WASHINGTON (CN) — The Supreme Court on Tuesday appeared split over whether the Justice Department overstepped when charging rioters who stormed the U.S. Capitol on Jan. 6, 2021, with felony obstruction of official proceedings.
There was concern across the bench that the government interpreted a 2002 law too broadly when it levied the obstruction charges against rioters for blocking Congress’s certification of the 2020 election results.
“Do you think it’s plausible that Congress would have written a statute that broadly?” Justice Amy Coney Barrett asked the government.
Following the Enron accounting fraud scandal of the early 2000s, Congress enacted several obstruction laws criminalizing interference with official proceedings. One targets the destruction of evidence to impede an official proceeding and the other deals with the act of obstructing a proceeding.
Joseph Fischer and hundreds of other rioters were charged with the latter.
He told the Supreme Court Tuesday that allowing the Justice Department to use the statute in this way threatened to criminalize any protest.
“The government wants to unleash a 20-year maximum penalty on potential peaceful protests,” said Jeffrey Green, an attorney at the Northwestern Supreme Court Practicum representing Fischer.
Several justices showed the same concern. Justice Neil Gorsuch, a Donald Trump appointee, asked if the government could charge an individual with felony obstruction for pulling a fire alarm to block a proceeding, or for heckling at the court or during the State of the Union.
Justice Samuel Alito, a George W. Bush appointee, expressed worry about the 20-year maximum sentence attached to the charge. Alito noted that Supreme Court protesters are removed by police officers and can delay the court’s proceedings for five minutes. He asked if that would qualify as felony obstruction.
Alito also incorrectly claimed that no one who has protested before the Supreme Court had been sentenced to jail time. In 2017, five people received several weekends in prison for protesting Citizens United v. FEC during an oral argument session.
While in his hypothetical he substituted Supreme Court protesters for Jan. 6 rioters, Alito clarified that what happened on Jan. 6 was serious, and said was not equating the two scenarios.
Yet the country has seen been many violent protests over the years, Justice Clarence Thomas noted. The George H.W. Bush appointee asked if the Justice Department similarly had charged protesters with felony obstruction.
U.S. Solicitor General Elizabeth Prelogar said the government had used the charge in cases outside of evidence tampering but noted that there was no comparison to Jan. 6 where the Justice Department would have used the charge.
“I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring with all of the elements like intent to obstruct," Prelogar said, "because I'm not aware of that circumstance ever happening prior to Jan. 6.”
Justice Sonia Sotomayor, a Barack Obama appointee, seemed to agree with this argument and dismissed her colleague's call for historical precedent using the statute in this way.
“We've never had a situation before where there's been a situation like this with people attempting to stop a proceeding violently,” Sotomayor said. “So I'm not sure what a lack of history proves.”
Sotomayor tried to limit the court’s inquiry to the statutory interpretation of the 2002 law. She said the text confirms Congress wanted the obstruction statute to serve as a backstop to catch obstruction charges that aren't specified in other sections of the law.
Justice Elena Kagan, a Barack Obama appointee, said there was a good argument that the statute was purposefully superfluous to avoid any gaps in the law.
“What Enron convinced them of was that there were gaps in these statutes, and they tried to fill the gaps,” Kagan said.
Chief Justice John Roberts, a George W. Bush appointee, took a narrower approach, arguing that a recent ruling from the court should be instructive. Roberts — who authored the unanimous ruling in Bissonnette v. LePage — said the evidence component would carry over to the section involving obstructive acts if the court were to follow that ruling.
Roberts’ theory would force the government to prove that there was an evidence component to Fischer’s obstruction.
Barrett suggested this might not be a huge impediment. The government could try to prove that Fischer tried to obstruct evidence because he was attempting to prevent the electoral certificates from arriving on the vice president’s desk for counting.
Justice Ketanji Brown Jackson, a Joe Biden appointee, also picked up the argument. She was open to limiting the government’s interpretation of the statute — but not to the extent that evidence needed to be directly involved. The law could be used, she said, to prosecute actions that prevent access to documents used in a proceeding.
Justice Brett Kavanaugh questioned why the government would need to charge Fischer with felony obstruction in addition to six other charges, which include entering a restricted building, assaulting a police officer and disorderly conduct.
“Why aren’t those six counts good enough?” the Donald Trump appointee asked.
The Supreme Court will issue a ruling by the end of June.
Follow @KelseyReichmann
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