Supreme Court Sidesteps Riot Violence in Jan. 6 Case Argument

The Supreme Court talked little about the events of the Jan. 6 Capitol attack during arguments in the first criminal cases related to the riot to come before the justices.

Instead, they focused Tuesday on technical questions related to the reach of a law used by prosecutors to charge some Jan. 6 defendants and whether its application would chill peaceful protests.

The law, passed after the 2007-2008 financial crisis to outlaw evidence destruction, prohibits “corruptly” obstructing an official proceeding. Prosecutors have charged about one in four Jan. 6 defendants with the law for obstructing congressional certification of the 2020 presidential election.

“What happened on January 6th was very, very serious,” Justice Samuel Alito said. “But we need to find out what are the outer reaches of this statute.”

Focusing on the reach of the law, and not the actions on Jan. 6 during argument in Fischer v. United States wasn’t surprising, said George Washington University law professor Paul Schiff Berman.

“A judicial decision often has consequences far beyond the particular facts of the case at issue, and judges need to consider those potential consequences,” Berman said in an email.

Violent Protests

US Solicitor General Elizabeth Prelogar attempted to center arguments on the facts of the Capitol attack. She noted in her opening remarks that, “a violent mob stormed the United States Capitol and disrupted the peaceful transition of power.”

But the justices quickly focused on the reach of the statute under the government’s interpretation.

“What does that mean for the breadth of this statute?” Justice Neil Gorsuch asked Prelogar. “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?”

What about “pulling a fire alarm before a vote qualify for 20 years in federal prison?” Gorsuch asked in a seeming reference to Rep. Jamaal Bowman’s (D-N.Y.) guilty plea to a misdemeanor for pulling a firm alarm ahead of a House vote.

Similarly, Alito asked why protests in the Supreme Court itself haven’t been charged under the law.

“So we’ve had a number of protests in the courtroom,” Alito said. But “for all the protests that have occurred in this court, the Justice Department has not charged any serious offenses, and I don’t think any one of those protesters has been sentenced to even one day in prison.”

Five protesters were sentenced to jail time over a 2015 demonstration in the courtroom over campaign finance rulings.

Prelogar responded that the Justice Department would have a harder time prosecuting those crimes under the law. But she said those situations are “in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the Justices and other participants to flee for their safety and done so with clear evidence of intent to obstruct.”

Justice Clarence Thomas, whose wife Ginni attended then-President Donald Trump’s “Stop the Steal” speech at a rally just before his supporters stormed the Capitol, said “there have been many violent protests that have interfered with proceedings.”

“Has the government applied this provision to other protests in the past?” Thomas asked.

“I can’t give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding,” Prelogar responded. “But that’s just because I’m not aware of that circumstance ever happening prior to January 6th.”

Avoiding Issue

The justices similarly avoided talking about the Capitol attack at argument in February while considering whether Colorado could keep Trump off of the state’s 2024 primary ballot based on his actions on Jan. 6, said Donald Sherman of Citizens for Responsibility and Ethics in Washington.

Sherman’s group was behind that litigation, in which the justices ultimately sided with Trump and ruled that states couldn’t enforce the Constitution’s “insurrection clause” to keep federal candidates off the ballot.

During arguments in that case, Trump v. Anderson, the justices weren’t concerned about the gravity of Jan. 6, Sherman said. Instead they were much more troubled about the potential chaos that could result if states were allowed to exclude presidential candidates from their ballots.

The court in the Colorado ballot case really “bent itself into a pretzel to not deal with Jan. 6,” Sherman said.