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SUPREME COURT TORN OVER CAPITOL RIOT CASE THAT COULD THWART TRUMP CHARGE,
HUNDREDS OF PROCEEDINGS
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Published April 16, 2024, 1:27 p.m. ET
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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.
6
Donald Trump is facing a charge of conspiracy to obstruct an official
proceeding. AFP via Getty Images
“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.
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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.
6
Joseph Fischer, a Pennsylvania police officer, posted a video of himself
charging a line of police officers on Facebook. U.S. Justice Department
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.
SEE ALSO
SUPREME COURT TAKES UP JAN. 6 CASE THAT COULD UPEND TRUMP CHARGES
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.”
6
Prosecutors have slapped obstruction of an official proceeding charges against
over 300 rioters. U.S. Justice Department
“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.
6
Justice Sonia Sotomayor has faced some pressure from progressives to step down
while Democrats still have the power to name a successor. AP
6
Justice Neil Gorsuch asked how the law would apply to someone like Rep. Jamaal
Bowman, without mentioning the congressman’s name. AP
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.
6
The Supreme Court was divided over how to tackle the Jan. 6 case. AFP via Getty
Images
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.
47
What do you think? Post a comment.
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.
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* 4/16/24
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Donald Trump is facing a charge of conspiracy to obstruct an official
proceeding. AFP via Getty Images
Joseph Fischer, a Pennsylvania police officer, posted a video of himself
charging a line of police officers on Facebook. U.S. Justice Department
Prosecutors have slapped obstruction of an official proceeding charges against
over 300 rioters. U.S. Justice Department
Justice Sonia Sotomayor has faced some pressure from progressives to step down
while Democrats still have the power to name a successor. AP
Justice Neil Gorsuch asked how the law would apply to someone like Rep. Jamaal
Bowman, without mentioning the congressman's name. AP
The Supreme Court was divided over how to tackle the Jan. 6 case. AFP via Getty
Images
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