Supreme Court Examines Obstruction Law in Capitol Riot Cases

Washington — Just days after the Supreme Court agreed to examine the breadth of an obstruction law used to prosecute hundreds of defendants for their alleged actions during the Jan. 6, 2021, Capitol riot, the court's very consideration of the law is already being invoked in both federal district court proceedings and by those already convicted in high-profile Jan. 6 cases.

In one such hearing Friday, U.S. District Judge Beryl Howell warned of a possible backlog of cases involving the federal statute, known as 1512, which accuses defendants of obstructing an official proceeding. 

The Supreme Court has not yet scheduled oral arguments in the case challenging how the Justice Department has used the statute, though they are expected to take place in the spring, with a decision coming by the end of June.

The Justice Department has brought charges against over 327 individuals for a crime that carries a maximum sentence of 20 years in prison. More than 50 defendants have pleaded guilty to this charge, according to a review of court documents and proceedings by CBS News. Special counsel Jack Smith has charged former President Donald Trump with two counts under the obstruction law - conspiracy to obstruct an official proceeding and obstruction of an official proceeding. Trump has pleaded not guilty to these counts, as well as two others related to his alleged actions following the 2020 presidential election.

During a recent court hearing, Judge Howell revealed that other judges in Washington's federal district court have received requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge. These defendants are now seeking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct. 

Judge Howell acknowledged that these requests are not unreasonable and suggested that federal prosecutors consider offering a plea deal that focuses on a different charge to avoid delays in the case. She expressed concerns that the court could face scheduling backlogs due to the Supreme Court's review. 

The U.S. attorney for Washington, D.C., who has charged over 1,000 Jan. 6 defendants, declined to comment due to the ongoing litigation. 

"A significant bargaining chip"

A former federal prosecutor believes that a Supreme Court ruling in favor of defendants could have significant implications for those charged with obstruction related to the events of January 6th. Gene Rossi, who now represents a member of the Oath Keepers, explains that defendants who have already pleaded guilty or been convicted under the obstruction statute could potentially request new trials or reduced sentences if the Supreme Court rules in their favor. Rossi notes that the obstruction charge has been a key component of many Jan. 6 trials in the district court in Washington, and its removal could be a game-changer for many defendants.

"The 1512 charge for the prosecutors was their gold standard, it was their North Star. It was the capstone of their prosecutions," Rossi told CBS News. "If the Supreme Court removes that capstone, that gold star, that North Star, that could be a tremendous game-changer for many defendants."

In addition to the potential impact on already adjudicated cases, Rossi believes that the Supreme Court's decision to hear the case will also benefit defendants whose cases are still in the earlier stages. He suggests that prosecutors may be more willing to negotiate plea agreements for lower charges in light of the potential risk posed by the Supreme Court ruling.

"The Supreme Court's acceptance of this case for argument is a significant bargaining chip because any smart, wise and seasoned prosecutor would say listen, I'm not going to insist on 1512 because there's a risk, and if the defendant wants to plead to lower charges, lower felonies or misdemeanors, I'd rather have a bird in the hand than risk not having anything," Rossi said.

The Justice Department, he said, is "trying to put a square peg into a round hole" by charging defendants under a statute that arose in the wake of the Enron scandal in the early 2000s. The accounting firm Arthur Andersen was charged with obstruction for destroying millions of documents and electronic records related to Enron as the Securities and Exchange Commission was opening an investigation into the energy giant.

Pursuing the obstruction charge against Jan. 6 defendants was "aggressive" and the Supreme Court deciding to accept the case "is a red flag and a loud gong," Rossi said. 

The Supreme Court case

Requests for the Supreme Court to weigh in on the 1512 statute arose from three criminal prosecutions of defendants charged for their participation in the assault on the Capitol. The three men — Edward Lang, Garrett Miller and Joseph Fischer — were each charged with corruptly obstructing, influencing or impeding an official proceeding. The provision is part of the Sarbanes-Oxley Act, which was passed in 2002 following the Enron scandal.

The defendants each raised problems with various aspects of how the Justice Department used the charge against alleged Jan. 6 rioters, including prosecutors' interpretation of "corruptly" and whether the statute is broad enough to cover the conduct tied to the Capitol breach. 

The Justice Department had urged the Supreme Court to turn away the trio of cases, arguing in part that it was too early for the justices to intervene, given that neither Lang, Miller nor Fischer had been convicted of violating the obstruction statute.

Supreme Court to Review Obstruction Statute in Capitol Riot Cases

The Supreme Court has agreed to review a case challenging the reach of the obstruction statute in relation to the Capitol riot cases. The case, brought by defendant Eric Fischer, questions whether the statute applies to conduct that occurred during the joint session of Congress on January 6, 2021. Fischer's appeal argues that the statute should only apply to actions that directly obstruct the official proceeding itself, rather than actions that obstruct the gathering or certification of Electoral College votes.

Solicitor General Elizabeth Prelogar, representing the U.S. before the high court, defended the Justice Department's use of the measure. In a filing, Prelogar stated that the statute is broad in scope and includes conduct directed at the official proceeding itself. She argued that the defendants obstructed the joint session of Congress by physically blocking it from occurring, thus preventing Congress from carrying out its work.

While all three related cases were decided by the U.S. Court of Appeals for the District of Columbia Circuit together, the Supreme Court has chosen to hear only Fischer's case. This decision will have implications for other defendants involved in the Capitol riot cases.

Defendants Seek Delay in Sentencing

As the Supreme Court reviews Fischer's case, some defendants have requested temporary remedies in their own cases. Thomas Caldwell, a former Oath Keepers affiliate, has asked the federal judge overseeing his case to delay his sentencing. Caldwell was acquitted of more serious charges but convicted of the obstruction statute. His attorney argues that the sentencing should be put on hold until the Supreme Court rules on the reach of the law.