Supreme Court hears arguments over obstruction law used against January 6 rioters

In this court sketch, Jeffrey Green argues in front of the US Supreme Court in Washington, DC, on Tuesday, April 16, 2024.

The Supreme Court’s conservative majority indicated Tuesday that it may toss out a charge prosecutors have lodged against hundreds of people who took part in the January 6, 2021, riot on the US Capitol, a decision that could force the Justice Department to reopen some of those cases. 

During over 90 minutes of arguments, most justices signaled concern with how the Justice Department is using the law, which was enacted by Congress more than two decades ago. Critics claimed the felony charge, which carries a prison sentence of up to 20 years, was intended to prevent evidence tampering – not an insurrection. 

The high court’s ruling, expected by July, could affect the federal election subversion case against former President Donald Trump, who was also charged with the obstruction crime.  

Here’s what to know about Tuesday’s oral arguments: 

Traumatic day boils down to technical argument  

Mostly absent from oral arguments Tuesday was recognition of the traumatic and deadly events that took place just across the street from the Supreme Court three years ago. Instead, the discussion turned largely on a technical debate about the meaning of the words in the law – in particular, the word “otherwise.”   

That 2002 law makes it a felony to “corruptly” alter, destroy or mutilate a record with the intent of making it unavailable for use in an “official proceeding,” or to “otherwise” obstruct, influence or impede such a proceeding. Capitol riot defendant Jospeh Fischer, who brought the case to the high court, argued that, taken together, the law was geared toward prohibiting records destruction. But the Justice Department said it encompassed a wider range of actions – including physical intrusion – that would obstruct a proceeding. 

Conservatives bring up left-wing protests  

There was a heavy dose of “whataboutism” from the conservative justices, who repeatedly brought up left-wing protests while pressing both sides about which conduct they believed would be covered by the felony obstruction law.  

Justice Samuel Alito mentioned the disruptions at the Golden Gate Bridge on Monday, when protesters, angry about Israel’s war against Hamas, blocked rush-hour traffic.

Liberals appear united against January 6 rioter on textualist grounds 

The Supreme Court’s three liberals appeared to be lined up in favor of the Justice Department’s position that the federal obstruction law is broad enough to include the rioters’ conduct on January 6.  

Trump looms in background

Though Trump is not a party in the case, the appeal indirectly thrust him onto the Supreme Court’s docket for the third time this election year.

Special counsel Jack Smith has charged Trump with the same obstruction crime at issue in this case. The presumptive GOP presidential nominee would almost certainly use a win for Fischer to try to further undermine the Justice Department’s prosecution of the January 6 defendants.  

Read more about the takeaways from the arguments here.

The Supreme Court’s conservative majority appeared skeptical of a charge federal prosecutors have lodged against hundreds of people who attacked the US Capitol on January 6, 2021.

While the court’s three-justice liberal wing signaled support for the charge, the conservative majority raised a series of skeptical questions about its potential scope and whether it would criminalize other conduct, such as protests.

A decision against the government could reopen some 350 cases in which defendants have been charged with “obstructing” an official proceeding by pushing their way into the Capitol in 2021. The charge can tack up to 20 years onto a prison sentence.

Joseph Fischer, a former Pennsylvania police officer and January 6 defendant who brought the case to the Supreme Court, argued that the law at issue, created in response to the Enron scandal in 2001, was intended to stop witness tampering, not riots.

During more than an hour and a half of arguments, Chief Justice John Roberts and Justices Brett Kavanaugh, Neil Gorsuch and Samuel Alito were among those who appeared to take issue with the government’s reading of the law.

Justice Amy Coney Barrett poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Justice Amy Coney Barrett had a series of skeptical questions for the government, setting up the possibility of a 6-3 ruling against the Justice Department’s use of the obstruction statute in January 6, 2021, cases.

While Barrett did not speak for most of the arguments, she had an extended exchange with Prelogar that shed light on how she was thinking about the case. She offered an alternative January 6 scenario wherein the rioters never actually breached the Capitol but the Electoral College certification vote was still stopped.

