The Supreme Court heard a case this week with big implications for prosecutions of accused Jan. 6 insurrectionists. Unsurprisingly, the matter has polarized onlookers — with each side insisting that there’s a clear legal, and moral, answer. The reality is more complicated.
The week’s oral argument in Fischer v. United States had a direct and indirect connection to former president Donald Trump.
The defendant, a former police officer named Joseph Fischer who participated in the riot at the U.S. Capitol, is challenging the Justice Department’s choice to charge him under a federal statute that makes it a crime to obstruct or impede an official proceeding — in this instance, Congress’s certification of Joe Biden’s 2020 victory — because the law was devised to punish evidence tampering, not his Jan. 6, 2021, conduct. The law also allows the government to seek up to a 20-year sentence.
The justices’ decision will affect not only Mr. Fischer but also more than 350 other Jan. 6 defendants prosecuted under the law.
Crucially, it could affect the former president himself: Two of the four counts brought against Mr. Trump by special counsel Jack Smith are conspiring to obstruct and obstructing the same electoral vote count proceeding.
The prospect of the Supreme Court letting insurrectionists walk has understandably alarmed the many Americans appalled by Jan. 6. But even if the court sided with Mr. Fischer, every rioter indicted on the obstruction charge faces other charges, too; no one would get off scot-free. Some might have to be resentenced or retried, and could get lighter penalties in the end. Some have already been granted early release. The same goes for Mr. Trump’s case; two other counts would still remain, regardless of what the Supreme Court does.
Yet this doesn’t mean that the court should rule the way Mr. Fischer desires. Arguing that the statute forbids a range of obstructive behavior, Solicitor General Elizabeth B. Prelogar noted that both storming the Capitol and shredding documents obstruct official proceedings. Preventing this obstruction is the point of the law, which contains language that seems to broaden its scope beyond just, say, document destruction.
Chief Justice John G. Roberts Jr. pointed out that the court is usually not so permissive in its interpretation of such language.
Indeed, a maximally expansive reading invited uncomfortable hypotheticals, several of which the justices explored in Tuesday’s hearing. What if hecklers stood from their seats in the courthouse and yelled, “Free the January 6th patriots”? What if protesters blocked access to a bridge from Virginia to D.C. and prevented members of Congress from making it to a vote? What if someone pulled a fire alarm as the House was trying to conduct business?
Distinguishing which, if any, of these obstructors should be charged under this law is not easy. But Ms. Prelogar proposed a decent way to start: Focus on whether they have corrupt intent, as the statute requires. To fall under its scope, a person must knowingly seek an unlawful benefit to himself or someone else.
Those hecklers, for instance, could well believe they have speech rights entitling them to disrupt the high court’s schedules … even if they’re wrong.
Participants in, say, a civil rights sit-in outside the Capitol might aim to have their voices heard — but not really believe they can stop a particular proceeding from taking place. Not so for many of the Jan. 6 insurrectionists, whose express goal was to prevent the constitutionally required certification of a lawfully elected president’s victory (and not so, perhaps, for the alarm-puller).
A lot of them knew that they were illegally entering and vandalizing the seat of government, and a lot of them knew that they were doing so in pursuit of an end that was also illegal.
This could result in a reasonable middle position on the law, much like the one laid out by Judge Justin R. Walker of the D.C. Circuit almost a year ago: that for the statute to apply, a defendant must both know he is obtaining an unlawful benefit and act with the purpose of obtaining that unlawful benefit.
Such a stricter burden of proof on the government would limit the law’s potential application to non-document-shredding situations, without eliminating it.
