The Supreme Court’s nine justices wrestled Tuesday with the violence of the Jan. 6, 2021, Capitol riot while considering a case that could upend hundreds of prosecutions, including that of former President Donald Trump.
Pennsylvania resident Joseph Fischer had appealed to the high court to throw out a charge of obstructing an official proceeding, a count based on a technical reading of the 2002 Sarbanes-Oxley Act — passed after the Enron accounting fraud scandal.
Attorney Jeffrey Green, representing Fischer, argued that the charge should only apply to defendants who tampered with official papers or other items while storming the Capitol, and that the Justice Department had overstepped by applying Sarbanes-Oxley to his client.
“The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct,” Green said. “A Sarbanes-Oxley-based, Enron-driven evidence tampering statute is not one of them.”
Fischer’s argument appeared to win over four of the court’s six conservative justices — Clarence Thomas, Samuel Alito, Chief Justice John Roberts and Neil Gorsuch — while liberals Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor seemed to lean toward the government.
At least 315 accused Capitol rioters have faced the same obstruction charge as Fischer — and the same allegation has been lodged by special counsel Jack Smith against Trump, who faces up to 20 years in prison if convicted on that charge.
The maximum penalty drew the concern of Gorsuch, who asked Solicitor General Elizabeth Prelogar, arguing for the government: “Would a sit-in that disrupts a trial, or access to a federal courthouse, qualify? 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?” added Gorsuch, referring to the case against “Squad” member Rep. Jamaal Bowman (D-NY) last fall.
Prelogar claimed that the statute has built-in limitations because prosecutors would have to prove wrongdoing “beyond a reasonable doubt” and show intent.
Alito mirrored Gorsuch with his questioning, asking Prelogar: “We’ve had a number of protests in the courtroom. Let’s say it delays proceeding for five minutes. … Would that be a violation?”
“I think it’s in a fundamentally different posture than if they had stormed into this courtroom and overrun the Supreme Court,” she finally replied.
The text of the law stipulates that anyone who “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 otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” faces criminal liability.
Green argued that the word “otherwise” was anchored to the initial clause and meant that the action had to “similarly” relate to “action with respect to a document, record or other object.”
Prelogar contended that “otherwise” in that context meant “in a different manner” or “in addition to.”
The liberals challenged Green’s reading of the statute, with Sotomayor comparing it to theaters admonishing patrons they would be ejected if they record the actors “or otherwise disrupt the performance.”
“If you start yelling,” the Bronx-born jurist said, “I think no one would question you could be kicked out under this policy, even though yelling has nothing to do with photographing or recording.”
Kagan suggested that the lawmakers could have written Sarbanes-Oxley to specify that the obstruction charge applied “only in the sphere of evidence spoliation. But it doesn’t do that.”
“Certainly the statute could be written more precisely,” Green said. “Any statute could be written more precisely.”
“It’s not a question of ‘precisely,'” Kagan shot back.
At least one conservative was also skeptical of Green’s argument, with Alito warning that “you may be biting off more than you can chew
.”
Roberts, on the other hand, appeared to be convinced, telling Prelogar: “You can’t just tack it on and say, ‘Look at it as if it’s standing alone,’ because it’s not.”
Fischer, who was arrested in February 2021 and indicted the following month, is also accused of civil disorder, disorderly conduct, and assaulting a police officer, among other charges.
Prosecutors say the former police officer called on rioters to “hold the line” and got physical with law enforcement during the riot. Fischer’s attorneys have argued their client only entered the building after Congress recessed and was only inside for a brief period.
During his rebuttal, Green doubled down on his concerns about the future potential for the government to abuse a broader interpretation of the statute.
“People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon,” he warned.
If the Supreme Court rules against the government, defense lawyers say, the DC federal court will have to revisit hundreds of convictions and revise hundreds of sentences downward.
Trump faces two other charges: conspiracy to violate civil rights and conspiracy to defraud the US.
The 77-year-old former president has pleaded not guilty and denied wrongdoing.
A decision by the high court in Fischer v. United States is expected by the end of June.
Next week, the justices will hear arguments in a case brought by Trump arguing that he enjoys presidential immunity from prosecution in the election subversion case brought by Smith.
