Court's Jan. 6 ruling ends pretense of textualism

By Noah Feldman / Bloomberg Opinion

The conservative majority of the Supreme Court has held that a law that bars obstructing or impeding a federal proceeding doesn’t apply to the Jan. 6 attack on the Capitol; despite the rioters’ effort to obstruct the counting of the 2020 electoral votes. The decision is an outrageous betrayal of the conservatives’ own supposed principle of interpreting statutes according to the words of the text rather than according to Congress’s intent.

The law in question, enacted as part of the Sarbanes-Oxley Act, was written to criminalize the destruction of documents that might have been part of a government proceeding. So in the abstract, the court’s holding is reasonable, even correct. The problem is that the five conservatives who voted in the majority officially believe that legislative purpose and legislative intent are irrelevant and that only text matters. And the text is as clear as it could be.

The result is evident hypocrisy; and a partial reprieve for former President Donald Trump, who encouraged the riot, and the many rioters who have been charged under the law.

The two relevant provisions of the law start with one that criminally punishes anyone who “alters, destroys, mutilates, or conceals a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding.” The next provision punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Since Sarbanes-Oxley was enacted in 2002 to go after corporate malfeasance, it’s fairly straightforward to conclude that Congress intended the second provision to refer back to the first. You can’t destroy a document or record to thwart an official proceeding nor “otherwise” obstruct an official proceeding with respect to documents and records.

https://www.heraldnet.com/opinion/comment-courts-jan-6-ruling-ends-pretense-of-textualism/