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 from the nation’s highest court. Next week, the justices will hear arguments over whether the former president and presumptive nominee for the 2024 Republican nomination has “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.
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It was not clear after more than 90 minutes of arguments precisely where the court would land in Fischer's case. Conservative justices Samuel Alito and Neil Gorsuch appeared most likely to side with Fischer, while liberal Justices Elena Kagan and Sonia Sotomayor seemed more favorable to the Justice Department’s position.
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Justices Amy Coney Barrett and Ketanji Brown Jackson, a former federal public defender, expressed interest in more of a middle-ground outcome that 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 that have interfered with proceedings,” Justice Clarence Thomas said. He was back on the bench Tuesday after an unexplained one-day absence.
Gorsuch appeared to be drawing on actual events when he 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 the Capitol complex to delay a vote in Congress.
Alito, suggesting the government's reading of the law is too broad, asked whether the charge could be applied to people who disrupted the day's court session by shouting “Keep the January 6 insurrectionists in jail" or ”Free the January 6 patriots."
He hastened to add, “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 anti-obstruction provision of a law that was enacted in 2002 in response to the financial scandal that brought down Enron Corp. can be used against Jan. 6 defendants.
Lawyers for Fischer, the former North Cornwall Township police officer, argue that the provision was meant to close a loophole in criminal law and discourage the destruction of records in response to an investigation. Until the Capitol riot, lawyer Jeffrey Green told the court on Fischer's behalf, the provision “had never been used to prosecute anything other than evidence tampering.”
Fischer “was not part of the mob” that forced lawmakers to flee the House and Senate chambers, Green wrote in court papers, noting that he entered the Capitol after Congress had recessed. The weight of the crowd pushed Fischer 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 he intended to 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 said. "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.
The obstruction charge is among the most widely used felony 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.
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Roughly 170 Jan. 6 defendants have been convicted of obstructing or conspiring to obstruct the Jan. 6 joint session of Congress, including the leaders of two far-right extremist groups, the Proud Boys and Oath Keepers. A number of defendants have had their sentencings delayed until after the justices rule on the matter.
Some rioters have even won early release from prison while the appeal is pending over concerns that they might end up serving longer than they 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 attached to a Confederate battle flag as 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 into his prison term while awaiting the Supreme Court’s ruling.
Most lower court judges who have weighed in have allowed the charge to stand. Among them, U.S. District Judge Dabney Friedrich, a Trump appointee, wrote that “statutes often reach beyond the principal evil that animated them.”
But U.S. District Judge Carl Nichols, another Trump appointee, dismissed the charge against Fischer and two other defendants, writing that prosecutors went too far. A divided panel of the federal appeals court in Washington reinstated the charge before the Supreme Court agreed to take up the case.
A decision is expected by late June.
More than 1,350 people have been charged with Capitol riot-related federal crimes. Approximately 1,000 of them have pleaded guilty or been convicted by a jury or judge after a trial.
Associated Press writers Alanna Durkin Richer in Washington and Michael Kunzelman in Silver Spring, Maryland, contributed to this report.
