WASHINGTON (CN) — The mounting complications facing the Justice Department’s prosecution of Jan. 6 rioters heads to the Supreme Court next week in a challenge that threatens to upend over 300 convictions.
A staple of prosecutors’ Jan. 6 charges will be put under the microscope as the justices consider if the Department of Justice misused a two-decade-old obstruction law to penalize pro-Trump rioters.
“The government has begun using Section 1512(c)(2) as its all-purpose weapon against perceived political opponents, even now charging President Trump and seeking his imprisonment for up to 20 years,” Senator Tom Cotton and Representative Jim Jordan told the court.
In the three years since the violent attack, the Department of Justice has arrested almost 1,400 people who breached the U.S. Capitol on Jan. 6, 2021, forcing Congress to halt its certification of the 2020 election results.
Almost all the rioters were charged with entering a restricted federal building and about 500 of those individuals were charged with assaulting Capitol police. Hundreds of others, however, also faced charges for corruptly obstructing an official proceeding.
The obstruction charges stem from a 2002 law enacted in the wake of the Enron accounting fraud scandal. Joseph Fischer, one of the 350 people charged with felony obstruction, claims that the Justice Department never used the statute this way before Jan. 6.
“Applying Section 1512(c)(2) to Mr. Fischer’s four-minute foray to about 20 feet inside the Capitol after Congress had recessed illustrates what the D.C. Circuit’s concurring and dissenting opinions criticized as its ‘breathtaking’ and unconstitutional scope,” Frederick Ulrich, a federal public defender representing Fischer, wrote.
Fischer recorded himself forcibly entering the Capitol. He yelled expletives while running toward police officers who were attempting to reestablish control of the building. Police body camera footage showed Fischer running into and assaulting Capitol police officers.
The next day, Fischer posted his Capitol breach video on Facebook. He noted that four rows of officers were lining the entrance and said the police shot pepper balls and pepper spray at him. Fischer told another user that “entry into the Capital was needed to send a message that we the people hold the real power.”
Prosecutors also obtained Fischer’s Facebook messages where he told another user that he didn’t have any regrets about participating in the riot even though it might have cost him his job. Fischer reiterated that sentiment when the FBI arrested him on Feb. 19, 2021.
A grand jury indicted Fischer on seven counts including entering a restricted building, assaulting a police officer and corruptly obstructing an official proceeding.
Fischer was able to convince a judge to dismiss the obstruction charge, but the D.C. Circuit reversed.
At the Supreme Court, Fischer argues that the obstruction statute he was charged under is limited to the destruction of records during an investigation. Fischer claims the Justice Department so egregiously expanded the statute that common Capitol Hill business like lobbying and advocacy would become criminal.
“[I]f attempting to influence a congressional committee by itself is a crime, we might as well convert all of Washington’s office buildings into prisons,” Ulrich wrote.
The Justice Department defends its use of the statute, claiming it was enacted to target corrupt obstruction that happens outside of laws that criminalize specific forms of obstruction. The government argues that Fischer is asking the justices to depart from the ordinary meaning of the law and limit it to only cover obstruction involving the integrity of evidence.
“That interpretation finds no sound foothold in the text and would undermine Congress’s effort to prohibit unanticipated methods of corruptly obstructing an official proceeding — such as petitioner’s alleged conduct in joining a violent riot to disrupt the joint session of Congress certifying the presidential election results,” U.S. Solicitor General Elizabeth Prelogar wrote.
A group of former government officials including former United Nations Ambassador John Danforth and retired Judge J. Michael Luttig stressed the importance of the Justice Department creating a deterrent to future attacks on the Capitol.
“American history teaches the critical importance of deterring those who might engage in criminal conduct as part of efforts to overturn the loss of a presidential election," the officials wrote in an amicus brief before the court.
Danforth and Luttig dismissed concerns from Republican lawmakers that the government was criminalizing political activism. They said delaying a vote on a funding bill, a sit-in protest or an interruption to a congressional hearing are all very different than the violent interruption to lawmakers’ constitutional duty to certify the election.
“There is simply no historical comparison between the consequences of criminal acts in opposition to the election of a new president — as illustrated by both our Civil War and the January 6, 2021, invasion — and the ‘what-about’ examples discussed in the Cotton-Jordan brief,” the officials wrote.
The group said that without unobstructed proceedings, the American system of government would fail.
“If America ever allowed the powerful impulse of might makes right to prevail over the peaceful transfer of power, we would have failed to keep our republic,” the group wrote.
The Supreme Court is not the only venue where the Justice Department is fighting to uphold punishments for Jan. 6 rioters. Last month, the D.C. Circuit ruled that a judge had improperly enhanced the sentence of a retired Air Force lieutenant who was convicted under felony obstruction charges. The appeals court ruling could open the door to allow other rioters to challenge their sentences.
Another Capitol rioter attempted to challenge his conviction, claiming that the U.S. Capitol was a public forum that allowed protesters to demonstrate inside. The D.C. Circuit rejected that argument.
How the Supreme Court rules on the case before the justices threatens not only the prosecutions of the 350 rioters, but also the special counsel’s case against Donald Trump, who was charged under the same statute. The Supreme Court will review the former president’s immunity claim against election subversion charges a week after it reviews Fischer’s case.
The Supreme Court will hear arguments in Fischer’s case on Tuesday.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Hunter Biden appeals April 12, 2024 -
