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Supreme Court Voiced Skepticism Over Use of Obstruction Statute In J6 Cases

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OPINION: This article may contain commentary which reflects the author's opinion.


In a case that has direct implications in at least one of special counsel Jack Smith’s filings against former President Donald Trump, U.S. Supreme Court justices voiced skepticism for the Justice Department’s copious use of an obstruction statute in charges against the majority of those arrested after taking part in the Jan. 6, 2021, riot at the U.S. Capitol Building.

“The Supreme Court’s conservatives appeared skeptical Tuesday of the way federal prosecutors have deployed a felony charge devised in the aftermath of the 20-year-old Enron financial scandal against about 350 rioters convicted or accused of storming the Capitol,” Politico reported.

“However, after nearly two hours of argument on the subject, it remained unclear whether the justices had a consensus on how to narrow the interpretation of the law, which prohibits obstructing congressional proceedings,” the outlet continued.

It is possible that the court may adopt a legal interpretation that would allow most of the cases filed by the Justice Department against Jan. 6 defendants, using the obstruction statute to charge them with a serious felony, to remain valid, Politico claimed. However, based on the reported back-and-forth between Solicitor General Elizabeth Prelogar, who was arguing in support of the charge on behalf of the DOJ, several justices seemed very skeptical:

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Several of the Republican-appointed justices appeared to question whether the Justice Department has been evenhanded in its prosecution of the Jan. 6 defendants, echoing claims that they are being treated far more harshly than other protesters who have disrupted congressional proceedings or even arguments at the Supreme Court.

“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, and for 20 years in prison?” Justice Neil Gorsuch asked, citing the maximum sentence available under the obstruction provision in an apparent reference to Rep. Jamaal Bowman (D-N.Y.), who pulled a fire alarm in a Capitol office building which caused evacuations and a delay in a government funding vote. He pleaded guilty later to a misdemeanor.

He appeared to refer to an episode last year when Rep. Jamaal Bowman (D-N.Y.) pulled a fire alarm in a Capitol office building, causing an evacuation during a government funding vote. He later pleaded guilty to a misdemeanor charge.

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“Let’s say that today five people get up one after the other and they shout either, ‘Keep the January 6 insurrectionists in jail!’ or ‘Free the January 6 patriots!’ And as a result of this, our police officers have to remove them forcibly from the courtroom. And let’s say we have to delay the proceeding for five minutes,” Justice Samuel Alito posited.

Prelogar remarked that minor, brief interruptions would not meet the threshold for “obstruction” under the statute. However, Justice Alito promptly countered that the law also prohibits behavior that “impedes” a proceeding.

Prelogar emphasized that there were no historical precedents comparable to the attack on the Capitol, which she characterized as a direct assault on a constitutional process. She added that out of the over 1,350 individuals charged with the riot, only about a quarter faced the obstruction charge. This was partially due to the challenging obstacles in proving that rioters were both aware of the congressional proceedings and had explicit intentions to disrupt them.

Justice Clarence Thomas said the incident was a “violent protest.” He argued that there have been “many” such demonstrations “that have interfered with proceedings” before wondering aloud whether the DOJ had ever charged anyone else under the obstruction statute to deal with that violence.

Politico added: “The outcome of the case argued Tuesday could affect Trump, who has been charged with two counts of obstruction by special counsel Jack Smith, over Trump’s involvement in efforts to prevent Congress from certifying the election.”

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