clause should be read in light of the limited reach of the specific provision that precedes it," as a federal judge concluded, or as a catchall broad enough to encompass Fischer's behavior, as a divided D.C. Circuit panel held. Roberts concludes that the latter interpretation is implausible.

"Subsection (c)(1) describes particular types of criminal conduct in specific terms," Roberts writes. "To ensure the statute would not be read as excluding substantially similar activity not mentioned, (c)(2) says it is also illegal to engage in some broader
range of unenumerated conduct."

To determine how broad that "range of unenumerated conduct" is, Roberts relies on two interpretive principles. "The canon of noscitur a sociis teaches that a word is 'given more precise content by the neighboring words with which it is associated,'" he notes. That principle "avoid[s] ascribing to one word a meaning so broad that it is inconsistent" with "the company it keeps." And under "the related canon of ejusdem generis," a "general or collective term" at the end of "a list of specific items" is typically "controlled and defined by reference to" the "specific classes…that precede it."

Roberts illustrates those principles with the example of a sign at a zoo that says, "Do not pet, feed, yell or throw objects at the animals, or otherwise disturb them." Does that last phrase encompass "a visitor [who] eats lunch in front of a hungry gorilla, or talks to a friend near its enclosure"? Common sense suggests not.

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The practical implications of this decision are important for defendants like Fischer, given the stiff punishment authorized by this provision. But there is no shortage of other charges that the Justice Department can file (and has filed) against the Capitol rioters, ranging from misdemeanors such as "entering and remaining in a restricted building" to felonies such as aggravated assault. And while the Court's decision negates two of the charges against Trump, it does not affect the other two counts in the election interference indictment: conspiracy to defraud the United States and conspiracy to deprive Americans of their voting rights.

The more serious threat to that prosecution is the litigation over whether—and, if so, to what extent—Trump is immune from criminal charges based on his "official acts" as president. The Supreme Court is expected to rule on that question this Monday. But with just four months to go before the presidential election, it seems likely that, even if the Court clears the way, any trial would begin after that contest is decided. If Trump wins the election, as he seems poised to do right now, he surely will find a way to make the case disappear.