Supreme Court skeptical of feds’ use of obstruction statute in Jan. 6 prosecutions

The Supreme Court’s conservatives appeared skeptical Tuesday of the way federal prosecutors have deployed a felony charge devised in the aftermath of the 20-year-old Enron financial scandal against about 350 rioters convicted or accused of storming the Capitol on Jan. 6, 2021.

However, after nearly two hours of argument on the subject, it remained unclear whether the justices had a consensus on how to narrow the interpretation of the law, which prohibits obstructing congressional proceedings. It seemed possible that the court could settle on a view of the law that would preserve the vast majority of the cases the Justice Department filed that used the obstruction statute to level a serious felony charge at a Jan. 6 defendant.

Tuesday’s arguments were a crucial moment for the government and its three-year-long campaign to charge many of the roughly 2,500 people who breached the Capitol that day, including hundreds who assaulted police in an effort to disrupt Congress’ session to certify Joe Biden’s victory in the 2020 election. The court’s ruling, expected by late June, may also have ramifications for Donald Trump, who is facing two obstruction charges brought by special counsel Jack Smith as part of a broader indictment related to the then-president’s effort to subvert the 2020 election.

Trump was not mentioned during Tuesday’s arguments.

Several of the Republican-appointed justices appeared to question whether the Justice Department has been evenhanded in its prosecution of the Jan. 6 defendants, echoing claims that they are being treated far more harshly than other protesters who have disrupted congressional proceedings or even arguments at the Supreme Court.

“Would a heckler in today's audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify, and for 20 years in prison?” Justice Neil Gorsuch asked, citing the maximum sentence available under the obstruction provision. He appeared to refer to an episode last year when Rep. Jamaal Bowman (D-N.Y.) pulled a fire alarm in a Capitol office building, causing an evacuation during a government funding vote. He later pleaded guilty to a misdemeanor charge.

“Let's say that today five people get up one after the other and they shout either, ‘Keep the January 6 insurrectionists in jail!’ or ‘Free the January 6 patriots!’ And as a result of this, our police officers have to remove them forcibly from the courtroom. And let's say we have to delay the proceeding for five minutes,” Justice Samuel Alito hypothesized.

Speaking for the Justice Department, Solicitor General Elizabeth Prelogar said those sorts of minimal, brief interruptions wouldn’t qualify as “obstruction” under the statute, although Alito quickly countered that the law also prohibits conduct that “impedes” a proceeding.

Prelogar said there were no examples in history that mirror the attack on the Capitol, which she described a direct assault on a constitutional process. She also noted that of the more than 1,350 people charged in connection with the riot, only about a quarter faced the obstruction charge, in part because of what she described as the difficult hurdles of proving that rioters were both aware of the congressional proceedings and explicitly intended to disrupt them. She called that evidence of intent a “dividing line” between those Jan. 6 defendants charged with obstruction and those facing misdemeanor penalties.

For many of the justices, it was the first time they have spoken publicly in detail about the events of Jan. 6.

Justice Clarence Thomas described it as a “violent protest” and contended that there have been “many” such demonstrations “that have interfered with proceedings.” He wondered whether the Justice Department had ever deployed the obstruction statute to deal with them.

“What happened on January 6th was very, very serious, and I'm not equating this with that,” Alito said before saying it was important to consider some hypotheticals to determine the “outer reaches” of the government’s interpretation of the law. He went on to reference a Gaza-focused protest Monday blocking traffic on San Francisco’s Golden Gate Bridge and to ask if something similar done on Washington-area bridges and aimed at preventing a Congressional hearing could be prosecuted as obstruction of Congress.

Justice Sonia Sotomayor argued that the Justice Department’s novel use of the obstruction law to cover a violent protest was justified by the unique nature of the events of that day.

“We've never had a situation before where there's been a situation like this with people attempting to stop a proceeding violently. So, I'm not sure what the lack of history proves,” she said.

