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Right-Wing SCOTUS Sounds Skeptical of Statute Used to Charge Capitol Attackers

The justices are trying to figure out how to let the rioters “off the hook on the obstruction charges,” said one report.

Supporters of former President Donald Trump take over balconies and inauguration scaffolding at the United States Capitol on January 6, 2021 in Washington, D.C.

Conservative justices of the United States Supreme Court seemed ready to narrow the interpretation of a federal statute relating to the obstruction of official proceedings, an action that, if they indeed do so, will affect a plethora of cases relating to the attack on the Capitol on January 6, 2021 — including possibly the case relating to Donald Trump’s attempt to usurp the 2020 presidential election results.

The final ruling on the case, which specifically deals with a man named Joseph Fischer who was part of the Capitol attack, will likely be published sometime in June, the time when most Supreme Court case decisions are released.

Fischer v. United States deals with a portion of a federal statute that reads:

(c) Whoever corruptly—

(1) 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

(2) 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.

At issue is the interpretation of the second subsection in the statute in relation to the first. Fischer’s lawyer, Jeffrey Green, argued to the Court that the word “otherwise” means other ways of dealing with specific objects that the first subsection goes into detail listing — in other words, that a physical document or object still had to be altered with, tampered or destroyed in order for a proceeding to be “otherwise” obstructed, influenced or impeded under the statute.

That extremely narrow reading defies common grammatical interpretation of the statute, and the justices seemed somewhat wary of going “all in” on Green’s version of how the statute should be read. However, the Court’s six conservative justices also appeared ready to narrow the statute at least somewhat, to an extent that could significantly affect cases relating to the Capitol attack.

Justice Neil Gorsuch, for example, questioned Solicitor General Elizabeth Prelogar, who was arguing on behalf of the Department of Justice (DOJ), to what extent the statute could be used in other circumstances.

“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?” Gorsuch said, appearing to reference a recent incident in Congress involving Rep. Jamaal Bowman (D-New York).

Justice Samuel Alito also offered up a hypothetical, asking what would happen if, during the hearing, “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!'”

Prelogar eventually had to concede that the broadest interpretation of the statute could technically include peaceful protests, but argued that the DOJ was less apt to use the statute in those situations. Unprecedented events like the January 6 attack on the Capitol, Prelogar added, were closer to the standard for charging individuals with violating the law.

Justice Sonia Sotomayor, a member of the liberal bloc of justices on the Court, appeared willing to accept that approach, also noting that the attack on the Capitol was “a situation” unlike any other in U.S. history where “people attempt[ed] to stop a proceeding violently.”

But for the most part, the conservative justices’ skepticism was more evident.

Most January 6 defendants have been charged with the “obstruction of an official proceeding” statute at the center of this case. If the Supreme Court produces an eventual opinion that narrowly tailors the statute to only include certain circumstances, it could force the DOJ to drop many of those charges on January 6 defendants.

Notably, former President Donald Trump, whose speech near the White House on January 6, 2021, was the catalyst for the attack by his mob of loyalists, has also been charged under the statute in question by DOJ special counsel Jack Smith as part of the four-count indictment regarding Trump’s attempts to overturn his 2020 election loss to President Joe Biden. If the Court narrows the statute in a significant way, it could result in Smith having to drop his indictment from four charges to possibly two.

According to an analysis of the proceedings from Ian Millhiser, senior correspondent at Vox who discusses issues relating to democracy and other legal matters, the conservative justices appeared ready to lay waste to many of the charges against January 6 defendants.

“A majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome,” Millhiser predicted in a column for the website.

Other observers of the Supreme Court’s hearing on Tuesday also expressed similar views about how the case will be decided.

It was “unclear how [the] ruling will affect those Trump counts in DC,” and it appeared that two justices, Amy Coney Barrett and Ketanji Brown Jackson were “possibly working on a compromise,” Roger Parloff, senior editor at Lawfare, said in posts on X.

“But 5 justices seem implacably opposed to [the] DOJ view” of the statute, Parloff added.

Elie Mystal, justice correspondent for The Nation, also expressed negative opinions about the Court’s eventual decision.

“The six conservative justices are absolutely trying to figure out how to throw out the obstruction charges against their cousins and wives and pledge brothers who attacked the Capitol on January 6,” Mystal said, predicting that the Supreme Court would render a 6-3 decision “let[ting] J6 rioters off the hook on the obstruction charges.”