Conservatives on the court expressed varying degrees of skepticism about the charge of obstructing an official proceeding.
The U.S. Supreme Court appeared divided on Tuesday, with conservatives expressing various degrees of skepticism about the statute used to prosecute more than 350 people involved with the Jan. 6 riot at the Capitol.
At least partially on the line at Tuesday’s argument was the Justice Department’s effort to punish some of those it deems the more serious participants in the Capitol riot. Roughly one-quarter of those prosecuted so far for their roles in the capitol invasion have been charged with violating a federal statute enacted after the Enron scandal in 2002, a scandal that involved massive document shredding and fraud.
Joseph Fischer, a former police officer charged in the riot, is challenging the use of the second provision, asserting that it was never meant, as the government claims, to be a catchall obstruction law.
His lawyer faced a grilling from the court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Kagan suggested that, in her view, Congress wrote the second part of the law to „plug gaps“ in the then-existing obstruction statutes. In short, as she put it, „It was meant to function as a backstop.“
Jackson said that trying to prevent the electoral count seemed to her like an obstruction of an official proceeding. And Sotomayor said that if this statute doesn’t seem to be an exact match for the Jan. 6 attack, that is because there had never been an event like this one before.
But Fischer’s lawyer, Jeffrey Green, seemed to have a willing audience in the court’s six conservative members. They aimed their most skeptical questions at Solicitor General Elizabeth Prelogar and her assertion that the statute was meant to be a broad obstruction provision.
Justice Clarence Thomas observed that there have been other violent protests that interfered with official proceedings.