“I’m not sure that that’s true,” said attorney Jeffrey Green, who argued for Jan. 6 defendant Joseph Fischer, who is contesting his indictment. Green pointed to incidents in Portland, Oregon, in 2020, when protesters set fires and besieged the federal courthouse for weeks.

Green also said a broad interpretation of the obstruction statute would cause people to reconsider all sorts of demonstrations.

“It’s going to chill protected activities. People are going to worry about the kinds of protests they engage in, even if they're peaceful, because the government has this weapon,” Green said.

The arguments Tuesday turned on a fairly arcane interpretation of a criminal obstruction of justice provision Congress passed in 2002 to correct perceived loopholes dealing with acts that could interfere with active or expected federal investigations. Jan. 6 defendants say it was only meant to cover classic types of evidence tampering, such as document shredding. But prosecutors say Congress’ goal after the Enron scandal was to pass a “catch-all” obstruction statute that would include many different ways of impeding legal or congressional proceedings — including kinds they couldn’t even envision at the time. That “omnibus“ goal, they said, is reflected in the broad wording of the obstruction law itself.

Most judges handling Jan. 6 cases have agreed, reading the provision broadly as covering any type of effort to obstruct or impede an official proceeding. But one, U.S. District Judge Carl Nichols, said the obstruction has to directly affect evidence, such as through document shredding, forgery or other document-focused actions. In the context of Jan. 6, that could limit such charges to instances when prosecutors can prove the defendant knew electoral votes were to be delivered or tallied and intended to disrupt that process.

Chief Justice John Roberts seemed to agree with the defendants’ position that the provision fits into a framework of obstruction laws Congress has passed and was intended to close a specific loophole, rather than apply to a wide range of obstructive conduct.

Justices Ketanji Brown Jackson and Amy Coney Barrett seemed to offer a middle ground position, suggesting that a narrow reading of the obstruction law might still encompass the actions of many rioters on Jan. 6 — since those rioters sought to block Congress’ access to the electoral vote certificates. That reading might also preserve related charges against Trump, who prosecutors say sought to introduce fraudulent electoral vote certificates to Congress as part of his scheme to overturn the 2020 election.

Green seemed to go even further in his argument, contending that merely trying to delay the arrival or count of the electoral votes wouldn’t be enough for a conviction.

“Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document,” he said.

Prelogar told the justices prosecutors could prove in many cases that defendants knew that electoral votes were to be tallied at the Capitol that day, but proving that any individual protester’s actions were aimed at the actual certificates would be challenging. “That would be a difficult standard for us to satisfy,” she said.

Both Sotomayor and Justice Elena Kagan sounded unpersuaded by arguments that Congress wasn’t intending to sweep in such a wide range of conduct that might interfere with a proceeding.

“They wanted to cover every base, and they didn’t do it in a logical way, but they managed to do it,” Sotomayor declared.

As Alito chastised the Justice Department for going too easy on some recent outbursts at the Supreme Court, he overstated his case by saying, “I don't think any one of those protesters has been sentenced to even one day in prison.”

In fact, in 2017, a judge gave brief jail sentences to five people who disrupted a 2015 high court argument by shouting in protest of the Citizens United campaign finance decision. Four were sentenced to a weekend in jail, while one got two weekends behind bars, the Washington Post reported.

The outcome of the case argued Tuesday could affect Trump, who has been charged with two counts of obstruction by special counsel Jack Smith, over Trump’s own involvement in efforts to prevent Congress from certifying the election.

A Justice Department attorney set to argue at the high court next week against Trump’s claim of immunity from prosecution in that case, Michael Dreeben, was present in the courtroom and intently took notes as justices grilled Prelogar about the government’s broad view of the obstruction provision.

Smith insisted in a court filing last week that even a complete loss for the government in the case heard Tuesday would not undermine the obstruction charges Trump faces because prosecutors can prove he intended to interfere with the tallying of electoral votes.