WASHINGTON — Supreme Court justices raised concerns Tuesday about the Justice Department’s use of an obstruction statute to charge those involved in the Jan. 6 attack on the U.S. Capitol.
The case could have bearing on the election interference prosecution of former President Donald Trump.
The justices heard an appeal brought by defendant Joseph Fischer, a former police officer who is seeking to dismiss a charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory, which was disrupted by a mob of Trump supporters.
The law in question criminalizes efforts to obstruct, influence or impede any official proceeding. Conviction can result in a prison sentence of up to 20 years.
The court, which has a 6-3 conservative majority, has in the past been skeptical of prosecutors when they assert broad applications of criminal provisions.
Some justices expressed similar sentiments during Tuesday’s arguments, asking whether the statute could be used to prosecute peaceful protesters, including people who at times have disrupted Supreme Court proceedings.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” conservative Justice Neil Gorsuch 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?”
Justice Samuel Alito, another conservative, asked similar questions during a lengthy exchange with Solicitor General Elizabeth Prelogar, noting that people who have protested at the Supreme Court were not charged under the law.
“I think it’s in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court Police, required the justices and other participants to flee for their safety,” Prelogar said.
“What happened on Jan. 6 was very, very serious, and I’m not equating this with that,” Alito responded. “But we need to find out what are the outer reaches of this statute under your interpretation.”
Trump faces charges of violating the same law, as well as conspiracy to obstruct an official proceeding. They are among four charges he faces in his election interference case in Washington, separate from the hush money prosecution currently moving ahead in New York.
Tuesday’s hearing comes just a week before the Supreme Court hears Trump’s bid to toss out his election interference charges based on a claim of presidential immunity. Justice Clarence Thomas was present for the arguments after an unexplained absence Monday.
Fischer and Trump both say the obstruction law does not apply to the allegations against them, meaning the charges should be dropped.
Fischer faces seven criminal charges, only one of which is the focus of the Supreme Court case. He also faces charges of assaulting a police officer and entering a restricted building, among others.
Conservative Justice Brett Kavanaugh questioned why the Justice Department needed to charge Fischer using the obstruction statute, noting that he faces the six other charges.
“Why aren’t those six counts good enough?” he asked.
Similarly, Justice Clarence Thomas, whose wife, Ginni Thomas, is a conservative activist who backed Trump’s effort to challenge the election results, asked whether prosecutors have ever used the statute in response to “violent protests” that have disrupted proceedings in the past.
“I can’t give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding,” Prelogar said.
Liberal Justice Sonia Sotomayor appeared to back Prelogar on that point.
“We’ve never had a situation before … with people attempting to stop a proceeding violently. So I’m not sure what a lack of history proves,” she said.
Prelogar sought to persuade the justices that prosecutors are not charging people under the obstruction statute without careful thought.
While there are about 1,350 Jan. 6 defendants in total, only 350 have been charged with obstructing an official proceeding, she said. The average prison sentence for those who were charged only with felony obstruction has been 26 months, she added.
Federal prosecutors have requested higher sentences for Jan. 6 defendants convicted of obstruction, but Prelogar focused on the actual sentences imposed by judges.
The provision was enacted in 2002 as part of the Sarbanes-Oxley Act, which was passed after the Enron accounting scandal.
On Jan. 6, 2021, prosecutors say, Fischer joined the crowd breaching the Capitol from the east side. “Charge!” he yelled again and again before he pushed forward toward a police line while yelling, “Motherf—–s!” the government says.
He and other rioters then fell to the ground. After other rioters lifted him up, video disclosed as evidence in other Jan. 6 trials shows, he tried to appeal to officers protecting the Capitol, telling them that he was an officer, too.
Fischer’s lawyers say the law should be limited to circumstances involving tampering with physical evidence, which is what they argue the law aims to address.
A ruling in favor of Fischer could benefit Trump, although that is not guaranteed. Prosecutors in Trump’s case have said that even if Fischer wins, Trump’s conduct would still be covered by a narrower interpretation of the statute.
Lawrence Hurley
Lawrence Hurley covers the Supreme Court for NBC News.
Ryan J. Reilly
Ryan J. Reilly is a justice reporter for NBC News.
