Supreme Court appears divided over obstruction law used to prosecute Trump, Jan. 6 rioters


Washington — A divided Supreme Court wrestled on Tuesday with the scope of a federal obstruction statute used to prosecute hundreds of people who breached the Capitol on Jan. 6, 2021, in a legal battle that could have ramifications for the election interference case against former President Donald Trump.

At issue in the court fight known as Fischer v. U.S. is whether federal prosecutors can apply a law passed in the wake of the Enron scandal to the Jan. 6 assault. The measure makes it a crime to “corruptly” obstruct or impede an official proceeding, and defense attorneys argued that the Justice Department has turned the measure into a “dragnet.”

The first provision of the law prohibits altering, destroying, mutilating or concealing a document. Before the Jan. 6 attack, prosecutors had never used the statute in cases that did not involve evidence tampering. But since the unprecedented assault on the Capitol, it has been levied against more than 350 defendants who breached the building where Congress had convened a joint session to tally states’ electoral votes. More than 1,380 people have been charged in connection with the Jan. 6 attack.

It is also among the charges that Trump is facing in the case brought in Washington, D.C., by special counsel Jack Smith last year. The former president pleaded not guilty to one count of obstructing Congress’ counting of Electoral College votes, one count of conspiring to obstruct the proceeding and two others.

Oral arguments

The case is the first in which the Supreme Court has been tasked with tackling the fallout from the Jan. 6 attack head-on, and Solicitor General Elizabeth Prelogar, who argued on behalf of the government, repeatedly sought to remind the justices of the unprecedented nature of the events that day.

“The fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election,” she said in opening remarks to the justices. “That is, they obstructed Congress’ work in that official proceeding.”

Justice Clarence Thomas, who was absent from arguments Monday, was back on the bench. The justices focused much of the first half of arguments on the language of the statute, including the use of the word “otherwise.” Prelogar argued that the obstruction provision functions as a “classic catchall” designed to cover all other acts that obstruct an official proceeding.

Justice Elena Kagan seemed to agree, noting that Congress drafted the measure to fill gaps in the law that were exposed after the Enron scandal. 

“This is their backstop provision,” she told Jeffrey Green, who is representing Joseph Fischer, the man charged with obstructing an official proceeding on Jan. 6 and is seeking to have the count dismissed. 

But during the second half, when Prelogar defended prosecutors’ use of the statute in cases arising out of the Capitol breach, several of the conservative justices seemed concerned that the Justice Department is applying the law too broadly and could use it to prosecute people who participate in sit-ins or other demonstrations.

“What happened on Jan. 6 was very, very serious,” Justice Samuel Alito said after asking whether a protester who disrupts a Supreme Court argument could be charged with violating the obstruction law. “But we need to find out what are the outer reaches of this statute under your interpretation.”

Rioters loyal to President Donald Trump at the U.S. Capitol in Washington, Jan. 6, 2021.
Rioters loyal to President Donald Trump at the U.S. Capitol on Jan. 6, 2021. 

Jose Luis Magana / AP


The outcome of the case is being closely watched because of the possible impacts to the charges against Trump, which stem from what Smith alleges was a multi-pronged plot to reverse the outcome of the 2020 presidential election. If the court sides with Fischer, Trump could seek to have the two counts related to obstruction of an official proceeding dismissed.

Trump’s case has been paused for months as he seeks to have all four charges tossed out on the grounds he is entitled to presidential immunity. The Supreme Court will consider that issue next week.

Separate from Trump, the obstruction dispute could also have repercussions for the Jan. 6 defendants who have already been convicted of the offense or pleaded guilty. A decision finding prosecutors’ broad reading of the measure was wrong could prompt bids for new trials or lighter sentences. 

Prelogar said for 50 people, it is the only felony charge brought against them. The average sentence among those defendants is 26 months in prison.

The Jan. 6 case 

Fischer brought the case currently before the Supreme Court after he was charged in a seven-count indictment in early 2021. Then a police officer in Pennsylvania, Fischer attended the “Stop the Steal” rally outside the White House and later entered the Capitol around 3:25 p.m. on Jan. 6. Prosecutors claimed he encouraged rioters to “charge” and ran into a line of officers while yelling an obscenity.

