Supremes thrash out key Jan. 6 allegation

The Supreme Court’s nine justices wrestled Tuesday with the violence of the Jan. 6, 2021, Capitol riot while considering a case that could upend hundreds of prosecutions, including that of former President Donald Trump.

Pennsylvania resident Joseph Fischer had appealed to the high court to throw out a charge of obstructing an official proceeding, a count based on a technical reading of the 2002 SarbanesOxley Act, passed after the Enron accounting fraud scandal.

Fischer attorney Jeffrey Green argued that the charge should only apply to defendants who tampered with official papers or other items while storming the Capitol, and that the Justice Department had overstepped by applying Sarbanes-Oxley to his client.

Fischer’s argument appeared to win over four of the court’s six conservative justices — Clarence Thomas, Samuel Alito, John Roberts and Neil Gorsuch — while liberals Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor seemed to lean toward the government.

At least 315 accused Capitol rioters have faced the same obstruction charge as Fischer, and the same allegation has been lodged against Trump, who faces up to 20 years in prison if convicted on that charge.

The maximum penalty drew the concern of Gorsuch, who asked Solicitor General Elizabeth Prelogar, arguing for the government: “Would a sit-in that disrupts a trial, or access to a federal courthouse, qualify?”

Prelogar claimed that the statute has built-in limitations because prosecutors would have to prove wrongdoing “beyond a reasonable doubt” and show intent.