This week, the Supreme Court heard arguments regarding the case of Joseph Fischer, a January 6 defendant.
Legal experts and the Trump defense team have been following this case because the ruling could impact charges against Donald Trump.
Talking Points…
- Fischer’s case
- Supreme Court unimpressed
- Analysis
At the heart of this case is whether those deemed to have rioted on January 6, 2021, can be charged with obstruction of an official proceeding. Fischer is one of more than 300 people accused of obstruction, so the court's ruling will significantly impact all of these cases, including the Trump case.
The Department of Justice (DOJ) is arguing that Fischer made a "deliberate attempt" to stop a joint session of Congress to prevent the certification of the 2020 election. The DOJ is citing a statute that criminalizes any activity that "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do." This carries a sentence of up to 20 years in prison. Fischer's defense team has argued that the statute has only been applied in the past to evidence-tampering cases, therefore, it should not be permitted to apply to this case.
According to legal experts, the DOJ struggled to make its argument in the case, and questions asked by some of the justices on the bench led them to believe that there is a very good chance that Fischer could win this case. Fox News contributor Jonathan Turley gave props to Solicitor General Elizabeth Prelogar, calling one of "the best appellate litigators," but he also stated that she was "clearly on the ropes" when the justices started to challenge her arguments.
Justice Gorsuch threw some darts at her argument, bringing up Rep. Jaamal Bowman (R-N.Y.) for having pulled a fire alarm during a session of Congress, a swell as heckling that has taken place during the State of the Union Address. Gorsuch said both incidents could be considered "obstruction," with Prelogar challenging if those particular instances included all the elements needed to be considered "obstruction." Turley gave his two cents on the exchange, stating:
"Gorsuch laid bare the problems for the government's argument. This is where the government's arguments seem to fall apart in that.
"When pressed … Prelogar started to introduce contextual standards and said that these would just not be strong cases. And that was not the way to go, in my opinion."
Carrie Severino, former clerk for Justice Clarence Thomas and president of the Judicial Crisis Network, also commented that the government's argument would open a rather large door to charging people with obstruction in cases that would typically be protected under the First Amendment. She stated that the government:
"Had a hard time explaining how this wasn't going to be such a broad, open door that it could allow a lot of behavior that we clearly understand to be protected First Amendment speech – peaceful protests, etc. – to get swept in the way that they're charging it.
"There’s not a First Amendment right to trespass or to block things. But I think you do have to worry about … this is an incredibly draconian type of response that could be applied to things that we absolutely wouldn't believe should be subjected to a 20-year prison sentence."
The day did not get much better for the DOJ, especially when Chief Justice John Roberts brought up an opinion issued by the DOJ's Office of Legal Counsel on this exact subject. Roberts noted that in that opinion, the DOJ stated that the obstruction statute needed to be viewed very narrowly and complexly, the opposite of what the DOJ was arguing to go after J6 defendants on obstruction.
Prelogar responded that the opinion had never been "formally" adopted in the DOJ, which Turley stated was not a "good look for the government," but it sure does show how the government changes the rules when it wants to benefit one party or another that has the power at the moment.
After reading through the comments and questions on this, it seems to me that the DOJ was doing what Democrats have done for ages, that being that since they say it is true, it needs to be accepted, but as Turley noted in his breakdown of the case, that shrugging off of the contradiction will not work on these particular justices. I am inclined to believe that the court will side with Fischer in this case, creating a nightmare scenario for the DOJ and impacting Trump's January 6 case that has yet to be scheduled.
