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lite.cnn.com - on gopher - inofficial
ARTICLE VIEW:
January 6 rioters want the Supreme Court to let them off the hook from
obstruction charge
By John Fritze and Hannah Rabinowitz, CNN
Updated:
5:00 AM EDT, Tue April 16, 2024
Source: CNN
The Supreme Court will hear arguments Tuesday from a former
Pennsylvania police officer who , in a case that could undermine
federal charges against more than 350 rioters.
The court’s decision could also have significant ramifications for
former President Donald Trump, who was charged with the same criminal
offense.
Special counsel Jack Smith charged Trump with violating a federal law
enacted in 2002 that prohibits people from obstructing an “official
proceeding.” Prosecutors filed that same charge against hundreds of
rioters, such as the who climbed the Senate chamber’s dais in horned
headdress, and the leader of the Oath Keepers, who had in the weeks
before the riot.
The charge can add up to 20 years to a prison sentence.
Now, the Supreme Court will consider whether the prosecutors’
interpretation of the law can be used against the rioters and whether
the convictions already secured will stick.
Trump would almost certainly use a decision against the government to
fuel criticism he has directed at prosecutors as he has tried to
reframe the January 6 attack on the Capitol as a “beautiful day.”
And that means the stakes are high not only for Trump and the January 6
defendants but also the Justice Department.
“Any finding that the Justice Department has been charging improperly
in any of these cases would be very politically damaging,” said
Claire Finkelstein, a professor of law and philosophy at the University
of Pennsylvania Carey Law School. “This is a case in which we want
our system as a whole to speak with a single voice and weigh in on the
side of rule of law.”
Trump takes over Supreme Court’s docket
The high court will hear arguments in Fischer v. US on the second day
of on separate state charges that he falsified business records to hide
the reimbursement of hush money payments to adult film star Stormy
Daniels. (Trump has pleaded not guilty in that case, and he has tried
to brand all the criminal charges against him as motivated by
politics.)
The charge at issue in the Supreme Court case stems from a law Congress
enacted in response to a series of corporate accounting scandals,
including the . That 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.
Prosecutors say 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.
Critics counter that the law was intended to prevent evidence tampering
before a trial or investigation.
Though Trump is not a party in the case, the appeal has indirectly
thrust him onto the Supreme Court’s docket for the third time this
election year. In March, the justices unanimously ruled that the former
despite claims he violated the 14th Amendment’s “insurrectionist
ban” because of his actions on January 6.
Next week the court will hear arguments on Trump’s explosive claim
that he is entitled to immunity from the special counsel’s federal
election subversion case, including the obstruction charge.
‘Stinging reminder’ at stake for prosecutors
Joseph Fischer, a who brought the case to the Supreme Court, told the
justices that by the time he arrived at the Capitol on January 6,
Congress had already recessed. His lawyers said Fischer spent less than
four minutes inside the building and that he advanced fewer than 25
feet.
Prosecutors paint a different picture. They say Fischer warned his
police chief by text that the day might get violent. He texted that
protestors should drag Democrats “into the street and have a mob
trial.” Fischer captured a video on his own cell phone in which he
can be heard yelling “charge!” before he ran into the Capitol,
prosecutors say.
A grand jury weeks after the attack that included charges of civil
disorder; assaulting, resisting, or impeding officers as well as the
obstruction charge. The case before the Supreme Court involves only
that last charge.
The US Court of Appeals for the DC Circuit combined Fischer’s case
with two others and ruled that the charge could be used against January
6 defendants – siding with 14 of 15 district court judges who ruled
the same way. All three defendants appealed to the Supreme Court, but
the justices granted only Fischer’s case. The other two are pending
and will likely be summarily resolved after Fischer.
Yet the political ramifications are potentially enormous.
Exactly how much impact the court’s ruling may have on other January
6 cases is unclear. Most defendants who were convicted of the
obstruction charge and sentenced to prison were also convicted of
additional felony or misdemeanor charges, according to a CNN analysis.
The average sentence in those cases was just over four years, the
analysis shows – far less than the 20-year maximum the obstruction
count carries.
“A Fischer win would not be a revolutionary blow to the DOJ’s
Capitol riot cases, but would be a stinging reminder that improbably
broad interpretations of criminal statutes will not be tolerated,”
said Nicholas Smith, who represented the defendants before the DC
Circuit.
Trump would almost certainly use a win for Fischer to try to further
undermine the Justice Department. Depending on how the court rules, he
might also attempt to have that charge thrown out in his own case.
The special counsel appears eager to head that argument off.
In a filing last week at the Supreme Court in Trump’s immunity case,
Smith argued the obstruction charge should stick against Trump even if
Fischer wins. In a footnote, Smith pointed out that Trump’s charge is
based on the fake slate of electors he attempted to have submitted to
Congress.
“The Trump charges probably survive almost no matter what the court
does in Fischer,” said Randall Eliason, a former federal prosecutor
and George Washington University law professor.
Progressive groups have called on Justice Clarence Thomas to recuse
himself from cases involving January 6 because his wife, conservative
activist Ginni Thomas, acknowledged she attended Trump’s rally at the
White House before the attack. Text messages reviewed by a
congressional committee also showed that Ginni Thomas repeatedly texted
senior officials inside the White House after the election to offer her
support.
Thomas has largely ignored those requests.
Also central to the case: An undersized grouper
Fischer relies heavily on a 2015 that centered on a commercial
fisherman who was caught with undersized red grouper on his boat. The
fisherman had ordered the offending fish to be tossed overboard before
authorities could confirm he had violated federal fishing regulations.
The fisherman was convicted of a related crime that prohibits people
from altering or destroying “any record, document, or tangible
object” with the intent to obstruct an investigation. The
government argued the fish fell within the definition of “tangible
object.”
But 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, disagreed. Viewed in
context, a plurality of the court reasoned, a “tangible object”
included items “used to record or preserve information,” like a
document – not a fish.
Fischer told the Supreme Court that context and history of the law at
issue in the January 6 prosecutions is just as clear. It was meant to
apply, his attorneys argue, to efforts to tamper with evidence, not to
charge people involved in a riot.
But that interpretation has drawn considerable pushback from the
government and some outside experts. The way the law at issue in the
January 6 charges is written is different from how it looks in the
earlier case.
The section on “obstruction” is more separated, which the Justice
Department argues suggests Congress intended to lay down a broad
prohibition on disrupting congressional proceedings.
Eliason thinks the earlier decision about the undersized fish will
probably ultimately work to the government’s benefit. Among those who
joined the dissent in the fisherman case was the late Justice Antonin
Scalia, a leader of the widely accepted notion of interpreting the law
based on its words rather than its legislative history or other
factors.
“If they’re being consistent, at least two out of the three Trump
justices ought to vote against Fischer’s positions,” Eliason said.
“The ambiguity is not there. It’s a broad statute, but it’s not
unclear.”
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