Supreme Court skeptical of feds’ use of obstruction statute in Jan. 6 prosecutions

After nearly two hours of oral arguments on Tuesday, it remained unclear whether the justices had a consensus on whether prosecutors have overstepped in charging Jan. 6 defendants with obstructing Congress' proceedings.

“Let’s say that today five people get up one after the other and they shout either, ‘Keep the January 6 insurrectionists in jail!’ or ‘Free the January 6 patriots!’ And as a result of this, our police officers have to remove them forcibly from the courtroom. And let’s say we have to delay the proceeding for five minutes,” Justice Samuel Alito hypothesized.

Justice Clarence Thomas described it as a “violent protest” and contended that there have been “many” such demonstrations “that have interfered with proceedings.” He wondered whether the Justice Department had ever deployed the obstruction statute to deal with them. “I’m not sure that that’s true,” said attorney Jeffrey Green, who argued for Jan. 6 defendant Joseph Fischer, who is contesting his indictment. Green pointed to incidents in Portland, Oregon, in 2020, when protesters set fires and besieged the federal courthouse for weeks.

Most judges handling Jan. 6 cases have agreed, reading the provision broadly as covering any type of effort to obstruct or impede an official proceeding. But one, U.S. District Judge Carl Nichols, said the obstruction has to directly affect evidence, such as through document shredding, forgery or other document-focused actions. In the context of Jan.

“Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document,” he said.

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