Conservative justices question overcriminalization now, with Jan. 6 case

The case over whether the Justice Department is using a conspiracy law too broadly could have implications for Donald Trump's federal charges in D.C.

A small handful of protesters — chanting “Free J6!” at times — stood in front of the U.S. Supreme Court building on April 16, 2023, following arguments related to one of those prosecutions.

On Tuesday, several conservative justices of the U.S. Supreme Court expressed a newfound concern about overcriminalization when the court heard arguments over the Justice Department’s efforts to prosecute people involved in the actions surrounding Jan. 6, 2021 — the culmination of the efforts to overturn the 2020 election.

More than 300 of those people, including Donald Trump, have been charged with violating a federal law criminalizing “obstruct[ing] … or imped[ing] any official proceeding, or attempt[ing] to do so.”

One of the people charged under that provision, Joseph Fischer, brought his challenge to this use of the law to the Supreme Court, which heard arguments in the case on Tuesday.

As Solicitor General Elizabeth Prelogar explained the government’s reason for bringing the charges, “[T]he fundamental wrong committed by many of the rioters, including Petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress’s work in that official proceeding. The government accordingly charged Petitioner with violating Section 1512(c)(2), an obstruction offense that directly reads onto his conduct.”

That provision is found alongside another in a section of the criminal code, and their placement together has been key to the challenges to prosecutions under this law.

Fischer’s lawyer, Jeffrey Green, argued that when these provisions are read in conjunction with one another, due to their placement together and the “otherwise” language at the start of (c)(2), it becomes clear that (c)(2) is limited to the focus of (c)(1) — specifically, evidence-related obstruction.

“Until the January 6th prosecutions, Section 1512(c)(2), the ‘otherwise’ provision, had never been used to prosecute anything other than evidence tampering, and that was for good reason,” Green said. “This Court has said that ‘otherwise,’ when used in a criminal statute, means to do similar conduct in a different way.”

At the end of the more than 90 minutes of arguments, it appeared likely that the court would at least pull back some of the furthest reaches of the government’s interpretation of the statute at issue — although it was not clear that there were five votes to restrict the statute so far as to prevent the use of the provision in the Jan. 6 prosecutions altogether.

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In response to a first question from Chief Justice John Roberts — who asked no questions of Green but asked several of the government’s lawyer — Prelogar, in effect, responded to Green, saying, “[T]here is nothing in the text of (c)(2) itself to disclose what the relevant similarity from (c)(1) ought to be. Instead, we think the relevant similarity is obstruction of an official proceeding because that's the language Congress chose.”

It is, she asserted repeatedly, a straightforward case about what the statute unambiguously says.

Justice Neil Gorsuch — who has in the past shown a willingness, in certain cases, to challenge prosecutorial choices — picked up the questioning by asking about the scope of the Justice Department’s argument if that is what the statute allows.

Aside from the vague-yet-pointed apparent reference to Rep. Jamaal Bowman setting off a fire alarm in the Cannon House Office Building back in September 2023, Gorsuch’s questions were not all that surprising coming from him.

Prelogar, for her part, pushed back on the line of questioning by arguing, primarily, that the government has to show several different elements in order to bring these charges and secure convictions under the law.

“[T]o the extent that your hypotheticals are pressing on the idea of a peaceful protest, even one that's quite disruptive, it's not clear to me that the government would be able to show that each of those protestors had corrupt intent,” she said.

That wasn’t enough for Justice Sam Alito, a former prosecutor who regularly sides with the prosecution as a justice, who followed up with newfound criminal defense concerns. He was extremely focused on statutory ambiguity on Tuesday, as well as the application of this case to other forms of protest.

Alito asked a series of questions following up on Gorsuch’s concerns — including whether hypothetical protesters who disrupt Supreme Court proceedings by standing up and speaking out for or against people involved in storming the Capitol on Jan. 6, “delay[ing] the proceeding for five minutes,” could be charged under 1512(c)(2).

Again, Prelogar responded by questioning whether that would meet the terms of the statute or whether the government could prove so if it tried.

Later, in a later discussion with Justice Elena Kagan — who appeared to be the most supportive of the government’s argument — Prelogar highlighted how charging decisions were made in the Jan. 6 cases.

She explained that there would need to be evidence that any defendant “knew about the proceedings that were happening in the joint session in Congress that day,” “specifically intended to prevent Congress from certifying the vote,” and then could be shown to have “knowledge of wrongfulness or unlawful conduct” — something that could be proven by pointing to “particular preparations” that an individual made.

For his part, Justice Clarence Thomas was very concerned about this statute only being used this way now, despite the fact that there have been “many violent protests that have interfered with proceedings,” as he claimed.

Thomas, who had been absent from the court Monday with no explanation, was present Tuesday despite the fact that his wife, Virginia Thomas, called the election a “heist” in text discussions with Trump’s then-chief of staff, Mark Meadows.

“Has the government applied this provision to other protests in the past, and has this been the government's position throughout the lifespan of this statute?” Thomas asked Prelogar. When she answered yes, Thomas followed up by asking if DOJ had “enforced it in that manner.”

It was at this point that Prelogar laid out the government’s actual position, which was what the conservatives were trying to dance around:

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, a specified one, from occurring with all of the elements like intent to obstruct, knowledge of the proceeding, having the corruptly mens rea, but that’s just because I'm not aware of that circumstance ever happening prior to January 6th.

Alito had a similar moment, when he kept asking about “five people” standing up and peacefully disrupting a Supreme Court proceeding.

After some back and forth, Prelogar pushed back forcefully:

I think it’s 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.

At that, even Alito flinched, telling her, “Yes indeed, absolutely. What happened on January 6th was very, very serious, and I'm not equating this with that.”

Despite that, it’s not clear to me that the outcome here is certain. Both Thomas and Alito also appeared to agree that the Justice Department’s interpretation isn’t unreasonable. Even Green conceded that he wasn’t arguing that the government’s interpretation was “implausible.”

He was, he said, instead arguing that it is “unsound” because of what conduct Section 1512 addresses “generally” and how statutory interpretation should lead the court to his view here.

The bottom line is that there are legitimate — even important — concerns to be raised about when and how broadly criminal statutes are to be used and the implications of those uses in other cases.

From the conservative justices, though, who rarely (Gorsuch aside) raise any question about prosecutorial overreach, it was a little rich to see them raise repeated concerns about these prosecutions and about a statutory maximum of 20 years being at issue here — to the point that Prelogar eventually had to state how that statutory maximum had basically nothing to do with the actual sentencing involved in these cases (something that the justices all know very well).

If a middle ground is to be found in the case, it could have been developing from both ends of the bench, Justices Amy Coney Barrett and Ketanji Brown Jackson, on Tuesday. The pair asked a handful of important questions about a possible construction of 1512(c)(2) related to times when someone, as Jackson put it, is ”doing something to limit [the] availability” of necessary documents — for example, “preventing Congress from counting the electoral votes.”

Depending on how such a construction is worded, it might — if they can cobble together a majority — address some of the legitimate concerns raised by Gorsuch while also allowing the continued application of the provision in Jan. 6 prosecutions for the reasons cited by Prelogar.

Even that, though, could upend the prosecutions as people seek review of convictions and prosecutors — including Special Counsel Jack Smith — might need to show more and prove more than they believed they had to do under the statute.

Specific to Trump, moreover, Tuesday’s arguments and any decision could lead to yet another chapter in his volume of efforts to delay his trial, given that two of the four charges he faces in D.C. come out of this provision.