The Supreme Court indicated Wednesday it will take up a challenge to an obstruction law used against scores of Jan. 6 rioters — and former President Trump — this term.
Joseph Fischer, a former police officer accused of being a Jan. 6 rioter, petitioned the high court to eliminate one of the several counts he faces: obstruction of an official proceeding.
The charge criminalizes “corruptly” obstructing, impeding or interfering with an official government proceeding and carries a maximum penalty of 20 years in prison. Fischer’s case is joined with two other rioters’ cases: Edward Lang and Garrett Miller.
Hundreds of rioters who stormed the Capitol on Jan. 6, 2021, have faced the same charge — the “official proceeding” being Congress’ official count of Electoral College votes, the final step of the presidential election process that certified President Biden’s win over Trump in the 2020 election.
Trump himself faces the same charge in connection with his efforts to overturn the 2020 election, meaning any Supreme Court decision on the matter could affect his federal criminal case, which is expected to head to trial in Washington, D.C., early next year.
Fischer’s petition to the high court argues that hundreds of cases awaiting trial would benefit from the justices’ clarification of the statute, providing “critical guidance to district courts, prosecutors and defense counsel.” Fritz Ulrich, Fischer’s lawyer, told The Hill they are “very happy” the court decided to clarify the scope of the statute.
The charge stems from a law enacted in 2002 in the wake of the Enron scandal. The energy company went bankrupt and several top executives were imprisoned for fraud and other offenses.
Then a senator, Biden referred to the new subsection at the time as “making it a crime for document shredding” — a sentiment noted by U.S. District Judge Carl Nichols in his decision to throw out Miller’s obstruction charge upon finding it did not cover his conduct. Nichols also dismissed the charge in Fischer’s and Lang’s cases.
The Justice Department, now under Biden, rejected that representation in its appeal of Nichols’s decision to toss the three rioters’ obstruction charges, arguing that actions such as burning a building to conceal the bodies of murder victims would also be encompassed by the statute.
“Congress prohibited conduct that intentionally and wrongfully obstructs official proceedings,” Justice Department appellate counsel James Pearce wrote. “The ordinary meaning of ‘obstruct, influence, or impede’ encompasses a range of conduct designed to frustrate an official proceeding.”
In a 2-1 ruling earlier this year, the federal appeals court sided with the Justice Department by finding that Nichols wrongly dismissed the obstruction charge in the three rioters’ cases.
Judge Florence Pan noted in her ruling that Nichols was the only district court judge overseeing Jan. 6 cases to rule in that manner. More than a dozen other Washington district court judges agreed with the Justice Department’s portrayal of the law.
“Although the opinions of those district judges are not binding on us, the near unanimity of the rulings is striking, as well as the thorough and persuasive reasoning in the decision,” Pan wrote.
Judge Gregory Katsas, who sided with Nichols, suggested the Justice Department’s interpretation of the crime could “supercharge” minor advocacy, lobbying and protest offenses into 20-year felonies.
Several members of the extremist Proud Boys and Oath Keepers groups faced the charge and were convicted, including the leaders of each group, Enrique Tarrio and Stewart Rhodes. Dozens of other defendants with less serious cases have pleaded guilty to the charge or been convicted at trial.
If the Supreme Court sides with the rioters, it would undermine those charges in other Jan. 6 cases — including the former president’s.
Updated at 10:22 a.m. ET