ARI SHAPIRO, HOST:
Just across the street from the Library of Congress, the U.S. Supreme Court appeared divided today in an important case about the January 6 riots. The conservative justices expressed various degrees of skepticism about the statute being used to prosecute more than 350 people involved in the attack on the Capitol. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: At least partially on the line today was the Justice Department's effort to punish some of those individuals it deems to be the more serious participants in the Capitol riot. About one-quarter of those prosecuted so far for their roles have been charged with violating a federal statute enacted after the Enron scandal in 2002. One part of the law makes it a crime to corruptly alter or destroy documents and records related to an official proceeding, and the second part makes it a crime to otherwise obstruct or impede an official proceeding, including a congressional proceeding.
Joseph Fischer, a former police officer charged in the riot, is challenging the use of that second provision, asserting that it was never meant, as the government claims, to be a catchall obstruction law. He seemed to have a willing audience in the court's six conservative members. They aimed their most skeptical questions at Solicitor General Elizabeth Prelogar and her assertion that the statute was meant to be a broad obstruction provision. Justice Thomas observed that there have been other violent protests that interfered with official proceedings.
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CLARENCE THOMAS: Has the government applied this provision to other protests in the past?
ELIZABETH PRELOGAR: We have enforced it in a variety of prosecutions that don't focus on evidence tampering.
TOTENBERG: Justice Gorsuch posed this question.
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NEIL GORSUCH: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the State of the Union address?
TOTENBERG: Prelogar said those actions would not meet the criteria of corruptly and intentionally violating the law. Justice Alito followed up.
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SAMUEL ALITO: Let's say that today, while you're arguing, five people get up and they shout either keep the January 6 insurrectionists in jail or free the January 6 patriots. Our police officers have to remove them forcibly.
TOTENBERG: Would that be a violation, he asked. No, replied Prelogar, because the government doesn't think this statute picks up such minimal interferences. Justice Kagan interjected at this point, asking the solicitor general what sort of evidence the government typically presents in these January 6 prosecutions. Prelogar replied that the government has to prove that the defendants specifically intended to disrupt the joint meeting of Congress, where the electoral votes were to be counted.
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PRELOGAR: We have focused on things like preparation for violence, bringing tactical gear or paramilitary equipment to the Capitol.
TOTENBERG: She noted that prosecutors have brought charges against 1,350 defendants in connection with January 6 so far, but because of the need to show intent to prevent the counting of the electoral ballots, only 352 of those defendants have been charged with obstruction. Still, Chief Justice Roberts remained doubtful, asking whether the Justice Department has similarly applied the statute in other cases. Prelogar replied that there's a key difference between statutes that do not require intent to obstruct and this one, which does have that proof of intent requirement. Justice Barrett chimed in, saying that she too still had concerns about the broad use of the law, and Justice Kavanaugh noted that there are six other counts in the indictment of the defendant in this case, including civil disorder and assault.
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BRETT KAVANAUGH: Why aren't those six counts good enough, just from the Justice Department's perspective, given that they don't have any of the hurdles?
PRELOGAR: Because those counts don't fully reflect the culpability of petitioner's conduct on January 6. He had said in advance of January 6 that he was prepared to storm the Capitol, prepared to use violence. He wanted to intimidate Congress. He said, they can't vote if they can't breathe. And then he went to the Capitol with that intent in mind and took action, including assaulting a law enforcement officer.
TOTENBERG: If the court rules in favor of defendant Fischer, many of the 352 people charged under the obstruction statute will have to be resentenced or released from prison.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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