The Supreme Court heard arguments on Tuesday regarding a challenge to federal laws that have allowed the Justice Department to charge hundreds of Jan. 6 rioters with obstruction of an official proceeding. The court’s decision could reduce the sentences of many Jan. 6 defendants — and grant a major boon to former President Donald Trump in his own federal election subversion case.
The case in question is Fischer v. United States. Joseph Fischer was charged with obstruction of an official proceeding, assaulting a police officer, and disorderly conduct for his actions in the Capitol on Jan. 6, 2021, when a mob stormed the grounds and delayed lawmakers’ efforts to certify the results of the 2020 presidential election. In March 2022, Trump-appointed D.C. District Court Judge Carl Nichols dismissed the obstruction charges against Fischer and two other Jan. 6 defendants.
Nichols argued that the definition of obstruction of an official proceeding, created by Congress in the 2002 Sarbanes-Oxley Act in response to the Enron scandal, had been incorrectly interpreted and applied by the Justice Department against the defendants, asserting the law is about evidence tampering and doesn’t cover the events of Jan. 6. The law allows prison sentences of up to 20 years for people who are convicted of “corruptly” obstructing an official proceeding. Nichols’ ruling was reversed by the D.C. Court of Appeals in April of last year, and Fischer petitioned the Supreme Court to review the case.
The high court’s decision could have major implications for Trump. As part of the Justice Department’s ongoing election subversion case against the former president, Trump was charged in August for obstructing an official proceeding as well as conspiracy to obstruct an official proceeding.
Should the Supreme Court side with Fischer, two of the four charges leveled against Trump over his actions on Jan. 6 could be dismissed — or at least open an avenue for the former president to level his own challenge. Trump already received boosts from justices when they rejected blue states’ efforts to keep him off their ballots for having incited the Jan. 6 insurrection, as well as when they agreed to hear his claims to having immunity for acts committed as president in perpetuity — a move that likely delayed his election subversion trial until after Election Day in November.
During Tuesday’s oral arguments the court’s conservative justices — three of them Trump appointees — pushed back heavily against the Justice Department’s arguments.
Justice Neil Gorsuch questioned whether the DOJ would level similar charges against “sit-in that disrupts a trial or access to a federal courthouse.” He asked whether “a heckler in today’s audience [would] qualify or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
The last item appeared to be a thinly-veiled reference to Rep. Jamaal Bowman (D-N.Y.) pulling the fire alarm in a congressional office building as lawmakers were getting ready to vote on a government spending bill.
At one point Justice Samuel Alito Jr. suggested that the DOJ’s interpretation of the Sarbanes-Oxley Act might be so broad that it may infringe on the First Amendment rights of run-of-the-mill protesters.
“For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses,” Alito incorrectly claimed. The Supreme Court actually has some of the harshest penalties for protesters within Washington D.C., and in the past, justices have advocated for “stiff, stiff sentences” for disrupting their court. Protesters at the court can expect to spend the night at the D.C. jail, and in some instances have been charged with disrupting a judicial proceeding.
The Supreme Court is so strict about protests that gatherings are legally prohibited on the grounds of the court — and conservatives previously called for activists to be arrested for protesting outside the justices’ homes.
Many of the hypotheticals presented by the justices centered around the limitations of the application of the law, and scenarios in which its misuse could violate First Amendment protections. The justices also engaged in a hefty amount of whataboutism regarding right-wing pet peeves, including questions regarding whether pro-Palestian protesters who blocked the Golden Gate Bridge earlier this week could be charged with similar offenses.
Notably, the Golden Gate protesters were not protesting a specific government event or rioting inside the U.S. Capitol.
The court’s concern over the First Amendment rights of protesters is a little ironic considering that on Monday, the court declined to intervene in Doe v. McKesson, a Fifth Circuit Court of Appeals decision that would subject protest organizers to massive financial — and potentially criminal — liability for any violence or illegal acts committed by event attendees.
The court “made clear that the First Amendment bars the use of an objective standard like negligence for punishing speech, and it read [NAACP v. Claiborne Hardware Co.] and other incitement cases as demanding a showing of intent,” wrote Justice Sonia Sotomayor in a statement about their decision not to take up the case.
Daniel D`Amico for SANREMO.FM