Joseph Fischer’s attorneys have noted that their client “was not part of the mob that forced the electoral certification to stop; he arrived at the Capitol grounds well after Congress recessed.” 

Barrett also picked up on other conservatives’ inquiries over hypothetical scenarios of political demonstrations that interrupt official proceedings in which prosecutors, under the Justice Department’s reading, could bring the challenge.

“Do you think it’s plausible that Congress would have written the statute that broadly?” the justice asked.

Justice Brett Kavanaugh poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Justice Brett Kavanaugh, often a key vote in high-profile cases, threw cold water on the government’s position by noting the defendant was charged with six other crimes related to the January 6, 2021, Capitol riot.

Those crimes include disorderly conduct and assaulting or interfering with a police officer.

It was a key question signaling that Kavanaugh has concerns with the Justice Department’s position.

At least four conservative justices have had questions for Solicitor General Elizabeth Prelogar that suggest they remain unpersuaded by her arguments that the obstruction statute should be read broadly to use against the US Capitol rioters.

Several of the conservatives have offered examples of political demonstrations that interrupt official proceedings to suggest that — under the DOJ’s interpretation — those protesters would be subject to a 20-year prison sentence.

Justice Neil Gorsuch kicked off one such line of inquiry. It was picked up by Justice Samuel Alito, who grilled Prelogar on a scenario in which lawyers arguing before the Supreme Court were flustered by demonstrators who interrupted the proceeding to protest the treatment of January 6 defendants.

Justice Clarence Thomas told Prelogar that she seemed to “eschew” the approach a so-called textualist would take to this case and made other skeptical remarks when she was arguing.

And Chief Justice John Roberts appears focused on whether the provision in question should be connected to the types of crimes that tamper with evidence.

Responding to a question from Justice Elena Kagan, Solicitor General Elizabeth Prelogar said the Justice Department has used the obstruction law only in cases in which defendants knew Electoral College votes were being counted on January 6 and specifically tried to interfere with Congress.

At trial, Prelogar said, prosecutors are required “show that the defendants had knowledge that Congress was meeting in the joint session on that day” and “specifically intended to disrupt the joint proceeding.”

That proof of intent is why the Justice Department has used the obstruction charge on only around 350 of the more than 1,350 Capitol riot defendants, she said.

Prelogar added that some defendants have also been acquitted of the charge because of evidence that “the defendant thought the proceedings were over and wasn’t intending to obstruct,” or that a defendant “thought that law enforcement was waving him into the building.”

One past Supreme Court case that the Justice Department must contend with, as it tries to sway the justices to sign off on the use of the obstruction charge for January 6 rioters, is a precedent sometimes referred to as “the fish case.”

In the 2015 case, a commercial fisherman was catching undersized red grouper off the coast of Florida, then had them tossed back into the Gulf of Mexico, attempting to prevent federal authorities from catching his illicit fishing practices.

Whether he could face the obstruction charge came down to court’s determination that fish were a “tangible object.”

The court’s decision: No, the fish weren’t. The fisherman hadn’t obstructed.

A 5-4 majority of the Supreme Court that included Justice Ruth Bader Ginsburg, the leader of the court’s liberal wing at the time, and Justice Samuel Alito, a stalwart conservative, said a “tangible object” included items “used to record or preserve information,” such as a document – not a fish.

The case involved a separate obstruction criminal code section than the Justice Department has used in January 6 cases. So the DOJ is trying to thread the needle, writing to the court in the Fischer case: “The statute at issue here is worded and structured quite differently” from the fish case.

Justice Neil Gorsuch poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Justice Neil Gorsuch threw out several hypotheticals — a sit-in that disrupted a trial, heckling that interrupted the State of the Union, or pulling a fire alarm that delayed a congressional vote — that suggested he was skeptical of the government’s broad reading of the statute, which carries a maximum imprisonment of 20 years.

Gorsuch asked Solicitor General Elizabeth Prelogar whether those actions would qualify for 20 years in prison. Prelogar tried to lay out the other elements of the crime — such as the corrupt intent and whether it was a meaningful disruption of an official proceeding — that the government would have to prove to charge and convict under the law in such examples.

