Supreme Court arguments in Jan. 6 case that may impact Trump, rioters

The Supreme Court is taking up a challenge today to a federal law prosecutors used to charge more than 350 people who were part of the pro-Donald Trump mob that attacked the U.S. Capitol on Jan. 6, 2021.

More than 100 rioters have been convicted and sentenced under that statute for obstructing or impeding an official proceeding — the joint session of Congress that convened on Jan. 6 to formally confirm Joe Biden’s 2020 election victory

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The case could directly impact Donald Trump’s federal trial in D.C. for allegedly trying to remain in power after his 2020 defeat, because two of the four charges he faces are based on the same obstruction statute.

Oral argument began shortly after 10 a.m. Eastern time. The court’s ruling, likely to land in late June, has the potential to undo the convictions and sentences of those who have gone to trial or pleaded guilty, and upend the charges still pending for many more.

Justice Amy Coney Barrett just asked a question that suggests that the two election obstruction charges against former president Donald Trump could survive, even if the court agrees with challengers that the statute is not appropriate for the Jan. 6 rioters.

Barrett asked whether the law prohibiting evidence impairment would prohibit altering electoral vote certificates, as Trump is alleged to have done. Would that be different, she said, from someone in a trial or criminal proceeding trying to prevent evidence from making it into the case?

“I don’t think we’re talking about anything other than evidence itself,” answered Jeffrey Greene, the attorney representing Jan. 6 rioter Joseph Fischer.

But Barrett pressed. Are Trump’s charges evidence-related, because they were related to obstructing or impeding evidence — the state by state electoral vote count — from reaching Vice President Mike Pence’s desk?

“That’s closer, that’s definitely closer,” Greene conceded.

From the beginning of Tuesday’s argument, the justices started referring without explanation to “C1” and “C2.” Confused? Those are the different sections of the law under dispute — Section 1512 of Title 18 of U.S. Code. The question is whether subsection “C2” can be used against the Capitol rioters, or whether it only applies to evidence destruction, as “C1” does.

Here is the text of the challenged 18 U.S.C. 1512(c)(2) subsection:

U.S. Code § 1512 — Tampering with a witness, victim, or an informant

“(c) Whoever corruptly —

“(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

“(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

“shall be fined under this title or imprisoned not more than 20 years, or both.”

How republicans spell Treason

Justice Clarence Thomas was the first to ask a question, asking Joseph Fischer’s attorney a very specific question about his reading of the obstruction statute. “How do we determine what these provisions have in common. Do we look after the otherwise or before?” he asked.

He is back on the bench after an unexplained one-day absence.

Critics have said Thomas should not have any role in Jan. 6-related cases because his wife, Ginni Thomas, was involved in efforts to undo the results of the 2020 election and attended then-President Donald Trump’s rally the morning of the Capitol attack.

Jeffrey Greene, the attorney challenging the use of the obstruction statute, gave a short opening statement warning that the government’s novel interpretation of the law would turn a “catch-all provision into a dragnet” open to prosecutorial abuse.

“The Jan. 6 prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct,” Greene said, alluding to felony rioting and misdemeanor trespassing and disorderly conduct counts that the rioters also faced. “A Sarbanes-Oxley based, Enron-driven evidence tampering-driven statute is not one of them.”

Outside the court Tuesday morning, there were few protesters. Micki Witthoeft, the mother of Ashli Babbitt — a Trump supporter who was fatally shot by a police officer in the Capitol during the riot — said she was here to protest “the persecution of American citizens.”

“I don’t have anything else to say the The Washington Post, but I appreciate your time,” she said.

Another woman, Brianne Chapman of the District, held a sign that said some of the Jan. 6 defendants were extremists or criminals. She said she had attended many court proceedings and feared that the defendants were being depicted as political prisoners.

“They tried to overthrow democracy,” Chapman said. “If they don’t get their way, they will do it again.”

In front of the court, Chapman got into a brief shouting match with a Jan. 6 supporter — Rebecca Zhang of Virginia, who was live-streaming the event on social media.