Will SCOTUS Bless the ‘Obstruction’ Tool for Speech Suppression?

The Department of Justice charged approximately 350 people under the obstruction statute for their role in the January 6 Capitol riot. One of them is Donald Trump. All of them, including Trump, may see those charges dropped based on an expected Supreme Court ruling. The ruling, if favorable, would also significantly protect First Amendment rights.

Between the start of Trump’s criminal “hush money” trial in New York and oral arguments in his immunity case, and before his two J6 cases go forward, the Supreme Court earlier this month heard oral arguments in the case of Fischer v. United States. Fischer (brought by defendant Joseph Fischer, a former police officer who is seeking to dismiss the charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory on J6) involves a federal law—Title 18, Section 1512(c)(2)—which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a felony and can be imprisoned for a maximum of 20 years.

The law, passed in the shadow of the Enron scandal and designed to address document fraud and altering evidence, nonetheless is being repurposed against J6 defendants, claiming their protest/riot obstructed the business of Congress. This is a novel use of the law and is being challenged in the instant case. Typically illegal or disruptive protesting is a misdemeanor punishable by only a year or less in prison.

Though not mentioned by name in the SCOTUS case, Trump enters the picture because he is charged with obstruction and conspiracy to obstruct, with the government claiming he worked in a variety of forms to overturn the 2020 election and make himself president for a second term. One aspect of this effort was Trump’s efforts to “exploit” the Capitol riot to his own ends, from which the obstruction charge arises. (Tellingly, Trump is not charged with incitement or insurrection, crimes of their own with very specific legal definitions.) Specifically, the indictment says that “Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.”

As Justice Alito put it: “What happened on January 6 was very, very serious,” but we need to figure out the “outer reaches of the statute.” Several other justices expressed concerns about people being charged with a felony for what Alito called “minor impediments,” such as if a heckler forced a proceeding to be delayed for a few minutes or if street protesters made it more difficult for members of Congress to enter the Capitol.

The concern appeared to be that people who engage in minimally disruptive First Amendment-protected political protests could be charged with a very serious felony, something that rubs raw against the 1A. Alito continued, “Yesterday protesters blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco. What if something similar to that happened all around the Capitol so…all the bridges from Virginia were blocked, and members from Virginia who needed to appear at a hearing couldn’t get there or were delayed in getting there? Would that be a violation of this provision?”

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Gorsuch asked. “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 for 20 years in federal prison?” (Note that Rep. Jamaal Bowman (D-N.Y.) pulled a fire alarm in the Capitol without punishment just before a vote; for protests inside the Court itself, the Justice Department has never charged any serious offenses.)

Justice Thomas asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?” The answer is no.

Justice Coney Barrett asked how to distinguish the attack on the Capitol from other actions that have disrupted official proceedings. “Tell me why I shouldn’t be concerned about the breadth of the government’s reading?” she asked. Barrett said she was “concerned” the law as applied to the J6 defendants might cover some conduct protected by the First Amendment. 

One of Fischer’s attorneys said the government’s reading of the obstruction statute will “chill” protected activities. “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.”

Changes are already underway in anticipation the Supreme Court will say J6 defendants cannot be charged with obstruction. Over the past several weeks, federal judges agreed to release three defendants who were serving prison terms because of the obstruction law, saying the defendants could wait at home as the court determined whether the law should have been used to keep them locked up.

Another 60 cases of those already serving time—including Jacob Chansley, the “QAnon shaman” of the fur-lined, horned headdress—could also be affected. Still, a reversal of the obstruction of an official proceeding charge would not affect the majority of the 1,350 defendants in J6 riot cases, most of whom are charged either with violent felony offenses or with misdemeanor violations such as trespassing or disorderly conduct at the Capitol.

Prosecutors have also adjusted; there are currently no defendants facing only the obstruction charge, meaning even if the obstruction law is removed, there would not be any cases that would dismiss entirely. Fischer, for example, faces six other charges in addition to obstruction. Some lower court judges have already signaled they would increase the sentences stemming from other charges if the obstruction count were not available to them. In other words, a judge could increase a defendant’s total time in prison by imposing consecutive, not concurrent, terms on misdemeanor charges.

Though there remains a convoluted interpretation of the law under which Trump could still be charged with obstruction even if SCOTUS rules in favor of Fischer and the charges against him are dismissed, it is likely that two of the four J6-related charges against Trump would have to be dropped if the Supreme Court rules in favor of Fischer in late June.

But never mind Trump. The larger issue here is taking away a nasty legal tool the government can use to suppress protest and speech. If the Court rules against Fischer, it leaves the window open to future misuses. For example, if protesters sitting in a road prevented a citizen from getting to jury duty or voting in a local election, they could potentially be charged under this law.

It would make it easy for the government to suppress dissent by finding someone inconvenienced by a protest as being involved in an “official proceeding.” With no limiting principle, as the Court is trying to establish in Fischer, the obstruction could be applied abusively as a dragnet by prosecutors to untold types of otherwise legal conduct.

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