The Daily Signal - What’s Riding on a Jan. 6 Capitol Riot Case Before Supreme Court? Legal Expert Explains

Episode Date: April 18, 2024

The Supreme Court will determine the fate of a major Jan. 6 Capitol riot-related case. The ruling could affect hundreds of people who were in the Capitol that day in 2021, and at the center of the case is the applicability of a federal statute.  The Justice Department has been using a statute enacted in the early 2000s to prosecute those in the Capitol on Jan. 6, 2021. The statute makes it a crime to “obstruct or impede or influence an official proceeding or attempt to do so,” according to Seth Lucas, a senior research associate with the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. (The Daily Signal is the news outlet of The Heritage Foundation.) During oral arguments Tuesday, the justices appeared skeptical that the statute could be applied and used in the Jan. 6 cases the way it has been. “It was clear that enough justices were skeptical of the government's expansive reading of Section 1512(c) [of the statute in question] to make a reasonable guess that they're probably going to read the statute a little more narrowly,” Lucas said.  Lucas joins “The Daily Signal Podcast” to explain the details of the case and what the ruling will mean for those men and women who are facing charges for their actions on Jan. 6.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Thursday, April 18th. I'm Virginia Allen. The Supreme Court heard oral arguments this week for a case involving January 6th. And specifically, the justices are examining a statute that's being used to prosecute a number of individuals who were involved with January 6th. And the justices are looking at whether that statute is being applied correctly. Initial reports indicate that the justices did seem a little bit skeptical during a arguments on Tuesday. Seth Lucas serves as Senior Research Associate in the Edwin Meese, the Third Center for Legal and Judicial Studies at the Heritage Foundation, and he's joining us in just a moment to break down what we saw from the justices and what's likely to happen next. Stay tuned for our conversation after this. Conservative women are problematic women. Why? Because we don't adhere to the agenda of the radical left. Every Thursday morning on the Problematic Women podcast, Kristen I-Cammer, Lauren Evans, and me, Virginia Allen, are joined by other conservative women to break down the big issues and news you care about. Whether you're

interested in hot takes and conversations on pop culture or what Congress is up to, problematic women has you covered. We sort through the news to keep you up to date on the issues that are of particular interest to conservative leaning, that is, problematic women. Find problematic women wherever you like to listen to podcasts and follow the show on Instagram. Seth, Lucas, joined Snell. Seth, welcome to the show. Good to be here. So give us a little bit of the big picture of this case, if you would.

The Supreme Court heard arguments on Tuesday. This case is specifically related to January 6th. Walk us through the case. Where did it originate? So actually, to understand the case, you have to go back to the early 2000s. Oh, wow. So in the wake of the Enron scandal, Congress realized that, a lot of things that were going on, they needed to close some loopholes in federal law.

So they passed this provision, which we'll refer to today as Section 1512C. What that does is it has two parts. The first part says, okay, you can't tamper with documents that could be used in official proceedings. So they're thinking back to Enron and the destruction of financial documents to impede and hinder the investigations into what was going on there. But then they also have another provision in 1512C, which says, or otherwise obstruct or impede or influence an official proceeding or attempt to do so. So there's two parts here. We have one that's just focused on documents and other tangible objects, and you're messing

with them. That's a no-no. You can get a fine or up to 20 years in prison or, again, otherwise obstructing or impeding and official proceeding. So now we go fast forward to January 6th. So Joseph Fisher, the defendant in this case, entered the Capitol for four minutes. He and the government dispute exactly what happened on that day. He says he was just there.

He was going in, looking around, and then got pepper sprayed. The government says he was doing a lot more stuff in the process and cites a lot of text messages that they got from his phone. Other things he said and did, and they claimed that C on camera. But that's not the real issue in this case. The case isn't really about whether January 6th was an insurrection or just a protest that maybe got a little out of hand. What they're asking is, okay, what does 1512C actually say? Because the government is saying, okay, we can charge Fisher under the second part, which says obstructing an official proceeding. And the way the government's theory works is, okay, Congress trying to certify the election is an official proceeding.

Mr. Fisher goes in, and his goal is to stop them from doing that. And therefore, he violated this provision. Now, the attorney for Mr. Fisher, he's saying, no, this is a little, this is a little more complicated than the government makes it out to be. So Jeffrey Green from Northwestern Supreme Court practicum goes up and argues before the Supreme Court yesterday and says, okay, look, this is a little more complicated. Section 1512C isn't just about any proceeding, but it's about tampering with evidence. This is a lot narrower than the government makes it out to be, and that's how this case gets to the Supreme Court. Okay. So this statute, they're looking at, and correct me if I'm wrong, but depending upon how the justice is ruled, this isn't just going to affect this one individual, Mr. Fisher. It could affect many, many individuals who entered the Capitol on January 6th.

