The US Supreme Court is divided over felony obstruction in January 6 Capitol attack case

The conservative justices’ skepticism about the application of that law may benefit Donald Trump

Asalto al Capitolio
Donald Trump's supporters during the attack on the Capitol on January 6, 2021.Shannon Stapleton (REUTERS)
Miguel Jiménez

Donald Trump’s name was not uttered on Tuesday in the U.S. Supreme Court, but his presence could be felt behind the imposing columns. The justices were discussing the validity of applying the crime of obstruction of an official proceeding to the attack on the Capitol. The official act interrupted was the certification of Joe Biden’s victory in the 2020 presidential election. The justices have been divided on the interpretation of the law. The most skeptical voices have been those of the conservative justices, who have a six-to-three majority, so the ruling may end up benefiting Trump. Two of the four crimes with which Trump is charged in the Washington trial for electoral interference have to do with this law.

The oral argument hearing is a dialectical fencing match in which the nine Supreme Court justices question and rebut the lawyers for the two parties. The justices arrive at the hearing with the case under consideration, and their questions often — but not always — reveal what their opinion is on the matter. The Court then debates in closed session and drafts the ruling and the judges’ individual concurring or dissenting opinions.

In Tuesday’s session, the court was considering an appeal by Joseph Fischer, a defendant charged with several counts of participating in the January 6 attack on the Capitol. The charge in question was the obstruction of an official proceeding. The conservative judges have questioned whether an article in a law designed to punish the destruction of evidence in financial crimes can be applied to what they have called political “protests.” They claim that doing so means granting the Department of Justice a free hand to prosecute whichever protests it deems appropriate. Some implied that this rule had not been applied in that sense until now.

“For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses,” said Justice Samuel Alito, who along with Clarence Thomas is one of the most conservative justices. Thomas seconded Alito with similar questions: “There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past?”

Solicitor General Elizabeth Prelogar replied, “I can’t give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring with all of the elements like intent to obstruct because I’m not aware of that circumstance ever happening prior to Jan. 6,” the date when the assault on the Capitol took place in 2021.

Conservative justice Neil Gorsuch was also skeptical about it. “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” That last question was a loaded one. 20 years is the maximum penalty under the law, and Democratic Congressman Jamaal Bowman pulled the fire alarm in the midst of the chaos that gripped the House of Representatives a few months ago. He eventually pleaded guilty to a misdemeanor and accepted a $1,000 fine.

A literal interpretation

The wording of the article appears to cover the disruption of a proceeding such as the certification of Biden’s victory, but the place where it sits, among rules intended to prevent the destruction of evidence, leads one to doubt the spirit in which it was intended. The progressive justices have stuck to the letter of the law. Justice Elena Kagan stressed that the text does not say to convict someone who “otherwise spoils evidence,” but “who otherwise obstructs a proceeding.”

Elizabeth Prelogar also stuck to the letter of the law. “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. That is, they obstructed Congress’ work in that official proceeding,” disrupting the peaceful transfer of power, the Solicitor General argued.

In contrast, Jeffrey Green, the defendant’s counsel rejected the literal interpretation: “The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxley-based, Enron-driven evidence tampering statute is not one of them.”

When Green said that he did not understand how the Justice Department could seek to expand the scope of the article that deals with the obstruction of an official proceeding to cover something it has never covered before, Justice Sonia Sotomayor replied that the assault on the Capitol had no precedent either. “We’ve never had a situation before ... with people attempting to stop a proceeding violently,” she said.

Sotomayor used the analogy of a sign posted in a theater that says you will be removed if you photograph or record the actors, or otherwise disrupt the performance. She argued that “if you start yelling, I think no one would question you could be kicked out under this policy, even though yelling has nothing to do with photographing or recording.”

Some of the moderate conservative judges, who have not given as many clues about their position, are in the middle. A ruling in the case is expected in June.

The crime in question is regulated in the US criminal code in 18 US Code section 1512, which states in (c)(2) 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.” The title of that provision is “Tampering with a witness, victim, or an informant.” That section was passed as part of the Sarbanes-Oxley Act of 2002, intended for prosecuting white-collar crime. Moreover, there are several words that leave room for interpretation.

In the Washington case against Donald Trump for attempting to alter the outcome of the 2020 election, the special counsel is charging him with four crimes: conspiracy to defraud the U.S. government, conspiracy to obstruct an official proceeding, obstructing or attempting to obstruct an official proceeding, and conspiracy to violate civil rights. The second and third offenses may depend on what the Supreme Court decides in this case. A ruling dismissing the Fischer indictment could make it difficult, but not impossible, for those two charges against Trump to succeed.

The Fischer ruling will affect dozens of those convicted in the January 6 attack on the Capitol. At least 353 defendants have been charged with corruptly obstructing, influencing or impeding an official proceeding, or attempting to do so, according to a recent Justice Department tally. It is one of the most common criminal charges used to prosecute those who stormed the Capitol.

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