Supreme Court Divided on Law for Prosecuting Jan. 6 Rioters
WASHINGTON — A divided Supreme Court heard arguments Tuesday on whether to throw out criminal charges of obstructing an official proceeding against Jan. 6 defendants, including former President Donald Trump.
About 350 persons who invaded the Capitol during the Jan. 6, 2021, insurrection have been charged or convicted under the law.
Attorneys for one of them argued prosecutors applied the charge incorrectly because it was based on a law passed by Congress as a response to the 2001 Enron Corp. financial accounting scandal.
The law was intended to punish corporate executives who try to protect themselves during government investigations by destroying evidence. Enron executives shredded potentially incriminating documents.
The Jan. 6 defendants are accused of breaking into the Capitol to help Trump overturn the 2020 presidential election by interrupting Congress’ certification of the Electoral College vote.
“It covers the myriad forms of obstruction of an official proceeding,” U.S. Solicitor General Elizabeth Prelogar told the Supreme Court.
The relevant part of the law says, “Whoever corruptly,
- 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
- 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.”
“Official proceeding” refers to procedures by federal judges, Congress, federal government agencies and regulators of insurance businesses.
“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,” Prelogar said. “That is, they obstructed Congress’ work in that official proceeding.”
The hearing was based on an appeal by Joseph Fischer, who during the Jan. 6 riot was both a Pennsylvania police officer and a protester accused of pushing his way into the Capitol.
The seven-count indictment against him says he encouraged rioters by yelling “charge” while shouting an obscenity.
His attorneys say he was pushed by the crowd and was inside the Capitol for only four minutes. Other charges against him are assaulting a police officer and disorderly conduct.
Jeffrey Green, his attorney, said the obstructing an official proceeding charge was too broadly worded to be a constitutional basis for prosecuting protesters. It could be used to prosecute non-violent political protesters, he said.
Several conservative justices questioned whether prosecutors might be overreaching by charging the protesters with obstruction of an official proceeding.
Justice Neil Gorsuch asked whether some protesters could face 20 years in prison under the law for heckling or for sit-ins outside courthouses that force other persons to walk around them.
Prelogar called normal non-violent protests too “minimal” for prosecution, compared to the seriousness of invading the Capitol.
Justice Sonia Sotomayor largely agreed the severity of the Jan. 6 protest was different than most protests.
“We’ve never had a situation like this before where a group of people tried to stop a proceeding violently,” Sotomayor said.
She also expressed reservations about the language of the obstruction of an official proceeding law, saying that Congress “wanted to cover every base and they didn’t do it in a logical way.”
About 1,380 people have been charged with crimes because of the Jan. 6 protest.
One of them is Trump, who has pleaded not guilty. He is scheduled for trial in Washington, D.C.
The Supreme Court’s ruling is expected in June.
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