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Will the Supreme Court jeopardize the prosecution of more than 350 defendants involved with Jan. 6, including Donald Trump, by gutting the federal statute that prohibits their unlawful conduct? Maybe so. Tuesday’s oral arguments in Fischer v. United States were rough sledding for the government, as the conservative justices lined up to thwap Joe Biden’s Department of Justice for allegedly overreaching in its pursuit of Jan. 6 convictions. Six members of the court took turns wringing their hands over the application of a criminal obstruction law to the rioters, fretting that they faced overly harsh penalties for participating in the violent attack. Unmentioned but lurking in the background was Trump himself, who can wriggle out of two major charges against him with a favorable decision in this case.

There are, no doubt, too many criminal laws whose vague wording gives prosecutors near-limitless leeway to threaten citizens with decades in prison. But this isn’t one of them. Congress wrote a perfectly legible law and the overwhelming majority of judges have had no trouble applying it. It would be all too telling if the Supreme Court decides to pretend the statute is somehow too sweeping or jumbled to use as a tool of accountability for Jan. 6.

Start with the obstruction law itself, known as Section 1552(c), which Congress enacted to close loopholes that Enron exploited to impede probes into its misconduct. The provision is remarkably straightforward—a far cry from the ambiguous, sloppy, or muddled laws that typically flummox the judiciary. It’s a mainstay of the Department of Justice’s “Capitol siege” prosecutions, deployed in about a quarter of all cases. Overall, 350 people face charges under this statute, Trump among them, and the DOJ has used it to secure the convictions of about 150 rioters. It targets anyone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” And it clarifies that an official proceeding includes “a proceeding before the Congress.”

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The government argues that some rioters attempted to “obstruct” an “official proceeding” by halting the count of electoral votes through “corrupt” means. That includes Joseph Fischer, the defendant in the current case. Fischer, who served as a police officer before Jan. 6, allegedly texted that the protest “might get violent”; that “they should storm the capital and drag all the democrates [sic] into the street and have a mob trial”; and that protesters should “take democratic congress to the gallows,” because they “can’t vote if they can’t breathe..lol.” Video evidence shows Fischer assaulting multiple police officers on the afternoon of Jan. 6 after breaching the Capitol.

Would anyone seriously argue that this person did not attempt to corruptly obstruct an official proceeding? For a time, it seemed not: 14 of the 15 federal judges—all but Judge Carl Nichols in this case—considering the charge in various Jan. 6 cases agreed that it applied to violent rioters bent on stopping the electoral count. So did every judge on the U.S. Court of Appeals for the District of Columbia Circuit except one, Judge Gregory Katsas. Both Nichols and Katsas were appointed by Trump. Their crusade to kneecap the law caught SCOTUS’ attention, and the court decided to intervene despite overwhelming consensus among lower court judges. The Supreme Court’s decision will have major implications for Trump: Two of the four charges brought by special counsel Jack Smith in the former president’s Jan. 6 prosecution revolve around this offense. A ruling that eviscerates the obstruction law would arguably cut out the heart of the indictment.

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At least three justices seem ready to do just that. Justice Clarence Thomas—back on the bench after yesterday’s unexplained absence—grilled Solicitor General Elizabeth Prelogar over the law’s application to Jan. 6. “There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past?” Thomas asked, as if to nail the Justice Department for inconsistency and reveal some improper motive for wielding the law against violent insurrectionists. Justice Neil Gorsuch trolled Prelogar by alluding to Democratic Rep. Jamaal Bowman’s infamous fire alarm incident. “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” he asked. Justice Samuel Alito joined in to ask about “protests in the courtroom” when an audience member interrupts the justices and “delays the proceeding for five minutes.”

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“For all the protests that have occurred in this court,” Alito noted pointedly, “the Justice Department has not charged any serious offenses, and I don’t think any one of those protestors has been sentenced to even one day in prison.” Why, he wondered, weren’t they charged under the obstruction statute?

Alito, audibly angry, continued: “Yesterday protestors blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco,” he told Prelogar. “What if something similar to that happened all around the Capitol so … all the bridges from Virginia were blocked, and members from Virginia who needed to appear at a hearing couldn’t get there or were delayed in getting there? Would that be a violation of this provision?”

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To be clear, this is trolling: There is simply no comparison between a violent attack on the Capitol and protests that take the form of civil disobedience. And these justices expressed no similar concern about an ongoing red-state effort to persecute peaceful protesters who participate in Black Lives Matter demonstrations. Gorsuch and Alito’s hypotheticals ignore the reality that there are two layers of protection between minor protests and this rather major law. First, the Constitution affords prosecutorial discretion to the executive branch, allowing the Department of Justice to decide when an illegal “protest” is dangerous enough to warrant the use of a criminal law like the obstruction statute. Second, prosecutors must always prove the alleged offense to a jury, beyond a reasonable doubt, creating a democratic check on the abusive use of a stringent law to punish a silly crime.

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Prelogar highlighted this latter point, explaining that juries have indeed acquitted Jan. 6 defendants of obstruction. If prosecutors ever apply this (or any other) criminal statute to a questionable set of facts, they may always be thwarted by a jury. That is how the system is meant to work.

