It Was A Good Day for January 6 Insurrectionists In The Supreme Court

Source: Michael Chow

On Tuesday morning, The Supreme Court spent about an hour and a half deliberating on whether or not they should make it difficult for the Justice Department to prosecute the hundreds of people who participated in the attack on the US Capitol back in January 2021.

It looks like, after Tuesday’s discussions, the majority of the justices will support the insurrectionists. Although, it’s unclear how those justices will justify their decision.

What’s The Subject Of The Debate?

The case, Fisher v. United involved a federal law that states that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” is guilty of a very serious federal felony and can be imprisoned for up to 20 years.

Source: U.S. Senate/Handout via Reuters

However, as Solicitor General Elizabeth Prelogar noted during Tuesday’s discussion sentences for January 6 defendants convicted under this law have typically been shorter, usually lasting from just under one year to around two years.

Over 1,265 Arrested, 330 Charged

The Justice Department reported that over 1,265 people have been arrested for their involvement in the attack on the Capitol. About 330 individuals have faced charges under the obstruction statute in Fischer. One of them is ex-president Donald Trump.

Source: REUTERS/Shannon Stapleton

A federal appeals court ruled in this case that the obstruction statute is crystal clear: it covers any attempt to obstruct a congressional proceeding meant to certify a presidential election result—just like the one the January 6 rioters disrupted.

Debate Over Narrowing The Scope Of The Statute

Jeffery Green, a lawyer representing a January 6 defendant proposed a method to read the statute more narrowly. But only a few of the justices supported his suggestions. Many of the justices voiced worries that the law is too broad, fearing that it could lead to prosecuting individuals for relatively harmless actions and it should be narrowed. 

Source: Wikimedia/Steve Petteway

For instance, Justice Samuel Alito showed unusual sympathy for hecklers who disrupted a Supreme Court hearing. He suggested that having them face prosecution under a statute that carries a potential 20-year sentence is going too far.

Split Opinions Emerge On Interpretation Of Obstruction Statute

Justice Neil Gorsuch echoed similar concerns citing an example of charging someone who peacefully carries out a sit-in to stall a court hearing or someone who pulls a fire alarm to disrupt an official proceeding under the statute.

Source: Wikimedia/Franz Jantzen, Collection of the Supreme Court of the United State

Tuesday’s argument showed a divergence of opinions. While Green presented his case, many justices voiced criticism of his narrow interpretation of the ban on obstructing an official proceeding. Even Alito, who usually supports outcomes favored by the Republican Party, joined in the critique. 

Justice Department Optimism Shattered By Prelogar’s Arguments

He told Green that he “may be biting off more than [he] can chew” by arguing that the statute must be read to benefit his client.

Source: REUTERS/Kevin Lamarque

By the time Green returned to his seat, it looked like he was going to lose in a 9-0 decision. But any positivity that the Justice Department might have had earlier in the argument must have been ravaged as soon as Prelogar began her argument.

No Legal Theory To Permit Limiting Obstruction Statute

While most of the justices did fire at her with an avalanche of skeptical questions, most of the judges who appeared to favor limiting the obstruction statute couldn’t agree on a single legal theory that would permit that move. 

Source: X/MCLTiger10

So, in summary, it seems likely that many January 6 defendants will fare well in this case. However, it’s uncertain how the Court will justify this outcome.

What Was Green’s Argument?

Green’s main argument is that subsection (1)’s language referring to records or documents carries through to subsection (2). So even though subsection (2) is written broadly to bar any effort to obstruct, influence, or impede an official proceeding, it should be limited to only apply to obstructions involving documents or other forms of “evidence tampering.”

Source: Reuters/Erin Schaff

But this is not how the English language typically works. And only two justices — Chief Justice John Roberts and Justice Brett Kavanaugh — were in support of the law being read this way.

Clear Rules, Clear Consequences

As Justice Sonia Sotomayor noted early in her argument if there is a sign in a theatre that reads, “You will be kicked out of the theatre if you photograph or record the actors, or otherwise disrupt the performance,” no one would take offense or be surprised if an audience member is booted out if they started yelling. 

Source: X/EdKrassen

It would make no sense to interpret this sign to only prohibit photography or recording.

Balancing Clear Threats With Potential Overreach

It’s tough to see the obstruction law any other way when it comes to the rioters who broke into a government building to halt the election certification causing all of Congress to scramble around for safety. 

Source: X/RamlordMvb

But, many justices are also worried about how this same law could be used in other, less extreme cases that aren’t as troubling.

Defining The ‘Outer Reaches’ Of The Statute

As Alito mentioned during the argument, “What happened on January 6 was very, very serious,” but we need to figure out the “outer reaches” of the statute.

Source: AP/J. Scott Applewhite

And so Prelogar faced a long list of hypothetical applications of the obstruction statutes and murky allegations that the government was only applying the law to pro-Trump rioters. 

Law Has Never Been Used Before

Justice Clarence Thomas questioned whether this law had ever been used against a violent protest before. Prelogar admitted it hadn’t, but explained that’s because the January 6 attack was unprecedented.

Source: CNS/Courtesy of University of Notre Dame/Peter Ringenberg

Several justices expressed worries about people facing felony charges for what Alito termed “minor impediments,” like if a heckler caused a proceeding to be delayed for a few minutes. 

How To Avoid The Problem?

The worry is that people who partake in minor disruptive political protests will have to face charges for felonies under the law.


There are a few ways to avoid this problem. Prelogar noted that the law targets actions that “obstruct” a proceeding, and minor disruptions might not qualify — although this idea didn’t really allay the doubts of anyone.

Judge Walker’s Suggestions

Trump-appointed Judge Justin Walker also voiced his opinion on how to limit the law. Walker stated that the statute only applies to someone who “corruptly” obstructs a proceeding.

Source: X/mamaria33

He wrote in an opinion that this word should be made to apply only to defendants who acted “with an intent to procure an unlawful benefit” for himself or someone else. 

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Mary Scrantin

Written by Mary Scrantin

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