The Supreme Court struggled Tuesday with the government’s case against 350 defendants from the Jan. 6, 2021, protest at the U.S. Capitol, with justices pondering how a law written in the aftermath of the Enron document-shredding scandal could be applied to those who delayed the certification of the 2020 presidential election.
The law criminalizes obstructing or impeding an official proceeding. The Biden administration says it goes beyond courtrooms and criminal investigations and covers Congress’ electoral vote count.
Republican-appointed justices repeatedly challenged the Justice Department’s aggressive use of the law against the Jan. 6 defendants. They questioned why the law wasn’t applied to rioters who attacked the federal courthouse in Portland, Oregon, in 2020 or Rep. Jamaal Bowman, who disrupted a critical vote in the House last year by pulling a fire alarm.
“Tell me why I shouldn’t be concerned about the breadth of the government’s reading” of the statute as it applies to Jan. 6 defendants, Justice Amy Coney Barrett said. “Do you think it’s plausible Congress would have written a statute so broadly?”
Justice Sonia Sotomayor said the actions on Jan. 6 were different.
“We have never had a situation before where there has been a situation like this with people attempting to stop a proceeding violently,” she said. “So I’m not sure what a lack of history proves.”
The case involves Joseph Fischer, a former police officer who attended the “Stop the Steal” rally on the Ellipse near the White House. He then left Washington but returned later to join the protest at the Capitol after the vote counting was suspended.
Fischer entered the Capitol and made it about 20 feet into the building. He said he was pushed by the crowd and bumped into a line of police officers who used pepper spray on him. He left the building after four minutes.
Federal authorities charged him with seven counts related to the Jan. 6 rally, but the one before the justices is Title 18 Section 1512(c), which reads:
“Whoever corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise 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.”
Congress enacted the law after the 2001 Enron scandal. The company shredded documents to hide business fraud.
Fischer is charged under the second section of the law, which Solicitor General Elizabeth Prelogar said was a catchall meant for all sorts of activities and official proceedings.
Jeffrey Green, Fischer’s attorney, countered that the law was aimed at evidence tampering, not riots.
“It is about the direct effect or, in some senses, an indirect effect but in a limited way on evidence that is to be used in the proceeding,” he said.
A U.S. district judge in the District of Columbia sided with Fischer and dismissed the charge, though judges in other Jan. 6 cases allowed the law to be used.
The U.S. Circuit Court of Appeals for the District of Columbia sided with the Biden administration.
Ms. Prelogar said some 350 cases included the obstruction charge.
Justice Brett M. Kavanaugh noted that prosecutors brought six other charges against Fischer and wondered whether a further charge was overkill.
“Why aren’t those six counts good enough?” he asked.
Ms. Prelogar said the obstruction charge gets to the core of the protest at the Capitol.
“Those counts don’t fully reflect culpability of petitioner’s conduct on Jan. 6,” she said.
“One of the root problems with [Fischer’s] conduct is that he knew about that proceeding, he had said in advance of January 6th 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 January 6th with that intent in mind and took action, including assaulting a law enforcement officer.”
She argued that the statute doesn’t apply just to evidence. She said it had been used against people who revealed the identity of an undercover officer and who tipped off the subject of a grand jury.
Other justices questioned why the statute wasn’t applied to other protesters of various proceedings, including the high court’s arguments.
“There have been many violent protests that have interfered with proceedings,” Justice Clarence Thomas said.
The obstruction charge carries a maximum penalty of up to 20 years in prison. Ms. Prelogar said some 50 cases have gone to sentencing with the obstruction charge as the top-level conviction, and the average sentence has been 26 months in prison.
Some legal analysts have said the case could affect some of the charges special counsel Jack Smith has brought against former President Donald Trump. Mr. Trump faces the same charge at issue in Fischer’s case.
Mr. Trump’s name was not mentioned, but the justices wondered why other high-profile cases haven’t been charged under this section of law.
The Supreme Court is not expected to decide Fischer’s case immediately but will issue a ruling by the end of its term in June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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