Gorsuch, however, pushed back at her attempts to distinguish those circumstances from how the Justice Department is advocating for the statute to be interpreted in this case.

Chief Justice John Roberts poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Chief Justice John Roberts, a key vote in this case, appeared skeptical of the Justice Department’s position, suggesting that the January 6 defendant in the case might have the better reading of the law.

Prosecutors say the provision at issue bars people from “obstructing” an official proceeding, and that the prohibition is a “catchall” that can cover all sorts of conduct — such as storming the US Capitol.

But Roberts focused on another way of the reading the law, as influenced by the words before it. And in this case, those words deal with evidence tampering — not riots.

Roberts said the DOJ shouldn’t read the two provisions as though they are standing alone.

Justice Clarence Thomas quizzed the lawyer representing the Justice Department about whether the government has ever used the law this way before.

“There have been many violent protests that have interfered with proceedings,” Thomas said. “Has the government applied this provision to other protests in the past?”

The question appeared to be a skeptical one, suggesting that the Justice Department might be applying the 2002 law at issue in the case in a way that’s not uniform. Some conservatives have argued the Justice Department is treating Capitol rioters far harsher than people arrested at protests in 2020, for instance.

Solicitor General Elizabeth Prelogar said that the Justice Department has consistently applied the law beyond evidence tampering but seemed to acknowledge there was a direct parallel to another case.

Addressing arguments that the obstruction statute has never been used this way before, Justice Sonia Sotomayor said the January 6, 2021, Capitol riot was a first-of-its-kind event.

Joseph Fischer’s attorney, Jeffrey Green, however, expressed some disagreement with that assessment, arguing that the violent protests at a federal courthouse in Portland, Oregon, during the demonstrations against racial injustice in 2020 was another such example.

Solicitor General Elizabeth Prelogar is now arguing in defense of the obstruction statute used to prosecute more than 350 people accused of joining the mob on January 6, 2021.

Prosecutors have said that the charge should apply to the January 6 cases because the plain meaning of the words “obstruct” an “official proceeding” should cover the attack that interrupted Congress’ counting of ballots to certify President Joe Biden’s win in the 2020 election.

“On January 6, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power,” Prelogar said.

She continued, “many crimes occurred that day. But in plain English, the fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election.”

The liberal wing of the court probing how the obstruction law relates to tampering physical evidence — no matter where the court lands — is only one of the issues in this case. But it’s an important part of whether this case might affect Donald Trump.

In a small subset of January 6, 2021, rioter cases, the obstruction of justice felony is being used as the most severe charge. If the rioters have gone to trial, prosecutors have brought in evidence before the jury about the paper electoral ballots being carried into and out of the Senate chamber before the riot caused its evacuation.

In Trump’s case, there’s an even less tenuous connection to paper evidence. That’s because prosecutors have charged Trump with obstructing the official proceeding of Congress related to several different actions he took after the 2020 election — not just on January 6.

Among them, prosecutors say, was a Trump-led conspiracy to falsify electoral vote certificates and send them to Congress.

Justice Samuel Alito, a stalwart conservative, pressed the attorney representing Jospeh Fischer on the plain meaning of the law at issue in the case.

In this case, much hangs on the word “otherwise,” which separates two clauses — one barring tampering or altering a document and the other prohibiting the obstruction of an official proceeding.

Fischer’s attorney, Jeffrey Green, contends the word connects the two sections, meaning the entire provision deals with evidence tampering. Alito appeared to question that theory — or at least test it.

“One might say it can certainly be read the way the government reads it,” he said, and that “might even be the more straightforward reading.”

Justice Amy Coney Barrett questioned whether prosecutors could make their case against January 6 defendants by trying to prove they were blocking Electoral College vote certificates from “arriving to the vice president’s desk.”

Barrett raised the possibility in case the high court agrees that prosecutors improperly used the obstruction statute by accusing January 6 defendants of obstructing the congressional proceedings to certify the electoral vote count.

