Obstruction After Fischer

Obstruction of Official Proceedings Under 18 U.S.C. § 1512(c)(2) After Fischer v. United States

Under 18 U.S.C. § 1512(c), 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," or who "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both." The Supreme Court resolved the scope of the residual clause in Fischer v. United States, 603 U.S. 480 (2024), holding that "[t]o prove a violation of §1512(c)(2), 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." Because "Congress would not ordinarily introduce a general term that renders meaningless the specific text that accompanies it," the "“otherwise” provision of §1512(c)(2) is limited by the list of specific criminal violations that precede it in (c)(1)"; on the government’s contrary reading, "the sweep of subsection (c)(2) would swallow (c)(1), leaving that narrower provision with no work to do." The provision’s Sarbanes-Oxley origins pointed the same way: "It would be peculiar to conclude that in closing the Enron gap, Congress actually hid away in the second part of the third subsection of Section 1512 a catchall provision that reaches far beyond the document shredding and similar scenarios that prompted the legislation in the first place."

The narrowing rests on an interpretive method the Court had already applied to a neighboring obstruction provision. Fischer framed the question as one of context — "[t]o determine the scope of the residual “otherwise” clause in §1512(c)(2), the Court must decide how it is linked to its “surrounding words”" — citing Yates v. United States, 574 U.S. 528 (2015), which refused to give the words "tangible object" in 18 U.S.C. § 1519 their broadest possible meaning: "A tangible object captured by §1519, we hold, must be one used to record or preserve information." As the plurality explained, "[a]pplying the canons noscitur a sociis and ejusdem generis, “tangible object,” as the last in a list of terms that begins “any record [or] document,” is appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects used to record or preserve information." And where the traditional tools leave doubt, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."

Applying the new element, the District of Columbia district court has set aside § 1512(c)(2) convictions of January 6 defendants whose conduct halted the certification without targeting the electoral ballots. On collateral review, United States v. Ochs, No. 1:21-cr-00073 (D.D.C. Nov. 1, 2024) vacated two guilty-plea convictions under § 2255, framing the issue as "whether engaging in conduct causing the halting of the proceeding and the concomitant removal of the ballots to a more secure location amounts to impairing the availability or integrity of the ballots themselves—and, on the factual record in this case, the answer is no." "[T]he government's theory of obstruction—that by forcing Congress's official proceeding to be halted, defendants prevented the use of the ballots as intended to certify the Electoral College vote—is the exact interpretation rejected by the Supreme Court in Fischer," a limit Justice Barrett’s dissent had recognized: "[o]ther means of obstructing a proceeding—say, by shutting it down—are out." On a post-trial motion, United States v. Baez, No. 1:21-cr-00507 (D.D.C. Jan. 17, 2025) entered a judgment of acquittal, reasoning that "the removal of the ballots from the Senate and House chambers preserved their availability for use in the certification process, rather than impaired that availability," and that a defendant’s "focus[] on stopping Members of Congress and the proceeding to certify the Electoral College vote . . . falls short of showing any specific intent by [a defendant] to impair the availability or integrity of the electoral ballots themselves." Evidence that the defendant understood certification involved counting Electoral College ballots "cannot by itself transmute her intent to interfere with the proceeding into a specific intent to impair the availability of the Electoral College ballots."

The narrowed statute retains real work. Fischer v. United States, 603 U.S. 480 (2024) itself explained that "subsection (c)(2) makes it a crime to impair the availability or integrity of records, documents, or objects used in an official proceeding in ways other than those specified in (c)(1)" — for example, "it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence" — and liability extends to impairing "other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information." Courts have relied on that residual coverage to sustain charges outside the January 6 context. United States v. Jessen, No. 1:24-cr-01346 (D.N.M. Apr. 14, 2026) denied a motion to dismiss obstruction counts, observing that "[i]n Fischer, the Supreme Court tethers (c)(2)’s “otherwise” provision to the offenses that (c)(1) enumerates," that "[t]his reading of (c)(2) avoids criminalizing “a broad swath of prosaic conduct” and keeps it from being a “coverall statute”" — and that "[r]eading § 1512(c)(2) in the context of Fischer, the Court concludes that it is not unconstitutionally vague." Because the record presented "a dispute whether Jessen impairs or attempts to impair the availability or integrity of records, documents, or other materials used in an official proceeding, including Grand Jury proceedings" — including allegations of "manipulating telephone logs to avoid detection and to create plausible deniability" — the counts proceeded past the pleading stage.

Taken together, the decisions convert § 1512(c)(2) from an all-purpose obstruction charge into an evidence-focused offense. A completed violation now requires proof that the defendant’s conduct impaired — diminished, weakened, or made worse — the availability or integrity of records, documents, objects, or other things used in the official proceeding, and an attempt requires the specific intent to achieve that impairment, not merely knowledge that stopping the proceeding would prevent the use of evidence within it. Conduct that only delays, disrupts, or shuts down a proceeding falls outside the statute, and convictions resting on that abandoned theory have been undone on post-trial motions and on collateral review, including through the actual-innocence gateway where the defendant pleaded guilty and never appealed. But prosecutions built on fabricated evidence, manipulated records, or interference with testimony and other things destined for a grand jury or other official proceeding remain squarely within the narrowed provision, which courts have upheld against vagueness challenges precisely because Fischer tethered its residual clause to the evidence-tampering offenses that precede it.