Jan. 6 case will test the Supreme Court’s hypocrisy

by Noah Feldman

Last Tuesday, the Supreme Court’s conservative majority appeared skeptical that prosecutors could use the Sarbanes-Oxley Act to go after Jan. 6 rioters. It’s a closely watched case in part because Special Counsel Jack Smith also cited this statute in his criminal charges against former President Donald Trump.

As a matter of statutory interpretation, it would be plausible to say that the relevant part of the statute shouldn’t apply to Trump or the rioters: it is part of the Sarbanes-Oxley Act and was originally aimed at preventing the destruction of documents to thwart criminal investigation.

The problem is that the court’s conservatives are officially textualists. That is, they believe a statute’s purpose shouldn’t matter — only its literal language should count. If they nevertheless read the law not to cover the hundreds of Jan. 6 rioters and Trump, they will be demonstrating the utter bankruptcy of textualism as a theory — not to mention looking hypocritical for violating their own principles of statutory interpretation.

The law in question, 18 USC 12(c), first says it’s a crime to “corruptly” alter or destroy a document “with the intent to impair the object’s integrity or availability for use in an official proceeding.” That’s the part that tells you the main purpose of the statute, along with the history of Sarbanes-Oxley, passed in the aftermath of the Enron scandal and aimed at assuring effective oversight of companies. No one thinks this part of the law applies to the Jan. 6 rioters.

Then, the second part of that same section punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” This is the language used by federal prosecutors to go after Trump and hundreds of Jan. 6 offenders, including Joseph Fischer, the one whose case is before the Supreme Court right now.

The basis for charging Jan. 6 rioters under the statute is that they clearly were trying to obstruct, influence, and impede an official proceeding, namely the congressional certification of the presidential vote. Indeed, they succeeded in impeding that proceeding. If you read the words of the statute in their plain and obvious meaning, they clearly include the Jan. 6 scenario.

If you are a textualist when it comes to statutory interpretation, as all the court’s conservatives claim to be, that should be the end of the matter.

According to the textualist position associated with the late Justice Antonin Scalia, legal words mean what they say. If Congress says it’s a crime to obstruct or impede an official proceeding, that’s what the crime is. That’s how the conservatives should be voting here if they have a shred of commitment to their preferred theory of statutory interpretation. (Justice Amy Coney Barrett, who clerked for Scalia and is generally loyal to his principles, did seem like she realized this in her questions.)

To reach an alternate conclusion, you really have to look at the statute’s legislative purpose — the other leading theory of statutory interpretation, espoused especially by retired Justice Stephen Breyer, who made this issue the centerpiece of his newly published book. The purpose of the law can reasonably be read as restricted to the destruction of documents. Seen through the lens of purpose, the extension of the statute to cover Jan. 6 goes too far.

The problem for the conservative textualist justices is that they can’t admit they’re looking at purpose. So in the oral argument, several belabored the theory that the word “otherwise” in the law’s second section points back to the first part of the law, and therefore textually limits the extension of the law. In this view, the word “otherwise” shows you that the drafters intended to cover as-yet-unimagined methods of altering a document that might not count as impairing its “integrity or availability.”

Maybe so — if purpose were allowed to be part of the analysis. But that kind of interpretation is the polar opposite of what textualism teaches.

Justice Samuel Alito sought to emphasize how broad the statute would be if it extended to any interference with a federal proceeding, hinting it would impinge on First Amendment freedoms. But that is true of other criminal laws, and the way we usually deal with it is by saying they don’t apply when they limit freedom of speech or assembly, not by saying they don’t apply to core criminal conduct.

Trump is also charged with other crimes on Jan. 6, as are the rioters. There will be other ways to punish anyone convicted of crimes that day. What’s at stake, therefore, is the good name of textualism — and the good name of the court’s self-professed textualists.

There are some forms of self-contradiction that threaten the reputation of legal theories and the judges who wield them. This case is one.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.