A past Supreme Court case, sometimes referred to as the “fish case,” set a precedent that the Justice Department had to argue as it tried to sway judges to sign off on the use of obstruction charges against the Jan. 6 rioters.
In a 2015 case, a commercial fisherman caught a small amount of red grouper off the coast of Florida and then threw them back into the Gulf of Mexico, trying to prevent federal authorities from catching his illegal fishing practices.
Whether he could face the prohibition charge came down to the court's determination that the fish was a “certain object.”
Court's verdict: No, no fish. The fisherman did not stop.
A 5-4 majority of the Supreme Court, which included Justice Ruth Bader Ginsburg, the head of the court's liberal division at the time, and Justice Samuel Alito, a staunch conservative, said that “substantial material” includes materials “used to record or preserve.” Information like a document – not a fish.
The January 6 cases involve a separate prohibition Penal Code section than the one used by the Department of Justice. So the DOJ tries to pull the needle, writing to the court in the Fisher case: “The statute at issue here is worded and constructed very differently from the Fish case”.
