Ketanji Brown Jackson Sides with Conservatives in Jan. 6 Case

Supreme Court Justice Ketanji Brown Jackson sided with conservatives in a crucial decision Friday that could see many prosecutions of participants in the January 6, 2021 riot at the U.S. Capitol overturned, or dropped.

As Breitbart News reported, the 6-3 majority decision in the Fischer case held that the Department of Justice had taken too broad a view of 1512(c)(2), a law that prohibits destruction of evidence but was not intended for protests.

Unless the defendants could be shown to have interfered with the delivery of documents to Congress, they could not be prosecuted under the statute — as hundreds of people, including former President Donald Trump, have been.

Justice Jackson, a left-wing judge nominated by President Joe Biden, wrote a concurring opinion in which she argued that the law could not be stretched for “patriotic” reason:

In the United States of America, “men are not subjected to criminal punishment because their conduct offends our patriotic emotions or thwarts a general purpose sought to be effected by specific commands which they have not disobeyed. Nor are they to be held guilty of offenses which the statutes have omitted, though by inadvertence, to define and condemn.” Viereck v. United States, 318 U. S. 236, 245 (1943). Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis …

Notwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution, today, this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here. I join in the Court’s opinion because I agree with the majority that §1512(c)(2) does not reach “‘all forms of obstructive conduct’” and is, instead, “limited by the preceding list of criminal violations” in §1512(c)(1).

Interestingly, Justice Amy Coney Barrett, a conservative jurist nominated by Trump, wrote the dissenting opinion, in which the Court’s minority agreed that 1512(c)(2) was not intended for use against riots, but “statutes often go further than the problem that inspired them, and under the rules of statutory interpretation, we stick to the text anyway.”

The case is Fischer v. United States, No. 23-5572, in the Supreme Court of the United States.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, “The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency,” now available on Audible. He is also the author of the e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.