Assault on US Capitol reaches the Supreme Court

In Washington, the U.S. Capitol building faces the Supreme Court. The assault on the Capitol on January 6, 2021, has now crossed the street to America’s highest judicial body. On Wednesday, the Supreme Court agreed to hear a case that has wide-reaching ramifications. What the justices decide could overturn the convictions of dozens of Capitol rioters, and affect the charges against former president Donald Trump in Washington.

The Supreme Court on Wednesday published an order in which it agreed to rule on two important matters. The first is the high-profile case on the requirements to administer the abortion pill mifepristone. After the Supreme Court overturned the federal right to abortion in June last year, there is a lot of attention on how justices will respond to this reproductive rights complaint, which has been brought by Danco Laboratories (which makes mifepristone) and the Food and Drug Administration (FDA).

The second case is Joseph Fischer vs the United States, which concerns a Capitol riot defendant who has appealed one of the counts of his indictment, obstruction of an official proceeding. At stake is the validity of the charge, which was applied to the rioters who stormed the Capitol and prevented Congress from certifying Joe Biden’s victory in the November 2020 elections. The crime is listed under the U.S. criminal code in Section 1512 of Title 18, which indicates in part C2 that “whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

Considered on its own, that description seems to clearly apply to the rioters who stormed the Capitol. The problem is that nearly all of Title 18 is intended to punish people who boycott or obstruct an investigation, from murdering a witness to hiding evidence. In fact, the title is called: “Tampering with a witness, victim, or an informant.” What’s more, it was approved as part of the 2002 Sarbanes-Oxley Act, aimed at prosecuting white-collar crimes. There are also several words that leave room for interpretation. The Supreme Court began the year by with a case about whether “and” indeed means “and” or whether it means “or,” so the debates can be endless.

The exact question that the Supreme Court has agreed to answer is: “Did the DC Circuit err in construing 18 USC § 1512 (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?”

The answer to that question not only affects Joseph Fischer, but also the dozens of other Capitol riot defendants who were charged on that count. At least 152 people were convicted at trial or pleaded guilty to obstruction of an official proceeding, and at least 108 have been sentenced, according to an Associated Press review of court records. It is one of the charges most frequently used to prosecute defendants who stormed the Capitol. In total, more than 1,200 people have been charged with federal crimes stemming from the riot, and more than 700 defendants have pleaded guilty.

Impact on Trump

And that’s not all. In the case on Trump’s efforts to overturn the results of the 2020 election, the former president is charged with four counts — two of which relate to obstruction of an official proceeding. In the indictment — the third of four to be filed against Trump — the former president is accused of conspiracy to defraud the U.S. government, conspiracy to obstruct an official proceeding, obstruction or attempted obstruction of an official proceeding and conspiracy to violate civil rights. Although Trump is not directly charged with the Capitol assault and his maneuvers were intended to obstruct the certification of Biden’s victory in a variety of ways, the second and third counts depend on what the Supreme Court says in Joseph Fischer vs the United States.

At the same time, since the Supreme Court is not expected to rule until June, at the end of the judicial year, the trial calendar is now more uncertain than it already was. This schedule indicated that Trump’s trial for election subversion would begin on March 4, but that now seems unlikely. On Wednesday, in another parallel development, Judge Tanya Chutkan decided to pause the investigation into the case, arguing that she no longer has jurisdiction while the DC Circuit Court of Appeals considers whether Trump is protected by presidential immunity, as alleged by his lawyers, who appealed a jury decision to the contrary. This issue could even reach the Supreme Court.

The Supreme Court has a six-to-three conservative supermajority. Three of the justices were appointed by Trump when he was president. In a judicial year marked by the four indictments against the former president (in New York, Florida, Washington and Georgia), it was clear that some of its derivatives would reach the top court. More cases against Trump may also escalate to the Supreme Court.

In Fischer’s case, the district judge initially agreed with his motion to dismiss the obstruction charge, saying that the law required defendants to take “some action with respect to a document, record or other object.” However, the Justice Department appealed to the District of Columbia appeals court, which said the article should apply in this case.

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