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This kind of behavior from Thomas, Gorsuch, and Alito is no surprise at this point. And the liberal justices countered them as best they could. What’s troubling is that the other conservative justices jumped in to join the pile-on. Chief Justice John Roberts insistently pressed Prelogar to prove that the Justice Department has interpreted and enforced the obstruction law consistently in the past. This question ignored the fact that, as Prelogar reminded the court, there has never been any crime like the assault on the Capitol, so the agency had no prior opportunity to apply the law in any similar way.

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Justice Brett Kavanaugh suggested that the Justice Department didn’t really need this statute because it has other laws at its disposal. “There are six other counts in the indictment here,” he told Prelogar. Why “aren’t those six counts good enough just from the Justice Department’s perspective given that they don’t have any of the hurdles?” Of course, the DOJ brought the obstruction charge specifically because it was more serious than the others; prosecutors felt an obligation to enforce Congress’ strong protections against intrusions on official proceedings, including those in the Capitol. Kavanaugh appears to think the DOJ should have settled for a smattering of lesser charges. Justice Amy Coney Barrett was not so obtuse; she earnestly worried that the statute was too broad and fished around for narrowing constructions. Yet she seemed unsatisfied with the many options Prelogar provided to keep the law limited to the most egregious interruptions of government business.

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What all six justices seemed tempted to do was rip up Section 1552(c) because it happens to include another sentence that applies to the destruction of evidence and other official documents. Jan. 6 rioters didn’t destroy evidence, this argument goes, so they can’t be culpable under a law. That reading is untenable, something Prelogar impressively reinforced at every turn on Tuesday, but it may be attractive if a majority wants to defuse this statute before it’s used against Trump in a court of law.

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Smith’s indictment of the former president for his participation in Jan. 6 doesn’t entirely hinge on obstruction. It does, however, weave obstruction into both the facts and the legal theory of the case, placing it at the center of a broader criminal conspiracy to overturn the 2020 election. If SCOTUS defuses the law now, Smith would have to scrap two of four charges and restructure the entire indictment, making it that much easier for Trump to demand further delay and, eventually, evade a conviction.

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The justices know this. They should have been on their best behavior on Tuesday to avoid any glimmer of impropriety. It was already profoundly disturbing that Thomas sat on the case given his wife’s involvement with the attempt to overturn the election. The other justices’ faux concern about overcriminalization of protesters only added to the foul smell emanating from arguments. There’s no telling how Fischer will turn out; maybe the liberal justices will help their colleagues rediscover their better angels behind the scenes. From Tuesday’s vantage point, though, the argument was a bleak reminder of how easy it is for cloistered jurists to wish away the massive stakes of a case like this.

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QOSHE - Hundreds of Jan. 6 Prosecutions—Including Donald Trump’s—Are Suddenly in Peril at the Supreme Court - Mark Joseph Stern
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Hundreds of Jan. 6 Prosecutions—Including Donald Trump’s—Are Suddenly in Peril at the Supreme Court

21 17
17.04.2024
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Will the Supreme Court jeopardize the prosecution of more than 350 defendants involved with Jan. 6, including Donald Trump, by gutting the federal statute that prohibits their unlawful conduct? Maybe so. Tuesday’s oral arguments in Fischer v. United States were rough sledding for the government, as the conservative justices lined up to thwap Joe Biden’s Department of Justice for allegedly overreaching in its pursuit of Jan. 6 convictions. Six members of the court took turns wringing their hands over the application of a criminal obstruction law to the rioters, fretting that they faced overly harsh penalties for participating in the violent attack. Unmentioned but lurking in the background was Trump himself, who can wriggle out of two major charges against him with a favorable decision in this case.

There are, no doubt, too many criminal laws whose vague wording gives prosecutors near-limitless leeway to threaten citizens with decades in prison. But this isn’t one of them. Congress wrote a perfectly legible law and the overwhelming majority of judges have had no trouble applying it. It would be all too telling if the Supreme Court decides to pretend the statute is somehow too sweeping or jumbled to use as a tool of accountability for Jan. 6.

Start with the obstruction law itself, known as Section 1552(c), which Congress enacted to close loopholes that Enron exploited to impede probes into its misconduct. The provision is remarkably straightforward—a far cry from the ambiguous, sloppy, or muddled laws that typically flummox the judiciary. It’s a mainstay of the Department of Justice’s “Capitol siege” prosecutions, deployed in about a quarter of all cases. Overall, 350 people face charges under this statute, Trump among them, and the DOJ has used it to secure the convictions of about 150 rioters. It targets anyone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” And it clarifies that an official proceeding includes “a proceeding before the Congress.”

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The government argues that some rioters attempted to “obstruct” an “official proceeding” by halting the count of electoral votes through “corrupt” means. That includes Joseph Fischer, the defendant in the current case. Fischer, who served as a police officer before Jan. 6, allegedly texted that the protest “might get violent”; that “they should storm the capital and drag all the democrates [sic] into the street and have a mob trial”; and that protesters should “take democratic congress to the gallows,” because they “can’t vote if they can’t breathe..lol.” Video evidence shows Fischer........

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