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The conservative majority of the Supreme Court indicated this Tuesday that it could dismiss a charge that prosecutors brought against hundreds of people who participated in the riots on January 6, 2021 at the United States Capitol, a decision that could force the Justice Department to reopen some of those cases. During the more than 90 minutes of arguments, most of the justices expressed concern about the way the Justice Department is using the law enacted by Congress more than two decades ago in response to the Enron accounting scandal. Critics claimed the felony charge, which carries a prison sentence of up to 20 years, was intended to prevent tampering with evidence, not an insurrection in support of a president who lost re-election. The Court’s decision, expected in July, could have significant ramifications for about 350 people who were charged with “obstruction” of an official proceeding for their role in the attack on the Capitol, including more than 100 people who have already been convicted and received prison sentences. The high court’s ruling could also affect the federal criminal case for electoral subversion pending against former President Donald Trump, who was also charged with the crime of obstruction.
The appeal was filed by a former Pennsylvania police officer, Joseph Fischer, accused of multiple crimes for pushing into the Capitol after attending Trump’s rally in front of the White House on January 6. Fischer’s lawyer told the justices that prosecutors overstepped their bounds by charging his client with what critics previously framed as a law against document shredding. Largely absent from Tuesday’s oral arguments was recognition of the traumatic and deadly turn of events that took place right in front of the Supreme Court three years ago, after Trump incited and encouraged a crowd with false claims of fraud to march to the Capitol and “fight like hell.” Instead, the discussion largely revolved around a technical and legalistic debate over the meaning of the words of the statute, particularly the word “otherwise.” The 2002 law criminalizes the “corrupt” alteration, destruction, or mutilation of a record with the intent that it cannot be used in an “official proceeding,” or the “otherwise” obstruction, influence, or impediment of such a proceeding. Fischer argued that, as a whole, the law was intended to prohibit the destruction of records. But the Justice Department said it was much broader than that, covering a broader range of actions – including physical intrusion – that would obstruct a proceeding.
“The key word is ‘otherwise,'” Justice Brett Kavanaugh, often a critical vote in high-profile cases, said at one point while questioning Attorney General Elizabeth Prelogar. “It would be strange to have such a broad provision wrapped up and connected by the word ‘otherwise.’ That position also seemed to catch the attention of Chief Justice John Roberts, who at one point sharply criticized the administration for trying to separate the “evidence” part of the law from a provision dealing with “obstruction.” “You can’t add it and say, ‘Look at it as a standalone,'” Roberts said. “Because that is not it.” Occasionally, Prelogar tried to remind the judges of the details of the case at hand. In a particularly pointed response to a question from Kavanaugh about what other charges the Justice Department may use in Capitol riot prosecutions, Prelogar argued that Fischer, before the attack, had expressed his intention to storm the Capitol and use violence, if necessary, to disrupt the vote.
There was a strong dose of “and you more” from the conservative justices, who repeatedly brought up protests from the left while pressing both sides on what conduct they believed would be — and would not be — covered by the filibuster law. Justice Neil Gorsuch posed several hypotheticals to Prelogar, asking whether prosecutors could use the law to charge someone who participated in a sit-in that disrupted a trial in federal court or who was caught pulling a fire alarm before a vote in Congress. He did not mention Rep. Jamaal Bowman by name, but the allusion to the New York Democrat was clear: He pulled the fire alarm shortly before a critical vote on a government funding bill in September. Bowman pleaded guilty to a misdemeanor and was censured by the House. Judge Samuel Alito brought up Monday’s riots on the Golden Gate Bridge. Pro-Palestinian protesters, angered by Israel’s war against Hamas in Gaza, blocked rush-hour traffic and led to more than 30 arrests. Prelogar differentiated these cases by pointing out that the one on January 6 was a much more aggressive and multiple attack, with the direct objective of paralyzing a specific procedure. He said many of the Jan. 6 rioters violently broke through multiple police lines, carried tactical gear and weapons, and made explicit threats before reaching the city of Washington.
The Supreme Court’s three liberals appeared to align in favor of the Justice Department’s position that federal obstruction law is broad enough to include the conduct of the Jan. 6 rioters. The law, Justice Elena Kagan said, could have been written by Congress to limit its ban on tampering with evidence. But she, she stressed, “doesn’t.” Kagan and Justices Sonia Sotomayor and Ketanji Brown Jackson pressed Fischer’s attorney, Jeffrey Green, on the plain text of the law, adopting a conservative notion of “textualism,” or reading the law for its plain meaning without considering legislative history and other factors. Jackson noted that the language of the law “does not use the term ‘evidence,'” but instead “uses the term ‘official proceeding,'” which is defined as a congressional proceeding.
Although Trump is not a party to the case, the appeal indirectly places him on the Supreme Court’s agenda for the third time this election year. In March, the justices unanimously ruled that the former president should be on the ballot in Colorado despite allegations that he violated the 14th Amendment’s “ban on insurrection” by his actions on January 6. Special prosecutor Jack Smith charged Trump with the same obstruction charge that prosecutors brought against Fischer and more than 350 people involved in the attack. The former president and likely GOP nominee would almost certainly use a Fischer victory to try to further undermine the Justice Department’s indictment of the Jan. 6 defendants. To what extent Fischer’s case would impact Trump’s is open to debate. Smith has argued that the obstruction charge against Trump is based on the false list of electors that the former president attempted to present to Congress, not the riot itself. Unless the court rules broadly in a way that undermines the impeachment entirely, the case against Trump could stand even if Fischer wins his case.
Justice Clarence Thomas was absent from oral arguments Monday, and the Court declined to explain his absence. He returned Tuesday for a case that critics say he should not be involved in at all. The Fischer case has led some liberal critics of the Court to demand that Thomas abstain. That’s because Thomas’ wife, Ginni Thomas, attended Trump’s incendiary Jan. 6 rally and conspired with Trump allies to keep him in power after he lost the election. Thomas has ignored calls for him to recuse himself and raised a series of questions challenging both sides of the case. “There have been a lot of violent protests that have interfered with the proceedings,” Thomas asked Prelogar, insisting on a theme he returned to repeatedly during arguments. “Has the Government applied this provision to other protests in the past?” Prelogar said the Justice Department has applied the law more broadly than in evidence tampering cases, but acknowledged that it has not been used before against “a situation where people have violently broken into” a building. But that, he said, was based on the unusual nature of the attack on the Capitol itself. “I am not aware,” he said, “that this circumstance occurred before January 6.”