Capitol riot defendant Joseph Fischer’s attorney has argued the statute was improperly being applied to his client because it requires him to alter, destroy or mutilate some kind of evidence – not a congressional proceeding.

Fischer’s attorney said that theory would be “definitely closer” to his reading of the statute, but that he still believes Fischer should be charged only if he “change[d] documents” in a way that would “actually affect their integrity.”

The Supreme Court’s three liberal justices appeared in early questioning to be lined up in favor of the Justice Department’s position that the federal obstruction law being challenged Tuesday is broad enough to include the rioters’ conduct on January 6, 2021. 

The law, Justice Elena Kagan said, could have been written by Congress to limit its prohibition to evidence tampering. But, she stressed, “it doesn’t do that.”

Kagan and Justices Sonia Sotomayor and Ketanji Brown Jackson have been pressing Joseph Fischer’s attorney, Jeffrey Green, on the plain text of the law — embracing the notion of “textualism,” or reading the law for its plain meaning without considering legislative history and other factors. If that holds, it suggests they are supportive of the Justice Department’s position.

They promoted this theory based on the text of the statute itself.

Jackson similarly noted that the language in the statute “does not use the term ‘evidence’” but rather “uses the term ‘official proceeding,’” which is defined as including a congressional proceeding.

Lawyers for one of the January 6 defendants have argued that the law applies only to tampering with evidence, not disrupting a proceeding, like the joint session of Congress on January 6. Fischer breached the US Capitol that day and prosecutors say his involvement in the riot obstructed the Congress’ certification of the 2020 election, which was delayed for several hours.

Justice Sonia Sotomayor poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Justice Sonia Sotomayor floated a hypothetical comparing the obstruction law at the center of the challenge to the rules a theater might set for its audience.

Sotomayor’s question for Joseph Fischer’s attorney Jeffrey Green suggested she was sympathetic to the Justice Department’s argument for a broad reading of the law that would cover an interruption of Congress’ certification proceeding.

Sotomayor told Green to imagine that there is a sign on a theater telling audience members that they will be kicked out “If they photograph or record the actors or otherwise disrupt the performance.”

“If you start yelling, I think no one would question that you can be expected to be kicked out under this policy,” Sotomayor said.

Justice Clarence Thomas kicked off the questioning Tuesday by asking the attorney representing Capitol riot defendant Joseph Fischer a technical query about how to read two provisions of the law at issue together.

The first section of the law bars people from tampering with documents and records.

The second section, which is at the center of the case, prohibits people from “otherwise” obstructing an official proceeding. The question is whether that second section should be read as part of or in opposition to the first.

Thomas appeared to be giving Fischer’s attorney a chance to respond to the government’s position that the second section is a catchall that should cover the actions that occurred on January 6, 2021.

“You could just as easily say that Congress is really concerned about things that obstruct influence or impede official proceedings,” Thomas said.

Arguments are underway at the Supreme Court in Fischer v. US, a case that could reduce criminal charges lodged against more than 350 people who took part in the attack on the US Capitol on January 6, 2021.

At issue is a charge filed by prosecutors in several of those cases that prohibits people from “obstructing” an “official proceeding.”

The case also implications for former President Donald Trump, who was charged with the same crime in special counsel Jack Smith’s election subversion case.

Jeffrey Green, who is representing a former Pennsylvania police officer charged in the Capitol attack, is up first. He is arguing that the law at issue in the case was intended to deal with evidence tampering, not riots.

Justice Clarence Thomas poses for an official portrait at the Supreme Court in Washington, DC, in 2022.

Supreme Court Justice Clarence Thomas is in attendance Tuesday after he did not attend oral arguments Monday and provided no explanation for his absence.

Chief Justice John Roberts announced Monday that Thomas would not take part shortly after the court sat for arguments in a public corruption case. In the past, the court has often provided some explanation, such as noting that a justice was feeling ill. Sometimes, those justices take part in arguments remotely.

Thomas, 75, missed several arguments in 2022 after being diagnosed with an infection.

The Supreme Court did not respond to a request for additional information about Thomas’ absence on Monday, when his colleagues heard arguments in two cases.