Conservative justice Amy Coney Barrett wrote the dissent for the case that limited prosecution of January 6 rioters for obstruction.
Matt Keeley at NCRM:
Conservative Justice Amy Coney Barrett slammed the Supreme Court for making “textual backflips” in justifying its ruling to limit the prosecution of January 6 rioters for obstruction.
Friday morning, the Court issued its ruling in Fischer v. United States, which rules that the law against the obstruction of official proceedings applies to only those rioters who “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so,” according to Chief Justice John Roberts’ ruling.
The ruling was 6-3, but not along ideological lines. The conservative justices other than Barrett were joined by liberal Justice Ketanji Brown Jackson, while Barrett wrote the dissent, and was joined by the other two liberal justices, Sonia Sotomayor and Elena Kagan.
[...]
Jackson concurred, but in her opinion she wrote that she agreed with the ruling based on the law, but was unconvinced that it necessarily applied to many January 6 defendants. She said that would be up to lower courts to decide.
“Joseph Fischer was charged with… corruptly obstructing ‘a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote,” she wrote. “That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves.”
[...]
Similarly, special council Jack Smith, said that Friday’s ruling will not affect the election interference case against former President Donald Trump, according to the Associated Press. The ruling will affect approximately half of the 50 defendants still serving out their sentences for their roles in the January 6 riots, the AP reported.
In the 6-3 Fischer v. United States ruling on Friday that was largely along the familiar ideological lines (except with Amy Coney Barrett as part of the three dissenters instead of Ketanji Brown Jackson), SCOTUS ruled to limit the scope of the obstruction of official proceedings charges for the January 6th Insurrectionists. The Fischer ruling would not effect Donald Trump.
Coney Barrett’s dissent in Fischer rightly argued that efforts to stop the Electoral College vote count certification qualified as an attempt to obstruct an official proceeding.
Most of the justices seem to want to make it harder to prosecute January 6 rioters.
Ian Millhiser at Vox:
The Supreme Court spent about an hour and a half on Tuesday morning arguing over whether to make it much harder for the Justice Department to prosecute hundreds of people who joined the January 6, 2021, attack on the US Capitol.
It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome.
The case, known as Fischer v. United States, involved a federal law which provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a very serious federal felony and can be imprisoned for up to 20 years — although, as Solicitor General Elizabeth Prelogar pointed out during Tuesday’s argument, actual sentences against January 6 defendants convicted under this statute have been much shorter, normally ranging from a little less than one year to slightly over two years.
According to the Justice Department, more than 1,265 people have been arrested for playing some role in the attack on the Capitol. Approximately 330 of them have been charged under the obstruction statute at issue in Fischer. One of them is Donald Trump.
As a federal appeals court held in its decision in this case, the obstruction statute is pretty darn clear that it applies to an effort to obstruct any congressional proceeding intended to certify the result of a presidential election — like the proceeding that the January 6 rioters attacked. And very few of the justices seemed to agree with Jeffrey Green, the lawyer representing a January 6 defendant, who proposed one way to read the statute more narrowly.
Nevertheless, many of the justices expressed concerns that the law sweeps too broadly and that it must be narrowed to prevent people who engage in relatively benign activity from being prosecuted.
Justice Samuel Alito, for example, expressed uncharacteristic sympathy for hecklers who interrupt a Supreme Court hearing — suggesting that prosecuting them under a statute that can carry a 20-year sentence goes too far. Justice Neil Gorsuch expressed similar concerns about prosecuting someone who peacefully conducts a sit-in to delay a court hearing, or someone who pulls a fire alarm to disrupt an official proceeding.
Indeed, Tuesday’s argument had a bit of a split personality. During Green’s time at the podium, most of the justices took turns criticizing his attempts to read the ban on obstructing an official proceeding narrowly. Even Alito, who is normally the Court’s most reliable vote for any outcome preferred by the Republican Party, got in on the game — telling Green that he “may be biting off more than [he] can chew” by arguing that the statute must be read to benefit his client.
By the time Green sat down, it appeared that he could lose in a 9–0 decision.
But any optimism that the Justice Department might have had early on in the argument must have been shattered almost as soon as Prelogar began her argument. Most of the justices peppered her with skeptical questions, although the justices who seemed to want to limit the obstruction statute struggled to agree on a single legal theory that would allow them to do so.
