Supreme Court makes it harder to charge January 6 protesters

WASHINGTON — The Supreme Court on Friday made it more difficult to charge Capitol riot defendants with obstruction, a charge that was also brought against former President Donald Trump.

The justices ruled 6-3 that the charge of obstructing an official proceeding, enacted in 2002 in response to the financial scandal that brought down Enron Corp., must include evidence that the defendants attempted to tamper with or destroy documents. Only a few of the people who violently attacked the Capitol on January 6, 2021 fall into this category.

The decision could be used as grounds for claims by Trump and his Republican allies that the Justice Department unfairly treated the Capitol riot defendants.

It is unclear how the court’s decision will affect the case against Trump in Washington, although special counsel Jack Smith said the charges facing the former president would not be affected.

The high court sent the case of former Pennsylvania police officer Joseph Fischer back to a lower court to determine whether Fischer can be charged with obstruction. Fischer was indicted for his role in disrupting Congress’ certification of Democrat Joe Biden’s 2020 presidential election victory over Trump.

Fischer is among about 350 people charged with obstruction. Some pleaded guilty or were convicted of lesser charges.

Chief Justice John Roberts wrote the court’s opinion, joined by conservative Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas, and liberal Justice Ketanji Brown Jackson.

A broad reading of the obstruction statute “would also criminalize a wide range of prosaic conduct, exposing activists and lobbyists to decades in prison,” Roberts wrote.

Justice Amy Coney Barrett dissented, along with Justices Elena Kagan and Sonia Sotomayor.

Approximately 170 Capitol insurrection defendants have been convicted of obstructing or conspiring to obstruct the Jan. 6 joint session of Congress, including the leaders of two far-right extremist groups, the Proud Boys and the Oath Keepers. Several defendants had their sentences postponed until after judges ruled on the matter.

Some protesters were even granted early release from prison while the appeal was pending due to concerns that they could end up serving time longer than they should if the Supreme Court ruled against the Justice Department. They include Kevin Seefried, a Delaware man who threatened a black police officer with a flagpole attached to a Confederate battle flag as he stormed the Capitol. Seefried was sentenced last year to three years in prison, but a judge recently ordered that he be released a year after serving his prison sentence, pending the Supreme Court’s decision.

The majority of lower court judges who weighed in allowed the charge to stand. Among them, Trump-appointed U.S. District Judge Dabney Friedrich wrote that “statutes often go beyond the primary evil that animates them.”

But U.S. District Judge Carl Nichols, another Trump appointee, dismissed the charge against Fischer and two other defendants, writing that prosecutors went too far. A divided federal appeals court panel in Washington reinstated the charge before the Supreme Court agreed to take up the case.

More than 1,400 people have been charged with federal crimes in connection with the Capitol riots. Approximately 1,000 of them pleaded guilty or were convicted by a jury or judge after a trial.

The U.S. attorney’s office in Washington, which handled the Jan. 6 proceedings, said no one who was convicted or charged with obstruction will be completely exonerated because of the ruling. Each defendant also has other felony or misdemeanor charges, or both, prosecutors said.

For about 50 people convicted, obstruction was the only felony charge, prosecutors said. Of these, around two dozen who are still serving their sentences are those most likely to be affected by the decision.