#SCOTUS is hearing a challenge today to a federal #law prosecutors used to charge >350 people who attacked the Capitol on #Jan6.
>100 have been convicted & sentenced under the statute for obstructing or impeding an ofcl proceeding—the joint session that convened to confirm Biden’s victory.
The case could impact #Trump’s federal trial in DC for trying to remain in power, 2 charges he faces are based on the same #obstruction statute.
#SCOTUS’ ruling, likely to land in late June, has the potential to undo the convictions & sentences of those who have gone to trial or pleaded guilty, & upend the charges still pending for many more.
3 #Jan6 defendants already had their sentences reduced. #ClarenceThomas is back after an unexplained absence from Monday’s court session.
Before arguments began Mon, Chief Justice John Roberts announced in court that Thomas would still participate in the cases, based on the briefs & transcripts.
#ClarenceThomas was first to ask a question, asking #JosephFischer’s attorney a very specific question about his reading of the #obstruction statute. “How do we determine what these provisions have in common. Do we look after the ‘otherwise’ or before?” he asked. Critics have said Thomas should not have any role in #Jan6-related cases because his wife, #GinniThomas, was involved in efforts to undo the results of the 2020 election & attended #Trump’s rally the morning of the Capitol attack.
The word ‘#otherwise’ in the #obstruction statute & why it matters The #law includes a penalty of up to 20 yrs in #prison for anyone who “corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
Solicitor General Elizabeth B. Prelogar, defending the #DOJ, told #SCOTUS in filings that the second clause should be read as a “catchall” that ensures unanticipated methods of obstructing an official proceeding are prohibited. The word “#otherwise” means “in a different manner,” Prelogar wrote, & makes clear that Congress intended to prohibit obstruction broadly, beyond the destruction of records or documents listed in the first section of the #law.
#JosephFischer’s attorneys strongly disagree. They say that the two sections of the statute must be read together & that the court must reject the government’s “boundless” interpretation. The #obstruction measure is all about preserving the availability of evidence, they argue, as well as Congress’s interest in protecting the integrity of an investigation or other official proceeding.
Justice #AmyConeyBarrett asked a question that suggests that the 2 election #obstruction charges against #Trump could survive, even if the court agrees w/challengers that the statute is not appropriate for the #Jan6 rioters. Barrett asked whether the #law prohibiting #evidence impairment would prohibit altering electoral vote certificates, as Trump is alleged to have. Would that be different from someone in a #trial or #criminal proceeding trying to prevent evidence from making it into the case?
“I don’t think we’re talking about anything other than evidence itself,” answered Jeffrey Greene, the attorney representing #JosephFischer.
But Justice #AmyConeyBarrett pressed. Are #Trump’s charges evidence-related, because they were related to obstructing or impeding #evidence — the state by state electoral vote count — from reaching VP Mike Pence’s desk?
“That’s closer, that’s definitely closer,” Greene conceded.
When Jeffrey T. Green said he doesn’t understand how the government can ask to expand the #obstruction statute to “cover something that it has never covered before,” Justice Sonia #Sotomayor said the #Jan6, 2021, attack on the U.S. Capitol was unprecedented.
“We’ve never had a situation before … with people attempting to stop a proceeding violently,” she said.
US Solicitor General Elizabeth #Prelogar said the statute squarely answered a question that loomed after the violent siege of the Capitol on #Jan6: What was the #crime beyond a riot?
“In plain English, the fundamental wrong committed by many of the rioters, including petitioners, was the deliberate attempt to prevent Congress from certifying the results of the election. That is, they obstructed Congress’s work in that ofcl proceeding,” disrupting the peaceful transfer of power. #law#SCOTUS
#Prelogar said the #obstruction statute “directly reads onto this conduct,” & that the court was left w/a simple question of statutory construction: “Did people obstruct an official proceeding?”
“The answer is equally straightforward,” she said, yes, they did.
She argued that Fischer asked the court “to impose an atextual limit,” conflating 2 adjacent passages in the #law to attempt to limit the statute to acts of #evidence impairment. The 2 prongs aren’t so limited, she said.
Justice #ClarenceThomas — lobbed the first challenge to Solicitor General Elizabeth Prelogar’s argument in favor (shocker) of the #obstruction of Congress #convictions.
“There have been many violent protests that have interfered with proceedings,” Thomas said. “Has the government applied this provision to other protests in the past? And has this been the government’s position throughout the life span of the statute?”
#Conservatives, including members of Congress who wrote briefs to the court in advance of this argument, say the #DOJ is showing partisanship by using the #law to punish supporters of #Trump but not against liberal protesters who have disrupted congressional hearings. Prelogar pushed back on that idea.
