One past Supreme Court case that the Justice Department must contend with, as it tries to sway the justices to sign off on the use of the obstruction charge for January 6 rioters, is a precedent sometimes referred to as “the fish case.”
In the 2015 case, a commercial fisherman was catching undersized red grouper off the coast of Florida, then had them tossed back into the Gulf of Mexico, attempting to prevent federal authorities from catching his illicit fishing practices.
Whether he could face the obstruction charge came down to court’s determination that fish were a “tangible object.”
The court’s decision: No, the fish weren’t. The fisherman hadn’t obstructed.
A 5-4 majority of the Supreme Court that included Justice Ruth Bader Ginsburg, the leader of the court’s liberal wing at the time, and Justice Samuel Alito, a stalwart conservative, said a “tangible object” included items “used to record or preserve information,” such as a document – not a fish.
The case involved a separate obstruction criminal code section than the Justice Department has used in January 6 cases. So the DOJ is trying to thread the needle, writing to the court in the Fischer case: “The statute at issue here is worded and structured quite differently” from the fish case.
