Justices question charges against Jan. 6 rioters, Trump
WASHINGTON » The Supreme Court on Tuesday questioned whether federal prosecutors went too far in bringing obstruction charges against hundreds of participants in the Jan. 6, 2021, Capitol riot. But it wasn’t clear how the justices would rule in a case that also could affect the prosecution of former President Donald Trump, who faces the same charge for his efforts to overturn his election loss in 2020.
The justices heard arguments over the charge of obstruction of an official proceeding in the case of Joseph Fischer, a former Pennsylvania police officer who has been indicted for his role in disrupting Congress’ certification of Joe Biden’s 2020 presidential election victory over Trump. Fischer is one of 330 people facing that charge, which stems from a law passed in the aftermath of the Enron financial scandal more than two decades ago to deal with the destruction of documents.
Trump is facing two charges in a separate case brought by special counsel Jack Smith in Washington that could be knocked out with a favorable ruling f rom the nation’s highest court. Next week, the justices will hear arguments over whether the former p resident and presumptive nominee f or the 2024 Republican nomination h as “absolute immunity” from prosecution in that case, a proposition that has so far been rejected by two lower courts.
Smith has argued separately in the immunity case that the obstruction charges against Trump are valid no matter how the court decides Fischer’s case. The first former U.S. president under indictment, Trump is on trial on hush-money charges in New York and also has been charged with election
interference in Georgia and with mishandling classified documents in Florida.
It w as n ot c lear a fter more t han 90 m inutes o f arguments precisely where the court would land i n Fischer’s case. Conservative j ustices Samuel A lito and Neil Gorsuch a ppeared most likely t o side with Fischer, while liberal Justices Elena K agan a nd Sonia Sotomayor seemed more favorable to the Justice Department’s position.
Justices Amy Coney Barrett a nd K etanji B rown Jackson, a f ormer federal public defender, expressed interest in more of a middleground o utcome t hat might make it harder, but not impossible, for prosecutors to use the obstruction charge.
Some of the conservative justices said the law was so broad that it could be used against even peaceful protests and also questioned why the Justice Department has not brought charges under the provision in other violent protests.
“There have been many violent protests t hat have interfered w ith proceedings,” J ustice C larence Thomas said. He was back on the bench Tuesday after an unexplained one- day absence.
Gorsuch appeared to be drawing on a ctual events when h e asked Solicitor General Elizabeth Prelogar whether people could be charged with obstructing an official proceeding if they rose in protest inside the courtroom, heckled the president at the State of the Union or pulled a fire alarm in t he Capitol complex to delay a vote in Congress.
Alito, s uggesting the
government’s reading of the law is too broad, asked whether the charge c ould be a pplied t o people who disrupted the day’s court session by shouting “Keep the January 6 insurrectionists in jail” or “Free the January 6 patriots.”
He h astened to a dd, “What happened on Jan. 6 was very, very serious and I’m not equating this with that.”
The high court case focuses on whether the antiobstruction provision of a law that w as e nacted in 2 002 in r esponse to the financial scandal that brought down Enron Corp. can be used against Jan. 6 defendants.
Lawyers for Fischer, the former N orth C ornwall Township police officer, argue that the provision was meant to close a loophole in c riminal law and discourage the destruction of r ecords i n response t o an investigation. Until the Capitol riot, lawyer J effrey Green t old the court on F ischer’s b ehalf, t he provision “had never been used to prosecute anything other than e vidence tampering.”
Fischer “was not part of the mob” that forced lawmakers t o flee t he House and Senate c hambers, Green wrote in c ourt p apers, noting that he entered the Capitol after Congress had recessed. The weight of the crowd pushed F ischer into a line of police inside, Green wrote.
But Prelogar, the administration’s top Supreme Court lawyer, said the other side is reading the law too narrowly, arguing it serves as a “classic catchall” designed to deal with the obstruction of an official proceeding. She said Fischer’s actions before, during and after Jan. 6 demonstrated that h e intended t o keep
Congress from doing its job of certifying the election results.
“He had said in advance of Jan. 6 that he was prepared to storm the Capitol, prepared to use violence, he wanted to intimidate Congress,” Prelogar s aid. “He said they can’t vote if they can’t breathe. And then he went to the Capitol on Jan. 6 with that intent in mind and took action, including assaulting a l aw e nforcement officer.”
The obstruction charge is among the most widely used f elony charges brought in the massive federal prosecution following the violent insurrection. It carries a maximum prison term of 20 years, but Prelogar said the average term imposed so far is about two years.
Roughly 170 Jan. 6 defendants have been convicted of obstructing or conspiring to obstruct the Jan. 6 joint session of C ongress, including the leaders of two far- right extremist groups, the Proud Boys a nd Oath Keepers. A number of defendants h ave had their sentencings delayed until after the justices r ule on the matter.
Some r ioters h ave even won early release from prison while the appeal is pending over concerns that they might end up serving longer than t hey should have if the Supreme Court rules against the Justice Department. They include Kevin Seefried, a Delaware man who threatened a Black police officer with a pole a ttached to a C onfederate b attle flag a s he stormed the Capitol. Seefried was sentenced last year to three years behind bars, but a judge recently ordered that he be released one year i nto his prison term while awaiting the Supreme Court’s ruling.