Supreme Court hears arguments over obstruction law used against January 6 rioters

The Supreme Court's three liberal justices appeared in early questioning to be lined up in favor of the Justice Department’s position that the federal obstruction law being challenged Tuesday is broad enough to include the rioters’ conduct on January 6, 2021. 

The law, Justice Elena Kagan said, could have been written by Congress to limit its prohibition to evidence tampering. But, she stressed, "it doesn't do that."

Kagan and Justices Sonia Sotomayor and Ketanji Brown Jackson have been pressing Joseph Fischer's attorney, Jeffrey Green, on the plain text of the law — embracing the notion of "textualism," or reading the law for its plain meaning without considering legislative history and other factors. If that holds, it suggests they are supportive of the Justice Department's position.

They promoted this theory based on the text of the statute itself.

Jackson similarly noted that the language in the statute “does not use the term ‘evidence’” but rather “uses the term ‘official proceeding,’” which is defined as including a congressional proceeding.

Lawyers for one of the January 6 defendants have argued that the law applies only to tampering with evidence, not disrupting a proceeding, like the joint session of Congress on January 6. Fischer breached the US Capitol that day and prosecutors say his involvement in the riot obstructed the Congress’ certification of the 2020 election, which was delayed for several hours.

Justice Sonia Sotomayor floated a hypothetical comparing the obstruction law at the center of the challenge to the rules a theater might set for its audience.

Sotomayor's question for Joseph Fischer’s attorney Jeffrey Green suggested she was sympathetic to the Justice Department’s argument for a broad reading of the law that would cover an interruption of Congress’ certification proceeding.

Sotomayor told Green to imagine that there is a sign on a theater telling audience members that they will be kicked out “If they photograph or record the actors or otherwise disrupt the performance.”

“If you start yelling, I think no one would question that you can be expected to be kicked out under this policy,” Sotomayor said.

Justice Clarence Thomas kicked off the questioning Tuesday by asking the attorney representing Capitol riot defendant Joseph Fischer a technical query about how to read two provisions of the law at issue together.

The first section of the law bars people from tampering with documents and records.

The second section, which is at the center of the case, prohibits people from "otherwise" obstructing an official proceeding. The question is whether that second section should be read as part of or in opposition to the first.

Thomas appeared to be giving Fischer's attorney a chance to respond to the government's position that the second section is a catchall that should cover the actions that occurred on January 6, 2021.

"You could just as easily say that Congress is really concerned about things that obstruct influence or impede official proceedings," Thomas said.

Arguments are underway at the Supreme Court in Fischer v. US, a case that could reduce criminal charges lodged against more than 350 people who took part in the attack on the US Capitol on January 6, 2021.

At issue is a charge filed by prosecutors in several of those cases that prohibits people from “obstructing” an “official proceeding.”

The case also implications for former President Donald Trump, who was charged with the same crime in special counsel Jack Smith’s election subversion case.

Jeffrey Green, who is representing a former Pennsylvania police officer charged in the Capitol attack, is up first. He is arguing that the law at issue in the case was intended to deal with evidence tampering, not riots.

Supreme Court Justice Clarence Thomas is in attendance Tuesday after he did not attend oral arguments Monday and provided no explanation for his absence.

Chief Justice John Roberts announced Monday that Thomas would not take part shortly after the court sat for arguments in a public corruption case. In the past, the court has often provided some explanation, such as noting that a justice was feeling ill. Sometimes, those justices take part in arguments remotely.

Thomas, 75, missed several arguments in 2022 after being diagnosed with an infection.

The Supreme Court did not respond to a request for additional information about Thomas’ absence on Monday, when his colleagues heard arguments in two cases.

The Supreme Court’s decision over whether a federal obstruction law can be used to prosecute January 6, 2021, rioters could have significant ramifications for former President Donald Trump, who was charged with the same criminal offense.

Special counsel Jack Smith charged Trump with violating a federal law enacted in 2002 that prohibits people from obstructing an “official proceeding.” The charge can add up to 20 years to a prison sentence.

Trump would almost certainly use a decision against the government to fuel criticism he has directed at prosecutors as he has tried to reframe the January 6 attack as a “beautiful day.”

Trump would almost certainly use a win for Joseph Fischer, who brought the case to the high court, to try to further undermine the Justice Department. Depending on how the court rules, he might also attempt to have that charge thrown out in his own case.

The special counsel appears eager to head that argument off. In a filing last week, Smith argued the obstruction charge should stick against Trump even if Fischer wins.

“The Trump charges probably survive almost no matter what the court does in Fischer,” said Randall Eliason, a former federal prosecutor and George Washington University law professor.

The Supreme Court will hear arguments Tuesday from a former Pennsylvania police officer who stormed the US Capitol on January 6, 2021, in a case that could undermine federal charges against more than 350 rioters.

Joseph Fischer told the justices that by the time he arrived at the Capitol on January 6, 2021, Congress had already recessed. His lawyers said Fischer spent less than four minutes inside the building and that he advanced fewer than 25 feet.

Prosecutors paint a different picture. They say Fischer warned his police chief by text that the day might get violent. He texted that protesters should drag Democrats “into the street and have a mob trial.” Fischer captured a video on his cell phone in which he can be heard yelling “charge!” before he ran into the Capitol, prosecutors say.

Weeks after the attack, a grand jury returned a seven-count indictment against Fischer that included charges of civil disorder; assaulting, resisting or impeding officers; and the obstruction charge. The case before the Supreme Court involves only that last charge.

The US Court of Appeals for the DC Circuit combined Fischer’s case with two others and ruled that the charge could be used against January 6 defendants – siding with 14 of 15 district court judges who ruled the same way. All three defendants appealed to the Supreme Court, but the justices granted only Fischer’s case. The other two will likely be summarily resolved after Fischer.

Exactly how much impact the court’s ruling may have on other January 6 cases is unclear. Most defendants who were convicted of the obstruction charge and sentenced to prison were also convicted of additional felony or misdemeanor charges, according to a CNN analysis. The average sentence in those cases was just over four years, the analysis shows – far less than the 20-year maximum the obstruction count carries.

Read more about the case here.

The Supreme Court will hear oral arguments this morning to consider whether part of a federal obstruction law can be used to prosecute some of the rioters involved in the January 6, 2021, attack on the US Capitol.

How the Supreme Court defines how the obstruction law can be used related to the Capitol attack could impact hundreds of criminal cases, even the pending case against former President Donald Trump, who is also charged with obstructing an official proceeding.

The charge at issue in the Supreme Court case stems from a law Congress enacted in response to a series of corporate accounting scandals, including the 2001 Enron debacle. That law makes it a felony to “corruptly” alter, destroy or mutilate a record with the intent of making it unavailable for use in an “official proceeding,” or to “otherwise” obstruct, influence or impede such a proceeding.

The Justice Department has used the charge as the cornerstone of many of the more serious Capitol riot cases, in which defendants were outspoken about their desire to stop Congress’ certification of President Joe Biden’s Electoral College win or were instrumental in the physical breach of the Capitol.

Read more about the case and what is at stake.