The Supreme Court is expected to grapple Tuesday in detail for the first time with the chaos and violence of the Jan. 6, 2021, riot at the Capitol when it hears arguments in a case that could upend hundreds of convictions — and potentially undermine some pending criminal charges against former President Donald Trump.
The case turns squarely on the actions pro-Trump rioters took that day — including ransacking the Capitol and bludgeoning police officers — and whether the felony obstruction charge the Justice Department has deployed against many of them is being used appropriately.
The high court’s ultimate ruling — expected by the end of June — could overturn hundreds of Jan. 6 felony convictions and hamper numerous pending prosecutions. A ruling against the Justice Department could even ripple into special counsel Jack Smith’s case against Trump, whom he charged with two charges of obstructing Congress’ business that day.
Until this week, the justices had not dealt publicly in any depth with the violence of Jan. 6 or who can be held legally responsible for it. The justices barely mentioned the riot when they heard arguments in February on efforts in some states to remove Trump from the 2024 ballot for stoking the Jan. 6 insurrection or when they resolved that legal fight in Trump’s favor.
They declined to consider Trump’s challenge to the Jan. 6 select congressional committee as it sought to obtain his White House records, and they rejected former Arizona state GOP Chair Kelli Ward’s bid to stop the select committee from obtaining her phone records. The justices also turned down Sen. Lindsey Graham’s bid to block a subpoena from Georgia investigators pursuing their own probe related to the 2020 election.
The current case, however, Fischer v. United States, was actually brought by a Jan. 6 defendant, Joseph Fischer, who says that 20-year old obstruction statute — passed in the wake of the Enron financial scandal — was not intended to cover the type of conduct that rioters engaged in on Jan. 6. Rather, Fischer argues, it was supposed to be limited to classic cases of evidence-tampering, like forging or shredding documents.
Federal prosecutors reject that claim, saying the text of the law itself was written broadly to cover any attempts to interfere with an “official proceeding” — such as the Jan. 6 joint session of Congress intended to certify the results of the 2020 election — so long as they can prove a defendant acted with a “corrupt intent.” About 350 rioters have been tagged with the charge, which carries a 20-year maximum sentence.
Most of the federal district court judges in Washington, who are handling the criminal cases related to the Capitol riot, have sided with prosecutors and concluded that the law does not require proof that a defendant intended to interfere with some sort of evidence.
However, in March 2022, one federal judge, Carl Nichols, agreed with defense lawyers’ narrower interpretation. In short order, Nichols — a Trump appointee — dismissed the same obstruction charge against at least three Jan. 6 defendants.
In April 2023, a federal appeals court panel consisting of two Republican appointees and one Democratic appointee overturned Nichols’ ruling, although the appeals judges splintered on how to interpret another key provision in the obstruction statute. And a second appeals court panel taking a broader look at the law upheld the Justice Department’s view and ruled that there are several ways for prosecutors to support obstruction charges.
The justices’ views and commentary about Jan. 6 during Tuesday’s arguments could provide clues to how they will weigh the events of that day when they consider Trump’s claim that he is immune from prosecution for his bid to subvert the 2020 election. Those oral arguments are set for April 25.
Several Jan. 6 defendants who were already imprisoned on obstruction charges have been tentatively released by judges concerned that the Supreme Court’s eventual ruling may result in shorter sentences than the ones the prisoners have already served.
It’s possible that the impact of the Supreme Court’s ruling in the Fischer case, however, will end up being limited for Trump, even if the court rules against the Justice Department.
Smith told the justices last week that he would still press on with his obstruction case against Trump for a simple reason: Trump, he says, violated the law even under the narrowest version that the justices might say applies. The prosecutor argues that the bid to assemble false slates of presidential electors — and have them deliver signed certificates claiming to be legitimate electors — is a classic example of falsifying evidence.