“We have enforced it in a variety of prosecutions that don’t focus on #evidence tampering,” #Prelogar said.“Now, I can’t give you an example of enforcing it in a situation where people have violently stormed a bldg in order to prevent an ofcl proceeding, a specified one, from occurring w/all of the elements like intent to obstruct, knowledge of the proceeding, having the ‘corruptly’ mens rea. But that’s just because I’m not aware of that circumstance ever happening prior to #Jan6.” #law#SCOTUS
Justice Neil M. #Gorsuch offered several hypotheticals when asking about the breadth of the statute.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?" he asked. "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 for 20 years in federal prison?”
#SCOTUS Justice Samuel A. #Alito Jr., in suggesting that the #obstruction charge is being read too broadly & covers normal political protest, proposed thinking specifically about a demonstration inside the building where the argument was taking place.
“For all the protests that have occurred in this court, the Justice Department has not charged any serious offenses,” he said.
It is not clear what protests #Alito was referring to Tues. In 2018, protesters opposed to the confirmation of #Kavanaugh pounded on the doors of #SCOTUS but did not make it inside. Protesters have also demonstrated outside justices’ homes. But protesting is specifically barred from taking place any closer to the #SupremeCourt than the sidewalk. It’s because of a #law dating to 1949, passed to avoid the perception that the justices are swayed by popular pressure rather than the law.
#ElenaKagan kicked off her questions for Fischer’s atty, Green, by referring to #ClarenceThomas’s earlier comments. #KetanjiBrownJackson asked Green to respond more fully to a #AmyConeyBarrett question. The callbacks from the court’s liberals to its conservative members appear to be skepticism that the #obstruction statute can apply only to #evidence tampering.
The #law doesn’t say it applies to someone who “otherwise spoils evidence,” Kagan noted. “It says otherwise obstructs a proceeding.”
Justices #Alito & #Kavanaugh questioned the #DOJ’s use of the “obstruction of an official proceeding” charge, & whether Congress meant to turn illegal & disruptive protesting, a #misdemeanor punishable by only a year or less in prison, into a #felony that carries a potential 20-yr sentence.
Wasn’t it odd to tuck such a broad, “catchall” obstruction prohibition (under the govt’s interpretation) that carries such a severe penalty in the middle of a statute, #Kavanaugh asked. And was it not extreme to accept its 20-yr max penalty, when a similar offense in the next provision carried only a 3-yr penalty, #Alito asked. #SCOTUS#Jan6#law
US Sol Gen #Prelogar said no, she didn’t think it was odd; it was in exactly the right place. Congress wrote the statute to broadly prohibit #obstruction offenses &the provision in question followed a passage that punishes the #crime of killing witnesses w/an even stiffer penalty—up to life in prison.
Prelogar also noted that fed sentencing guidelines for actual #Jan6 defendants who are first offenders &who plead guilty are far lower: 10-16 mos for #violent offenders, & 6-12 mos for #nonviolent.
For #Alito & #ClarenceThomas, past case is roadblock to siding with rioters A case from 2008 was brought up repeatedly during today’s oral argument, & it helps explain why the votes of the court’s conservatives are hard to predict.
In Begay v. United States, #SCOTUS ruled that the word “#otherwise” in the Armed Career #Criminal Act could not cover drunken driving convictions, because it was not similar enough to the other examples listed— “burglary, arson, or extortion” or “use of explosives.”
Chief Justice #JohnRoberts ruled in favor of that narrower reading.But Justices #Alito & #ClarenceThomas, the only other 2justices who are still on the court today, did not.In a dissent written by Alito,they said reading “#otherwise” to mean “limited to”equally purposeful, aggressive acts “does not follow the statutory language.” When asked what earlier case best supported his argument that #obstruction of Congress only covers evidence tampering,Green responded:“Begay is our best case for sure.”
“I’m not a fan of Begay,” #Alito acknowledged. Justice Elena #Kagan said she wasn’t swayed by Begay either, because in 2011 a majority of the court — including Alito & #ClarenceThomas — ruled the opposite way in a case involving someone fleeing police.
“A few years later, we said, ‘Where did that come from? We made it up!’ And we get rid of the whole thing,” she said. “So that’s not a great advertisement for” Joseph Fischer’s take.
@Nonilex
Respectfully, someone needs to find the largest syringe made, fill it with liquid COMMON SENSE, attach a dull needle then jab it hard into each SCOTUS Justice.
I think syringes made for large-animal inseminations are pretty big.
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