So the bottom line is that this case is probably going to end well for many January 6 defendants, but it is far from clear how the Court will justify such an outcome.
[...]
The Court’s sympathy for political protesters appears to be quite selective
Much of the skepticism Prelogar faced seemed to be rooted in some of the justices’ fears that ordinary political protests may be squelched by an overbroad reading of the obstruction statute. So it is worth noting another decision that the Court handed down just one day before the argument in Fischer.
In Mckesson v. Doe, the right-wing United States Court of Appeals for the Fifth Circuit effectively eliminated the right to organize a political protest — holding that protest leaders could face ruinous financial liability if a single protest attendee commits an illegal act. This decision is completely at odds with a long line of the Supreme Court’s First Amendment precedents.
And yet, on Monday, the Court announced that it would not hear the Mckesson case, leaving the Fifth Circuit’s decision in place.
It is still possible that the Supreme Court will correct the Fifth Circuit’s error in Mckesson at some later date. But it’s notable that the Court felt no urgency to do so in that case, while it spent the Fischer argument thinking about how to shut down some hypothetical future case where the government may not show adequate respect for First Amendment rights.
The Mckesson case, moreover, involved a Black Lives Matter protest, while the Fischer case involved a pro-Trump insurrection.
If nothing else, this is a terrible look for the Supreme Court. And it suggests that many of the justices’ concerns about free speech depend on whether they agree with the political views of the speaker.
Based on the oral arguments heard in the Fischer v. United States case at SCOTUS, the right-wing majority on the court is likely to side with Capitol Insurrectionists charged with obstructing an official proceeding.
Combined with this and the refusal to take up McKesson v. Doe, SCOTUS is in the tank for sympathies for right-wing protesters.
See Also:
HuffPost: Supreme Court Conservatives Appear Skeptical Of The Law Used To Charge Hundreds Of Jan. 6 Insurrectionists
The Court’s decision could potentially undermine over 300 January 6 prosecutions, including Trump’s.
Ian Millhiser at Vox:
According to the Justice Department, Joseph Fischer texted his boss before the January 6 insurrection to tell him that he might need to post bail. The accused insurrectionist also allegedly warned that the protest at the US Capitol “might get violent,” and he allegedly wrote that “they should storm the capital and drag all the democrates [sic] into the street and have a mob trial.”
When the day of the insurrection came, Fischer allegedly yelled “Charge!” before running and crashing into a line of police inside the Capitol. The Justice Department says that video footage “shows at least one police officer on the ground after [Fischer’s] assault.” Fischer was only in the Capitol for four minutes, according to the DOJ, before he was “forcibly removed.”
Fischer was arrested after the FBI identified him based on a video he posted on Facebook that showed him inside the Capitol on January 6.
More than three years later, however, Fischer has yet to be tried. The criminal proceeding against him has been tied up in appeals after a Trump-appointed trial judge ruled that one of the criminal laws Fischer is charged with violating must be read very narrowly. That ruling is now being reviewed by the Supreme Court, in a case called Fischer v. United States.
The Supreme Court will hear this case next month.
The statute at issue in Fischer provides that anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a serious federal crime and can be imprisoned for up to 20 years. (In practice, someone convicted under this statute will likely receive far less than a 20-year sentence. Federal judges normally rely on guidelines written by the US Sentencing Commission when handing down criminal penalties, rather than mechanically issuing the maximum sentence.)
According to the Justice Department, “approximately 330 defendants have been charged with violating” this statute after the January 6 insurrection. One of them is Donald Trump.
Many of these defendants, including Fischer and Trump, have also been charged under other criminal statutes. And the approximately 330 defendants charged with obstructing an official proceeding are only about a quarter of all January 6 defendants. So, if the Supreme Court embraces Fischer’s narrow reading of the obstruction law, that would undermine many January 6 prosecutions, but it is unlikely to sabotage the entire effort to bring the insurrectionists to justice.
The overwhelming majority of judges have read the obstruction statute broadly enough to encompass the January 6 defendants. As the United States Court of Appeals for the District of Columbia Circuit noted in its opinion saying that Fischer could be charged under this statute, several federal appellate courts “have applied the statute to reach a wide range of obstructive acts.”
SCOTUS is set to weigh in directly on the Trump-incited Capitol Insurrection in the Fischer v. United States case in April, and that could impact around 300+ cases (including Donald Trump's).
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