The Supreme Court on Tuesday heard oral arguments on whether part of an obstruction law can be used to prosecute hundreds of defendants involved in the Jan. 6, 2021, riot at the U.S. Capitol, a case that also has implications for former President Donald Trump.
Former Pennsylvania police officer Joseph Fischer is appealing a lower court’s ruling denying his bid to evade a federal charge of corruptly obstructing an official proceeding, or more specifically, the congressional certification of President Joe Biden’s victory over Trump that prompted thousands of protesters to descend on the Capitol three years ago.
The nine justices on Tuesday appeared divided along ideological lines, with a majority appearing wary of siding completely with the Biden Justice Department.
Six members appointed by Republican presidents, including three by Trump, raised pointed questions about how the Justice Department applied a provision from the 2002 Sarbanes-Oxley Act, which was passed following the fraud scandal at now-defunct energy company Enron, to Fischer’s case. The provision carries a maximum imprisonment of 20 years.
For Fischer’s legal strategy, much of the case hangs on the use of the phrase “otherwise” in the language of the federal criminal statute at hand, which makes it a crime for anyone who “otherwise obstructs, influences, or impedes any official proceeding.”
Fischer’s attorney Jeffrey Green conceded the entire phrase deals with evidence tampering, a theory that George W. Bush appointee Justice Samuel Alito said might be “biting off more than you can chew.”
“One might say it can certainly be read the way the government reads it,” Alito said, and that “might even be the more straightforward reading.”
Later on, during the oral argument, Alito and Justice Neil Gorsuch, a Trump appointee, raised more hypothetical questions that appeared to reference recent headlines to ask whether other demonstrations, such as a pro-Palestinian protest that blocks the Golden Gate Bridge, might trigger charges under the law.
Gorsuch asked whether a sit-in that disrupts a trial or someone pulling a fire alarm that delays a congressional vote would qualify for a 20-year prison sentence. Justice Department Solicitor General Elizabeth Prelogar attempted to lay out other elements of the hypothetical crime, such as the corrupt intent or whether it was a meaningful disruption of an official proceeding. The Trump appointee pushed back at her efforts to distinguish those circumstances from how the department advocates for the statute to be interpreted for Fisher.
Justice Clarence Thomas asked Prelogar whether the government had ever used the 2002 provision in this way before.
“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?”
Prelogar argued the law has been consistently applied beyond merely evidence tampering.
“We have focused on things like the defendant’s threats of violence, willingness to use violence … preparation for violence, bringing tactical gear or paramilitary equipment to the Capitol,” Prelogar said, appearing to explain why the department has only used the charge on around 350 defendants out of more than 1,350 who have faced charges for actions related to the riot.
But Justice Brett Kavanaugh, a Trump appointee and a key swing vote for the high court, questioned the government’s position by noting Fisher was charged with six other crimes related to the riot.
“Why aren’t those six counts good enough from the Justice Department’s perspective?” Kavanaugh asked.
Chief Justice John Roberts was similarly situated in the skeptical group, suggesting the DOJ shouldn’t read the obstruction statute as a “catchall” for every single action taken by defendants charged under the provision.
“You can’t just tack it on and say, ‘Look at it as if it’s standing alone,'” Roberts said. “Because it’s not.”
Justice Amy Coney Barrett seemed open to taking a middle ground. She questioned whether the statute could be used to charge defendants for trying to “obstruct the arrival of the certificates arriving to the Vice President’s desk for counting,” saying the defendants would still be interfering with evidence in that hypothetical.
Prosecutors say Fischer sent text messages before the Jan. 6 riot, including a text that said his former police chief may need “to post my bail” because the protest “might get violent.” At one point amid the riot, the former officer called on those around him to “hold the line” as he was part of a crowd that pushed against Capitol Police officers, according to his criminal affidavit.
The former police officer, who contends he was only inside the Capitol for a few minutes after he was pushed into the police line by the crowd, is asking the justices to throw out the obstruction charge but not the other charges he faces.
The Supreme Court’s three Democratic-appointed justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, appeared during early questioning to favor the Justice Department’s position that the obstruction law being challenged is broad enough to include defendants from the day of the riot.
Kagan told Fischer’s attorney there were “multiple ways” in which Congress could have made clear that the law applies “only in the sphere of evidence spoliation. But it doesn’t do that.”
Sotomayor compared the law to a sign posted in a theater that reads: “You will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance.”
“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,” Sotomayor said.
In a similar fashion to Barrett, Jackson appeared to want to find a middle-ground approach by saying the statute could apply to conduct that would obstruct an official proceeding “insofar as it is directed to preventing access to information or documents or records or things that the official proceeding will use.”
More than 300 defendants have been charged with violating the obstruction statute, and more than 50 have pleaded guilty to the count, according to a Washington Examiner review of court records.
Trump has been charged with two counts under the same law, conspiracy to obstruct an official proceeding and obstruction of an official proceeding, in special counsel Jack Smith’s 2020 election subversion case. He has pleaded not guilty to both of these counts, along with two others that arose from his actions in the weeks following the 2020 election.
Smith has sought to pour cold water on the notion that Trump could shake off two charges against him in his Washington, D.C., federal criminal case, one of two indictments the special counsel has levied against him as he fights two other state-level indictments amid the 2024 presidential campaign.
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“Whether the Court interprets [that provision] consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in Fischer, the Section 1512 charges in this case are valid,” Smith wrote.
The Supreme Court will hear another major case next week on April 25 in Trump’s assertion of presidential immunity from prosecution in the election subversion case brought against him by Smith.
