An earlier Supreme Court case that the Justice Department must grapple with as it tries to convince the justices to approve the use of the obstruction charge for the January 6 rioters is a precedent that is sometimes referenced. like “the case of the fish.”
In the 2015 case, a commercial fisherman was catching undersized red grouper off the coast of Florida and then dumped them back into the Gulf of Mexico in an attempt to prevent federal authorities from detecting his illicit fishing practices.
Whether he could face the obstruction charge depended on the court's determination that the fish was a “tangible object.”
Court decision: No, the fish were not. The fisherman had not obstructed.
A 5-4 majority of the Supreme Court, which included Justice Ruth Bader Ginsburg, leader of the court's liberal wing at the time, and Justice Samuel Alito, a staunch conservative, said a “tangible object” included items “used to record or preserve information,” like a document, not a fish.
The case involved a section of the obstruction criminal code separate from the one the Justice Department used in the Jan. 6 cases. So the Justice Department is trying to thread the needle, writing to the court in the Fischer case: “The law at issue here is written and structured very differently” than the fish case.
