Supreme Court justices aired concerns Tuesday that the government has used a particular criminal statute to charge defendants connected to the Jan. 6, 2021, attack on the Capitol, including former President Donald Trump.
At oral arguments, justices in the conservative majority probed whether the Justice Department had exceeded the scope of a statute that permits up to a 20-year prison sentence for people convicted of “corruptly” obstructing, influencing or impeding an official proceeding.
Justice Neil M. Gorsuch brought up other potential actions to see whether they would qualify for prosecution under the statute that the Justice Department has used in hundreds of cases related to the Jan. 6 attack.
“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?” he said. “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
That question alluded to the actions of Rep. Jamaal Bowman, D-N.Y., who used a fire alarm in a Capitol office building and prompting its evacuation last year but was not charged under the statute.
Justices also focused on the use of the word “otherwise” within the structure of the statute, with discussion on whether that means it only relates to the alteration or destruction of records and documents, and not interrupting a congressional proceeding.
Justice Brett M. Kavanaugh questioned why Congress would tuck such a sweeping charge into a statute, and asked why the Justice Department didn’t find the other counts against the defendant as “good enough.”
Solicitor General Elizabeth B. Prelogar responded that the defendant in the case, Joseph Fischer, ahead of Jan. 6, 2021, said he was prepared to storm the Capitol, was prepared to use violence and wanted to intimidate Congress.
“He said they can’t vote if they can’t breathe. And then he went to the Capitol on January 6th with that intent in mind and took action, including assaulting a law enforcement officer,” Prelogar said.
“That did impede the ability of the officers to regain control of the Capitol and let Congress finish its work in that session,” Prelogar said. “And I think it is entirely appropriate for the government to seek to hold petitioner accountable for that conduct with that intent.”
The Supreme Court is expected to issue a decision by the conclusion of the term at the end of June. An opinion that sides with Fischer, a former police officer changed in connection with the Capitol attack, could also change the federal criminal case against Trump in Washington. One of the charges against Trump is the same statute at issue in the case before the Supreme Court.
Also Tuesday, Justice Samuel A. Alito Jr. presented his own hypothetical in which protesters made outbursts at an argument at the Supreme Court and police had to forcefully remove them from the courtroom.
Preloger said the government does not believe the statute could be used to prosecute “minimal, de minimis, minor interferences.”
“We think that the term obstruct on its face connotes a meaningful interference,” Prelogar said.
But Alito pushed back and noted that the statute does not just relate to action that obstructs, but also relates to conduct that obstructs, influences or impedes an official proceeding.
“Impedes is something less than obstructs,” Alito said. “We need to find out what are the outer reaches of this statute under your interpretation.”
Justice Elena Kagan said there were multiple ways in which the drafters of the statute could have made it clear that they intended the provision to operate only in the “sphere of evidence spoliation.”
“But it doesn’t do that,” Kagan said. What the statute “really does not say” is everything in it “also has to spoil evidence.”
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