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- Attorneys for Jan. 6 defendant Joseph Fisher argued that prosecutors turned a “catch-ball” law into a “dragnet” by filing a broad obstruction charge.
- Attorney General Elizabeth Prelauger said prosecutors must prove the defendants intended to disrupt certain sessions, such as those of Congress that limit the counting of Electoral College votes.
The Supreme Court on Tuesday weighed in on broad obstruction charges brought against a quarter of the defendants in the Jan. 6, 2021, attack on the U.S. Capitol, including former President Donald Trump.
Joseph Fisher’s lawyer, Jeffrey Green, said on January 6 that prosecutors were broadly applying a 2002 law adopted in the wake of financial scandals, leaving the government’s interpretation untouched. He said even peaceful protesters could be sentenced to 20 years in prison. court.
Green urged the justices to narrowly interpret the law to apply only to document destruction and avoid “turning a catch-all clause into a drug web.”
If the high court sides with Fisher, a former Pennsylvania state trooper, hundreds of people convicted or on trial for breaking into the Capitol on January 6th will lose their lives. The most serious felonies could be dismissed, which would be a victory for these defendants and their supporters, including Mr. Trump. They claim they were unfairly targeted.
But Attorney General Elizabeth Preloger, representing the Justice Department, told the justices that the limitations of the obstruction law were clear, noting that three-quarters of the defendants in the Jan. 6 case had not been charged with the same crime. . She argued that the law applies to interference with official meetings, such as Congress’s counting of electoral votes, with corrupt intentions, such as threats of violence.
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Several justices said they were exploring the boundaries of what crimes the law should cover.
“We need to figure out what the scope of this law is under your interpretation,” Justice Samuel Alito told Preloger.
Justice Amy Coney Barrett asked how broadly the law had been interpreted. “Should I be worried?” Barrett asked Preloger.
Is pulling a firearm or heckling at the State of the Union an obstruction charge? Gorsuch asks
Justice Neil Gorsuch and Mr. Alito asked whether nonviolent protests can be prosecuted. Gorsuch asked whether setting off a fire alarm before a vote in Congress, obstructing a court of law, or heckling a president during his State of the Union address could be punishable by up to 20 years in prison. .
Alito asked whether a courtroom protest would merit charges if five people who stood up to speak about Jan. 6 were forcibly removed and arguments were delayed for five minutes.
“Has the government applied this provision to other protests in the past? And has this been the government’s position throughout the life of this law?” Justice Clarence Thomas asked.
Preloger said there have been no previous charges related to protests under the law, but it has been used in cases other than document shredding, such as tipping off suspects about grand juries and undercover police officers.
In response to Alito and Gorsuch, she charges short-term protests under obstruction laws because the disruption was short-lived and protesters have First Amendment claims. said it is difficult. She compared it to the violence of January 6th.
“If they stormed a courtroom, overpowered Supreme Court police, demanded that the justices and other participants flee for safety, and did so with clear evidence of intent to disrupt, I think we have a different attitude,” Preloger said.
Justice Sonia Sotomayor took a friendly stance toward the government’s position. She said even if theaters post signs threatening to kick out people who take photos or audio recordings of actors, audience members can be kicked by loud voices disrupting performances.
“The problem is not how it was disrupted, but the fact that it was disrupted,” Sotomayor said.
Judge focuses on the meaning of the words “if not”
The disputed language of the law states that “unauthorized” destruction or concealment of government records or “otherwise obstructing, influencing, or impeding an official proceeding, or attempting to do so. It is prohibited to do that.
“If not” is an important part of legal disputes. Mr. Green argued that “if not” meant that the law covered the destruction of documents. Green argued that if the law were applied to disrupting official meetings, it would be too draconian and broad.
“The government wants to impose penalties of up to 20 years on potential peaceful protests,” Green said. “Even if it’s peaceful, people are going to be worried about what kind of protests they’re going to have because the government has this weapon.”
But Preloger argued that “otherwise” is a “classic catchall” employed by lawmakers to cover creative forms of obstruction.
“After Enron, what Congress thought was, ‘We don’t want these novel ways that we’re thinking of to obstruct the process in a way that doesn’t constitute a crime.’ We want to cover it up,” Preloger said of the criminally corrupt frame of mind.
Justice Alito said the government’s interpretation “may be simpler” and urged Greene to explain why the government’s interpretation is better.
“I think you’re biting off more than you can chew by suggesting that the Others Clause can only be read the way you read it, if that’s what you’re really suggesting,” Alito said. Told.
Justice Elena Kagan said that in 2002, after the Enron scandal, Congress adopted a law that included document shredding to fill the prosecution gap.
“They said, ‘Let’s have a backstop clause,'” Kagan said. “This is their backstop provision.”
Sentence under law is much shorter than maximum 20 years: lawyer
Fisher, a former central Pennsylvania police officer, faces charges of obstruction and several misdemeanors for allegedly breaking into the Capitol Rotunda, pepper spraying him and forcing him to be chased out by police.
Two of President Trump’s four charges in his federal election interference case are based on the same law, so the Supreme Court’s decision could affect him and hundreds of others. But special counsel Jack Smith said that even if Fisher were to win, he would not be able to indict Trump for other actions he took to solicit alternate presidential electors before Congress counted votes on January 6. He argued that there was a possibility that
Despite Green’s concerns that the maximum penalty under the law is 20 years, Preloger said the prison sentence starting Jan. 6 was much shorter. Congress adopted the law in 2002 after the Enron scandal, when accountants at failed energy companies were found to have destroyed documents, but no charges were brought against them.
Approximately 350 of the 1,350 defendants on January 6 were charged under the Obstruction Act. Prosecutors charged the defendants with attempting to disrupt Congress knowing Congress was in session, threatening or intending to use violence, and bringing in tactical and military equipment. He said he did.
“We’ve never had a situation like this where they tried to violently stop a lawsuit,” Sotomayor said.
The average sentence for a Jan. 6 defendant who committed a violent act with no prior criminal history was 10 to 16 months, Preloger said. The average sentence for nonviolent defendants was six to 12 months.
The average sentence for about 50 defendants whose only felony conviction was obstruction of business was 26 months, Preloger said.
“There is no reasonable argument that the statutory maximum has any effect on sentencing,” Preloger said.
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