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

Chief Justice John Roberts, a key vote in this case, appeared skeptical of the Justice Department's position, suggesting that the January 6 defendant in the case might have the better reading of the law.

Prosecutors say the provision at issue bars people from "obstructing" an official proceeding, and that the prohibition is a "catchall" that can cover all sorts of conduct — such as storming the US Capitol.

But Roberts focused on another way of the reading the law, as influenced by the words before it. And in this case, those words deal with evidence tampering — not riots.

Roberts said the DOJ shouldn't read the two provisions as though they are standing alone.

Justice Clarence Thomas quizzed the lawyer representing the Justice Department about whether the government has ever used the law this way before.

"There have been many violent protests that have interfered with proceedings," Thomas said. "Has the government applied this provision to other protests in the past?"

The question appeared to be a skeptical one, suggesting that the Justice Department might be applying the 2002 law at issue in the case in a way that's not uniform. Some conservatives have argued the Justice Department is treating Capitol rioters far harsher than people arrested at protests in 2020, for instance.

Solicitor General Elizabeth Prelogar said that the Justice Department has consistently applied the law beyond evidence tampering but seemed to acknowledge there was a direct parallel to another case.

Addressing arguments that the obstruction statute has never been used this way before, Justice Sonia Sotomayor said the January 6, 2021, Capitol riot was a first-of-its-kind event.

Joseph Fischer’s attorney, Jeffrey Green, however, expressed some disagreement with that assessment, arguing that the violent protests at a federal courthouse in Portland, Oregon, during the demonstrations against racial injustice in 2020 was another such example.

Solicitor General Elizabeth Prelogar is now arguing in defense of the obstruction statute used to prosecute more than 350 people accused of joining the mob on January 6, 2021.

Prosecutors have said that the charge should apply to the January 6 cases because the plain meaning of the words “obstruct” an “official proceeding” should cover the attack that interrupted Congress’ counting of ballots to certify President Joe Biden’s win in the 2020 election.

“On January 6, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power,” Prelogar said.

She continued, “many crimes occurred that day. But in plain English, 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.”

The liberal wing of the court probing how the obstruction law relates to tampering physical evidence — no matter where the court lands — is only one of the issues in this case. But it's an important part of whether this case might affect Donald Trump.

In a small subset of January 6, 2021, rioter cases, the obstruction of justice felony is being used as the most severe charge. If the rioters have gone to trial, prosecutors have brought in evidence before the jury about the paper electoral ballots being carried into and out of the Senate chamber before the riot caused its evacuation.

In Trump's case, there's an even less tenuous connection to paper evidence. That's because prosecutors have charged Trump with obstructing the official proceeding of Congress related to several different actions he took after the 2020 election — not just on January 6.

Among them, prosecutors say, was a Trump-led conspiracy to falsify electoral vote certificates and send them to Congress.

Justice Samuel Alito, a stalwart conservative, pressed the attorney representing Jospeh Fischer on the plain meaning of the law at issue in the case.

In this case, much hangs on the word "otherwise," which separates two clauses — one barring tampering or altering a document and the other prohibiting the obstruction of an official proceeding.

Fischer's attorney, Jeffrey Green, contends the word connects the two sections, meaning the entire provision deals with evidence tampering. Alito appeared to question that theory — or at least test it.

"One might say it can certainly be read the way the government reads it," he said, and that "might even be the more straightforward reading."

Justice Amy Coney Barrett questioned whether prosecutors could make their case against January 6 defendants by trying to prove they were blocking Electoral College vote certificates from “arriving to the vice president’s desk.”

Barrett raised the possibility in case the high court agrees that prosecutors improperly used the obstruction statute by accusing January 6 defendants of obstructing the congressional proceedings to certify the electoral vote count.

Capitol riot defendant Joseph Fischer’s attorney has argued the statute was improperly being applied to his client because it requires him to alter, destroy or mutilate some kind of evidence – not a congressional proceeding.

Fischer’s attorney said that theory would be “definitely closer” to his reading of the statute, but that he still believes Fischer should be charged only if he “change[d] documents” in a way that would “actually affect their integrity.”

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.