Can Jan. 6 rioters be charged with obstruction? Supreme Court weighs the question

As of this month, more than 100 rioters have been convicted and sentenced under that statute for obstructing or impeding an official proceeding — in this case the joint session of Congress that convened on Jan. 6 to formally certify Joe Biden’s 2020 victory.

On Tuesday, the Supreme Court will hear oral arguments about whether prosecutors improperly stretched the law by charging people with that violation in the first place.

The high court’s ruling, likely to land in late June, has the potential to undo the convictions and sentences of those who have already gone to trial or pleaded guilty, and upend the charges still pending for many more. Three Jan. 6 defendants have already had their sentences reduced ahead of a decision by the Supreme Court.

The court’s decision could have political implications for this year’s election, since Donald Trump — the likely Republican nominee — has made accusations of prosecutorial overreach a core part of his appeal to voters. The case could also directly impact Trump’s own trial for allegedly trying to remain in power after his 2020 defeat; two of the four charges he faces are based on the obstruction statute, and he could move to have those charges dismissed if the Supreme Court rules for the rioters.

Defense lawyers say prosecutors overreached by charging rioters with a crime that is limited to conduct that destroys or tampers with evidence sought by investigators. The government’s broad application of the statute, the lawyers warned in court filings, would allow prosecutors to target protesters or lobbyists who disrupt congressional committees.

The Justice Department said there are no examples of prosecutors using the statute passed two decades ago to target such behavior, which is protected by the First Amendment. Government lawyers argue that the violent disruption of the peaceful transfer of power after a presidential election, including attacks on police officers, is no minor interference.

But the challengers’ argument may be persuasive to some Supreme Court justices, several of whom have voted in past years to narrow the use of other laws they say were applied too broadly. One example is the high court’s unanimous 2016 decision to overturn the corruption conviction of former Virginia governor Robert F. McDonnell, in which the court expressed concern about prosecutors’ “boundless interpretation” of the federal bribery statute.

Attorney Roman Martinez appeared before the Supreme Court a decade ago to defend the government’s use of an obstruction statute similar to the one that is the focus of Tuesday’s argument. He said the court’s decision to take the Jan. 6 case, and look more closely at the statute, is consistent with the court’s recent trend of narrowing the discretion of prosecutors.

“The strain that runs really deep in the court in the last 10 years is a concern about prosecutors over-prosecuting,” said Martinez, who was a law clerk to Chief Justice John G. Roberts Jr. in 2009 and has since argued more than a dozen cases at the Supreme Court. “The court is very focused on ensuring that criminal statutes are not construed too broadly.”

Much of the discussion on Tuesday is expected to center on how to properly interpret the text of a statute Congress amended in 2002 as part of the Sarbanes-Oxley Act, which followed the Enron scandal. As the justices mull how narrowly or broadly prosecutors can apply the statute, the meaning of the word “otherwise” will play a central role.

The law includes a penalty of up to 20 years in prison for anyone who “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.”

Solicitor General Elizabeth B. Prelogar, defending the Justice Department, told the court in filings that the second clause should be read as a “catchall” that ensures that “unanticipated methods of corruptly obstructing an official proceeding — like occupying the Capitol building and forcing the suspension of Congress’s joint session certifying the election results — are prohibited, while giving a judge discretion to tailor the punishment to the crime.”

The word “otherwise” means in a different manner, Prelogar wrote, and makes clear that Congress intended to prohibit obstruction broadly, beyond the destruction of records or documents listed in the first section of the law.

Joseph W. Fischer, an off-duty Pennsylvania police officer who attended the Stop the Steal rally, strongly disagrees. He challenged the decision to charge him with obstructing Congress — one of several counts Fischer faces, including assaulting a federal officer in the police line outside the Capitol.

Fischer’s lawyers say the two sections of the statute must be read together, and the court must reject the government’s “boundless” interpretation. The obstruction measure is all about preserving the availability of evidence, they argue, as well as Congress’s interest in protecting the integrity of an investigation or other official proceeding.

“The government suggests that the Court should twist Congress’s effort into the creation of an omnibus obstruction offense for prosecutors to use in future cases,” Fischer’s legal team of federal public defenders and Jeffrey T. Green of Northwestern Law School wrote in a filing. “If there ever were a textual case in which judicial restraint is called for because Congress can broaden a statute to fit the government’s desired scope, this is that case.”

