The majority of Supreme Court justices appeared skeptical during oral arguments Tuesday of the Biden Justice Department’s use of a federal obstruction statute in prosecuting over 300 Jan. 6 defendants.
The outcome of the case involving defendant Joseph Fischer could have major implications for former President Donald Trump’s election interference case brought by special counsel Jack Smith. The 45th president is charged under the same law, 18 U.S. Code 1512(c)(2), which has to do with the destruction of documents.
The legal provision in question was enacted as part of the 2002 Sarbanes-Oxley Act, a bill passed following the Enron accounting scandal.
“The Act adopts tough new provisions to deter and punish corporate and accounting fraud and corruption, ensure justice for wrongdoers, and protect the interests of workers and shareholders,” then-President George W. Bush said in a statement at the time.
Fischer and the other defendants are arguing that Sarbanes-Oxley has nothing to do with their actions on Jan. 6, 2021.
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The Department of Justice charged Fischer, a Pennsylvania resident, with obstruction of an official proceeding and aiding and abetting under Section 1512(c)(2), along with lesser offenses such as assault, disorderly conduct and entering a restricted space.
The reason the DOJ is trying to fit Fischer, Trump and others into the Sarbanes-Oxley provision is that it is a felony, with potential jail time of up to 20 years.
U.S. District Judge Carl Nichols dismissed the 1512(c)(2) charges against Fischer in March 2022.
Nichols concluded that the statute has to do with the destruction of documents or records in order to impede an official proceeding, as Section 1 makes clear. Since the DOJ did not accuse Fischer of taking such action, the statute did not apply.
Did the DOJ go too far with these charges?
But in April 2023, the U.S. Court of Appeals for the District of Columbia Circuit sided with the DOJ, reinstating the charges in a 2-1 vote.
The circuit court found that the language of Section 2 — “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” — could be separated from the context of document destruction and applied to the Jan. 6 defendants.
During oral arguments Tuesday, Justice Neil Gorsuch pressed Biden administration Solicitor General Elizabeth Prelogar on what the application of the use of the statute against other protesters besides the Jan. 6 defendants would be.
Supreme Court Justice Gorsuch nukes Joe Biden’s DOJ over January 6th sentences:
Gorsuch lists multiple cases of folks who “obstructed a Congressional proceeding” without receiving a 20 year sentence.
1. Sit-ins at a trial (Kavanaugh protests)
2. Pulling a fire alarm (Rep.… pic.twitter.com/DWETkzi7JI— End Wokeness (@EndWokeness) April 16, 2024
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” he asked. “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 for 20 years in federal prison?” Gorsuch wondered.
In March, a Gold Star dad heckled President Joe Biden during his State of the Union Address. He was arrested and charged for demonstrating in the Capitol. The charges were later dropped.
Democratic Rep. Jamaal Bowman of New York pulled a Capitol fire alarm last September during a House vote in an apparent attempt to stop passage of a stopgap spending bill. He pleaded guilty to a misdemeanor charge in October. The House later voted to censure him in December, Roll Call reported.
Another example would be the hundreds of people who disrupted Justice Brett Kavanaugh’s confirmation hearings in the Capitol complex in 2018.
Capitol Police arrested over 200 protesters, 177 of whom had protested in the hearing room itself, Reuters reported at the time. In other words, they were very disruptive to the proceedings.
Most of those taken into custody were charged with disorderly conduct, fined $35, then released.
Prelogar responded that the nature and length of the obstruction regarding the Jan. 6 protesters and the other examples he offered would be a way to distinguish them.
“To the extent that your hypotheticals are pressing on the idea of a peaceful protest, even one that’s quite disruptive, it’s not clear to me that the government would be able to show that each of those protesters had corrupt intent,” she said.
Fox News reported that Chief Justice John Roberts also questioned Prelogar on the broad interpretation the federal prosecutors were giving Section 1512(c)(2), given a 2019 DOJ’s Office of Legal Counsel opinion saying it should be interpreted narrowly.
Prelogar responded that the opinion had never been formally adopted, but she could not say what the adoption process was.
George Washington University Law School professor Jonathan Turley told Fox that Prelogar is one of “the best appellate litigators” but said she appeared “clearly on the ropes” and “made some uncharacteristic concessions.”
Carrie Severino, a former clerk for Justice Clarence Thomas and president of the Judicial Crisis Network, also argued that the Biden DOJ’s position looked untenable.
The government “had a hard time explaining how this wasn’t going to be such a broad, open door that it could allow a lot of behavior that we clearly understand to be protected First Amendment speech — peaceful protests, etc. — to get swept in the way that they’re charging it,” she said.
Real Clear Investigations reporter Julie Kelley, who has followed the Jan. 6 cases closely, observed following oral arguments that a “majority of justices expressed a great deal of skepticism” regarding the DOJ’s broad interpretation of the statute.
Fischer v. the United States
Author @julie_kelly2 tells Steve Bannon that Joseph Fischer was one of 350 J6ers charged with obstruction of an official proceeding. The U.S. Supreme Court held oral arguments on the case this morning. “I think the majority of justices expressed a… pic.twitter.com/WIY9KpNyXL
— Real America’s Voice (RAV) (@RealAmVoice) April 16, 2024
She is hopeful the convictions against Fischer and other defendants will be overturned, which will mean two of the four charges Smith has brought against Trump under the statute will also go away.