Yes, that's correct. The Solicitor General actually explained a little bit of how this would play out. There's over 1,300 people that they have indicted or are charged with various violations of federal law. But about 350, if I recall correctly, have been specifically charged with violating Section 1512C2, which they are charging Mr. Fisher with violating. Now, it's not just going to affect Fisher's case, but it's also going to affect former President Donald Trump's case. If you remember, member, the special prosecutor, Jack Smith, brought charges in the D.C. federal courts saying that President Trump attempted to do a variety of things, including obstruct the certification of the election. And the specific federal law is, again, Section 1512C2. And so depending on how the court comes down in this case, that could decide how Mr. Smith has to think about his case against President Trump, if he can even use that provision anymore. Okay, wow. What did we see from the justices on Tuesday? I know sometimes we can infer things from the questions that they ask or don't ask. Yeah, so I think you could see it was really a battle of textualism at the court. Think Justice Scalia having a field day up there in spirit.

So Justice Kagan, for instance, is tipping her hand and showing that she is buying into the government's argument that, okay, section, the first part of, Section 1512C is just about documents, but the second part is a lot broader. She's reading this as more of a standalone provision and saying, okay, well, you may not violate the statute by messing with documents, but, oh, you are violating it when you try to do something like stop the certification. So she's clearly buying into this broader reading. Justice Alito and Justice Gorsuch, however, are a little more skeptical. So they're pushing, you can see them pushing the Solicitor General Doran oral arguments and saying,

okay, well, let's test the outer limits of your theory of how this works. What if someone stands up in our courtroom and starts yelling about the January 6th defendants needing to be released or no, you need to keep them locked up? And our police have to stop the court proceedings and escort these people out. Would that violate it? And they're really trying to push and say, okay, how far does your reading go? Would it go to someone standing outside the Capitol and saying stop the steal? And so the Solicitor General really was struggling with those questions and kept pushing back and saying, well, we need to know their state of mind.

We need to know how, like, were they planning on actually stopping it? Oh, maybe they thought they had a First Amendment right to disrupt. And so they didn't have the required mental states to violate the federal law. But at the end of the day, they got her to concede and say, okay, no, these minimal interruptions wouldn't rise to this. but a violent, say, protesters overrunning the Supreme Court. Now, that would violate this provision. And so you can see them really testing her and saying something doesn't sound right here. How far are you willing to take this?

It can't possibly mean just any and all official proceedings that someone just happens to disrupt. Yeah, because I'm thinking back to hearings on Capitol Hill, and it's almost a weekly occurrence that some hearing gets interrupted by protesters, someone shouting, and that is. It does go into, okay, well, if there's one protester, well, what if there's 20 protesters that stand? Like, where is that line? That's really fascinating.

Were there any moments that struck you as surprising as you were listening to those arguments, moments that you just took note of? I think it was telling when the Solicitor General was really emphasizing two things. One, she's emphasizing the severity of January 6th. And so she's clearly doing a little bit of a... It sounded like trying to defend why they're prosecuting January 6th defendants, but not say someone that's trying to shut down a courthouse during the rioting and protests in the summer of 2021. She's trying to draw a very fine line to say, okay, this is a special instance.

This is so bad, so serious that this rises to the level of severity that the statute was designed to affect. This is the kind of obstruction that this statute was designed to combat. But then you also see her doing some other things, such as when ask about, well, remember when someone pulled a fire alarm in Congress to stop a vote, did that, was that an obstruction? And she said, well, there's not a sufficient nexus. There's not a sufficient nexus to the obstruction because that was in one building, but the vote was happening elsewhere. And so she's clearly trying to draw these lines that somehow defend why they can bring this provision, why they can charge all these people that were involved in January 6th under this provision. but not anyone else who maybe tried to stop court proceedings in the protest or tries to shut down votes or even just does things like sit-ins or, as we remember, there were protesters who stood up and started yelling in the Supreme Court. Why is the Justice Department not prosecuted them?

And she's clearly trying to draw that line very fine during our arguments. She's reading a very small needle. What kind of precedent does this case stand to set? Well, I think it's going to be a little more narrow about how do we read statutes. when you have a very specific provision followed by a very general provision. And Justice Roberts really is picking up on this long-term view of what this case will do. In fact, last week the court held in a different case that when you have a list of very specific provisions followed by a general provision, those specific provisions define what that broader provision does.