His lawyers, though, said Fischer was pushed by the crowd into a police line. Fischer was in the Capitol for less than four minutes, they told the court.

Among the charges Fischer faced was assaulting a police officer, disorderly conduct and corruptly obstructing, influencing and impeding an official proceeding — Congress’ certification of the Electoral College vote. The charge was enacted as part of the 2002 Sarbanes-Oxley Act, and violators face up to 20 years in prison.

Fischer moved to dismiss the count. U.S. District Judge Carl Nichols granted his request, determining that nothing in the indictment alleged that Fischer “took some action with respect to a document, record, or other object” in order to obstruct the congressional proceedings. Nichols has been the only district court judge out of 15 in D.C. hearing Jan. 6 cases to adopt a narrow reading of the statute.

The Justice Department appealed his ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against Fischer in a divided decision last year. Lawyers for Fischer then asked the Supreme Court to review the D.C. Circuit’s decision, and it agreed to do so in December.

During arguments Tuesday, Green urged the justices to reject the Justice Department’s broad use of the law.

“The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct,” he said. “The Sarbanes-Oxley-based, Enron-driven evidence tampering statute is not one of them.”

Green had warned in court filings that the government’s definition of the law encompassed lawful acts like lobbying, advocacy and protest, a prospect that appeared to concern Alito and Justice Neil Gorsuch.

Gorsuch asked whether a sit-in that disrupts a trial or access to a federal courthouse would qualify as corruptly obstructing an official proceeding, or whether a heckler who disrupted a Supreme Court address could be charged under the law. He also seemed to reference an incident involving Democratic Rep. Jamaal Bowman of New York, who pleaded guilty to a misdemeanor charge after pulling a fire alarm in a Capitol Hill office building ahead of a vote on a government funding bill last year.

“Are those all federal felonies subject to 20 years in prison?” Gorsuch asked.

But Prelogar said the Justice Department has only brought the charge when there is evidence that a defendant had corrupt intent to disrupt Congress’ counting of electoral votes. In response to Justice Brett Kavanaugh’s question as to why prosecutors had to charge Fischer with the obstruction count when he was indicted for six others, she said those charges “don’t fully reflect the culpability” of his actions on Jan. 6.

“One of the distinct strands of harm, one of the root problems with petitioners’ conduct is that he knew about that proceeding, 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. 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 law enforcement officer,” she said.

Prelogar said it is “entirely appropriately” for the government to seek to hold Fischer accountable “for that conduct with that intent.”

She also drew distinctions between the events of Jan. 6 and a protester who interrupts a Supreme Court proceeding.

“It’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the justices and other participants to flee for their safety, and done so with clear evidence of intent to obstruct,” Prelogar said.

Still, Chief Justice John Roberts and Thomas questioned whether the Justice Department has applied the obstruction statute before in situations that did not involve specific documents. 

“There have been many violent protests that have interfered with proceedings,” Thomas said. “Has the government applied this provision to other protests in the past and has this been the government position throughout the lifespan of the statute?”

Roberts, meanwhile, seemed skeptical that the provision could be interpreted to broadly prohibit a defendant from corruptly engaging in conduct to obstruct an official proceeding.

“You can’t just tack it on and say, look at it as if it’s standing alone, because it’s not,” Roberts said.

The impacts of a decision

The Supreme Court said in December it would take up the case, and its decision to do so reverberated swiftly. Some defendants who were convicted of violating the obstruction statute but not yet sentenced sought to pause their proceedings until the justices rule, likely by the end of June.

If Fischer prevails and the high court finds the law narrowly covers corrupt evidence-related conduct, there could be dozens of defendants who have been convicted and seek resentencing, withdraw guilty pleas or ask for a new trial.

As for the impact on Trump’s case, the special counsel told the Supreme Court in a filing in the immunity case last week that regardless of how it rules, the charges against Trump are still valid.

Smith has accused Trump of deceitfully organizing fake slates of electors in seven battleground states and urging state officials to send the false certificates to Congress. The creation of the phony documents, he said, “satisfies an evidence-impairment interpretation.”



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