Supreme Court seems divided over obstruction charge in Jan. 6 case that may impact Trump, rioters

The Supreme Court seemed deeply divided Tuesday over a challenge to a federal law that prosecutors used to charge more than 350 people who were part of the pro-Donald Trump mob that attacked the U.S. Capitol on Jan. 6, 2021.

After nearly two hours of argument, it was not immediately clear whether the court would allow the Justice Department to apply to the Jan. 6 rioters a statute that makes it a crime to obstruct or impede an official proceeding — in this case the joint session of Congress that convened to formally certify Joe Biden’s 2020 presidential victory.

Several conservatives, including Justices Neil M. Gorsuch and Samuel A. Alito Jr., expressed concern about giving prosecutors broad power that they suggested would allow the government to target peaceful protesters or hecklers who disrupt a court proceeding.

Other justices, including Amy Coney Barrett and Ketanji Brown Jackson, seemed interested in finding a way to limit the government’s discretion to apply the statute in a way that might still allow the Jan. 6 cases to proceed.

Two liberal justices — Elena Kagan and Sonia Sotomayor — seemed to embrace the Justice Department’s position that the law clearly applies to the Jan. 6 attack on the Capitol.

Defense lawyers say prosecutors improperly stretched the law, which was enacted after the exposure of massive fraud and the shredding of documents during the collapse of the energy giant Enron. More that 100 rioters have already been convicted and sentenced under the charge, and two of the four charges Trump faces in D.C. are related to the statute.

The case could directly impact Trump’s federal trial in D.C. for allegedly trying to remain in power after his 2020 defeat; if the justices rule broadly against the government, he could move to have those charges dropped.

The court’s ruling, likely to land in late June, has the potential to undo the convictions and sentences of those who have gone to trial or pleaded guilty, and upend the charges still pending for many more.

Three Jan. 6 defendants have had their sentences reduced ahead of a decision in this case by the Supreme Court.

Conservatives on the Supreme Court challenged Solicitor General Elizabeth B. Prelogar with a host of questions that echo right-wing media who argue that the Jan. 6 prosecutions are partisan. Among the cases raised: pro-Palestinian protesters blocking roads across the country, Rep. Jamaal Bowman (D-N.Y.) pulling a fire alarm in the Capitol just before a vote, and protests against Supreme Court Justice Brett M. Kavanaugh’s confirmation.

Those examples were brought up in amicus briefs from conservative lawmakers and advocacy groups who argue that the obstruction law is being used unfairly against the right but not the left.

In all those cases, Prelogar said, it would be a challenge to prove the required intent to block a specific proceeding from happening, or to prove that the disruption was extensive enough to count as obstruction. In the Jan. 6 cases, the government has relied on social media posts and text messages where rioters described their goal of stopping the vote count from taking place. They have also emphasized that Congress was forced to evacuate the building, which has not occurred during other protests inside the building.

Justice Alito is a strict textualist, but like Justices Clarence Thomas and Gorsuch, he sounded deeply skeptical of the government’s interpretation of the statute when he questioned Prelogar.

What if five people in today’s audience stood up, interrupted and shouted either that the Jan. 6 defendants were insurrectionists who should go to jail, he asked. Or that the Jan. 6 defendants are patriots and should be set free, delaying the proceeding for five minutes? Would that be a violation of the law?

Prelogar said it would be difficult for the government to prove corrupt intent in such a circumstance. Prosecutors would not, she said, pursue an obstruction charge for “minimal, de minimus, minor interference.”

She elaborated, “I can imagine defendants’ saying they had some protected free speech rights,” or were not aware they were not allowed to make brief statements in court.

More forcefully, Prelogar told Alito that his hypothetical was fundamentally different from what happened at the Capitol on Jan. 6, 2021. The more similar scenario, she said, would be if protesters “stormed into the courtroom, overwhelmed Supreme Court Police and forced justices and other participants to flee for their safety.”

Alito answered: “Absolutely. What happened Jan. 6 was very, very, serious. I’m not equating this with that. But we need to find what are the outer reaches of this statute under your interpretation.”

“The plain meaning of impeding is interfering with or getting in the way of progress, to hold up,” Alito told Prelogar. “You can say you’re not going to prosecute that. … But why isn’t it a violation” of the law under the Justice Department’s interpretation?

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