And so he's asking, okay, well, here we have something about documents and other evidence that could be used in official proceeding. And then we have more of a catch-all provision. So is this more of a standalone, read it separately, or do we have to read it in context? And how this case comes out will probably affect more of the textual arguments that you would use for other statutes of, okay, you have maybe a more general provision accompanied by a specific provision. How do you understand the relationship between those two? So take us down both roads of the federal government winning in this versus losing. what are the results for those individuals who are looking at, you know, possible sentences related to their actions on January 6th? So on one hand, if the government wins, it can just proceed with these cases.

And it also sets president for using this in other cases. So, for instance, if you have a very broad reading of what it means to obstruct an official proceeding, that opens a lot of doors for the Justice Department to prosecute people for doing similar actions in the future. And that it leaves a lot of question of, okay, well, what does this now mean? And I'm sure that will have to be something that gets litigated in the future in other contexts. But if the government loses, it's not actually clear that this is the end of the charges against these January 6th defendants. A lot of them face numerous charges. Mr. Fisher, for instance, has six other federal charges still pending against him. So even if he wins on this case decisively, he still has to go back to court in the court. defend against those six other accounts that they are still being litigated.

Okay. Long road ahead. Seth, I know lawyers do not like making predictions, but I always have to try to make you make a prediction. What do you think we're going to see here? How are the justices going to rule? Well, as expected, I will say I don't like making a prediction. But it was clear that enough justices were skeptical of the government's expansive

reading of Section 1512C to make a reasonable guess. that they're probably going to read the statute a little more narrowly. You can see from Justice Barrett and Justice Jackson, they're asking about, okay, so if we read this a little more narrowly, how does it affect the government's case down below? Could the government still just keep going and say, okay, well, there's a higher bar we need to meet? And the government was clearly saying yes. We see Fisher's counsel saying, no, this claim would be out. but they're clearly thinking about, okay, if we rule for Mr. Fisher, what's the impact going to be? And so you can already see them thinking about tailoring a rule that says, okay, we're not deciding whether Mr. Fisher violated the statute as we understand it.

But we're going to maybe clarify what the statute means. So when it goes back down to the lower court, the lower court has a little more clarity to work with. Okay, that makes sense. I know that in your role at Heritage, you keep a close eye on the Supreme Court. constantly. So before we let you go, what are a couple of other cases that you're watching that you think the American people should be aware of and following in the coming weeks and months? Well, as many people know, the Supreme Court is considering overturning the famous or infamous, depending on which side you take, Chevron Doctrine. And essentially, that says when an agency gets

sued for something that they've done, the courts have to defer under certain circumstances to how the agency reads as statute. So if the agency, for instance, as you, remember when the Biden administration mandated vaccines or in the student loan cases, the agencies claim that the statutes gave them the sweeping power to do either vaccine mandates or to just cancel student loans as they attempted to do so. And the court said, no, we're going to read the statutes a lot more narrowly. And that case is going to say, okay, how often can an agency get deference for basically getting to define its own scope of power under a statute?

So that's a big case. Watch for Relentless Incorporated versus Department of Commerce or Loper Bright versus Ramando. Those cases are together. We don't know who's writing. We don't know what to expect, but it's likely that the court's going to say you need to put the breaks on a little bit. Okay. Big case. Seth, thank you for your time.

We really appreciate it. For any of our listeners that want to follow your work, I know it's, of course, on the Heritage Foundation, heritage.org. Are you on social? Can they follow you there? Not really. Good for you for not being on social media. It's healthy for everyone.

But again, if you want to read Seth Lucas's work, it's at heritage.orgie, Seth, thank you for the time today. I really appreciate it. Thank you. And with that, that is going to do it for today's episode. Thanks for being with us here on the Daily Signal podcast. If you have not had a chance, make sure that you check out our evening show right here in the same podcast feed where we bring you the top news of the day. Also, make sure that you subscribe to the Daily Signal podcast. You never miss out on our new episodes.

And if you would, take a minute and leave us a five-star rating and review. We really love hearing your feedback. Thanks again for being with us today. We will see you right back here around 5 p.m. for our top news edition. The Daily Signal podcast is made possible because of listeners like you. Executive producers are Rob Bluey and Kate Trinko. Hosts are Virginia Allen, Brian Gottstein, Mary Margaret O'Lehann, and Tyler O'Neill. Sound designed by Lauren Evans, Mark Geiney, and John Pop.

To learn more or support our work, please visit dailysignal.com.