WASHINGTON, DC –The U.S. Supreme Court sounded skeptical of the Biden Justice Department during oral arguments Tuesday regarding whether a man involved in events at the Capitol on January 6, 2021, can be charged under a law that severely punishes obstructing an official proceeding.
The landmark case could upend around 350 cases in which defendants – around 100 of which have been convicted or pled guilty – were indicted on similar charges under the same provision.
The decision will almost certainly have major implications for the Biden Administration’s prosecution of Donald Trump, resulting in the most serious charges against him being thrown out of court.
The government indicted defendant Joseph Fischer after January 6 under 18 U.S.C. § 1512(c)(2), a provision enacted after the Enron scandal for one who “corruptly … obstructs, influences and impedes any official proceeding,” indicting him on six other charges as well. Fischer’s attorneys argue the charge in question inappropriately relies on that provision, which was clearly intended to cover concealing or destroying evidence related to white-collar crime.
That statute carries a potential 20 years in federal prison.
Solicitor General Elizabeth Prelogar argued Tuesday that Fischer and others engaged in “a deliberate attempt to stop the joint session of Congress from certifying the results of the election” and “obstructed Congress’ work in that official proceeding.”
Jeffrey Green, an attorney for Fischer, said the charge was inappropriate. “Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document,” he said.
But conservative Justices questioned if the government went too far with the charge, expressing concerns over interpretation of the terms “obstruct” and “impede” and that the statute could be used to prosecute those engaging in sit-ins and other demonstrations.
“We need to find out what are the outer reaches of this statute under your interpretation,” Justice Samuel Alito questioned.
Justice Neil Gorsuch questioned, “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? 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?”
He seemed to reference Rep. Jamaal Bowman (D-NY), who admitted to breaking the law in September of 2023 by pulling a fire alarm before a critical House vote on federal spending, allegedly to postpone the vote while the Democrat-led Senate could assemble to take the initiative with its own version of spending legislation.
Bowman was not charged with a federal crime and pleaded down a misdemeanor in D.C. Superior Court.
Chief Justice John Roberts and Justice Clarence Thomas seemed to question if the provision was being applied unevenly, perhaps for political reasons.
“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 and has this been the government position throughout the lifespan of the statute?”
“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 come to Prelogar’s defense, saying the situation was unprecedented “with people attempting to stop a proceeding violently. So I’m not sure what a lack of history proves.”
Roberts suggested that in determining the 1512(c)(2) charge applied to the defendant, the prosecutors may have ignored the language in (c)(1) which made clear the clause dealt with the destruction of documents – of which even prosecutors do not charge the defendant. Essentially, instead of understanding (c)(2) was a continuation of (c)(1), the prosecutors address (c)(2) as a standalone provision, violating the judicial doctrine of ejusdem generis.
He referred to an opinion the Court issued Friday in Bisonnette which “said that the general phrase is controlled and defined by reference to the terms that precede it.”
Kavanaugh also appeared skeptical of Prelegar’s assertion that ejusdem generis did not apply.
Although Trump is not part of Fisher’s case, the statute is a central piece of Jack Smith’s criminal prosecution of the former president. If the Supreme Court rules that Fischer cannot be charged for obstructing an official proceeding, Smith’s case against Trump could be significantly handicapped.
The case is Fischer v. United States, No. 23-5572, in the Supreme Court of the United States.
Bradley Jaye is a Capitol Hill Correspondent for Breitbart News. Follow him on X/Twitter at @BradleyAJaye.
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