All but one of the 15 judges overseeing Jan. 6-related cases in the D.C. federal courthouse have sided with the government on this question, ruling that the rioters who sought to keep Congress from certifying Biden’s victory were “otherwise” obstructing that proceeding. The outlier was U.S. District Judge Carl J. Nichols, a Trump nominee, who said the word “otherwise” refers only to other efforts to tamper with or destroy records or documents.

A divided U.S. Court of Appeals for the D.C. Circuit reversed that ruling, which Judge Florence Pan — a Biden nominee — said was too narrow and at odds with the text of the statute. “We cannot assume, and think it unlikely, that Congress used expansive language to address such narrow concerns,” she wrote, joined in part by Judge Justin Walker, who was nominated by Trump.

Judge Gregory Katsas — also nominated by Trump — dissented, writing that a broad reading of the statute would put law-abiding activities like lobbying and protest at risk. “Historically, these activities did not constitute obstruction unless they directly impinged on a proceeding’s truth-seeking function through acts such as bribing a decision-maker or falsifying evidence presented to it,” he wrote.

The court’s conservative majority, including all three of Trump’s nominees to the high court — Amy Coney Barrett, Brett M. Kavanaugh and Neil M. Gorsuch — are proponents of textualism, the method of legal interpretation that considers only the words of the law under review, not legislators’ intent or the consequences of the decision.

Randall Eliason, a former federal prosecutor who has written extensively about the case, said the government could win over a majority in this case if enough justices adhere to the plain language of the text. In other words, letting “otherwise” mean just that.

But many other analysts expect the court to be sympathetic to concerns about the expansion of prosecutorial power and to rule against the government. They noted, among other things, that the votes of at least four of the nine justices are required to accept a case.

In the past 10 years, the court has narrowed the use of several other criminal statutes while expressing concern about prosecutorial overreach. In addition to overturning McDonnell’s conviction in 2016, the court tossed the convictions of political allies to former New Jersey governor Chris Christie, saying the federal government went too far in prosecuting them for political retaliation. And in 2015, a divided court said prosecutors misused a far-reaching obstruction statute to go after a Florida fisherman.

The fishing captain was accused of violating a different section of Sarbanes-Oxley that makes it a crime to destroy any “record, document or tangible object” to obstruct an investigation. He had tossed undersized grouper off his boat after getting a citation and was convicted of destroying evidence. The court reversed that conviction, and said the small fish were not the type of “tangible object” covered by the statute.

Of the justices still on the bench, Roberts and Justices Sonia Sotomayor and Samuel A. Alito Jr., agreed with the outcome. Liberal Justice Elena Kagan dissented and was joined by conservative Justices Clarence Thomas and the late Antonin Scalia, an ardent textualist. Kagan said the statute was clear and that a grouper is obviously a tangible object.

The majority’s “real issue” with the law, she wrote, was that it reflected “overcriminalization and excessive punishment in the U.S. Code.” The court, she added, should conclude that Congress “said what it meant and meant what it said” and not rewrite the law.

If the Supreme Court rules against the government in the case, known as Fischer v. U.S., Trump could move to have two of his four D.C. charges dismissed. That trial is already on hold pending the outcome of a separate case that is before the Supreme Court later this month, which will test Trump’s claim that he is immune from prosecution for actions taken while in the White House.

But some analysts say Jack Smith, the special counsel prosecuting Trump, could tailor his case against the former president to fit within the contours of a ruling in favor of Fischer.

Unlike the Jan. 6 defendants, Trump is not accused of obstruction because he went to or entered the Capitol. He is accused of participating in a plan to submit a slate of fake presidential electors — false evidence — to discard legitimate ballots and obstruct the certification proceeding, of pushing lies that the election was stolen and attempting to use false claims of massive fraud to pressure state officials, the Justice Department and Vice President Mike Pence to change the results.

Even if the Supreme Court decides the obstruction charge does not apply to the actions of the rioters, the special counsel has told the high court, the charges are still valid against Trump.

Trump, who has denied all wrongdoing, also faces two other charges in the D.C. indictment: conspiracy to defraud the United States and depriving Americans of their right to have their votes counted.

Spencer S. Hsu and Tom Jackman contributed to this report.