The NPR Politics Podcast - Was Jan. 6 An Obstruction Of Congress? SCOTUS Will Decide

Episode Date: April 16, 2024

More than 300 defendants have been charged with obstructing or attempting to obstruct an official congressional proceeding in connection to the Jan. 6 insurrection. But, so far, federal judges have disagreed about whether the statute was meant to apply only to the destruction of documents and records, not events like those on Jan 6. If the Supreme Court finds in favor of the rioters, many could see their jail sentences substantially reduced.This episode: political correspondent Susan Davis, national justice correspondent Carrie Johnson, and national political correspondent Mara Liasson.This podcast was produced by Kelli Wessinger and Casey Morell. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. Hi, this is Alan, and I'm standing astride the Prime Meridian Line in Greenwich, London, where the West and East start at zero degrees, zero minutes, and I'm standing astride the Prime Meridian Line in Greenwich, London, where the West and East start at zero degrees, zero minutes, and zero seconds. This podcast was recorded at 12.38 p.m. on Tuesday, April 16th.

And things may have changed by the time you hear this, but I will still be admiring the spectacular views over London. Well, it sounds spectacular. I love a good view. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics. I'm Mara Liason, national political correspondent. I'm Carrie Johnson. I cover the Justice Department. And today, the Supreme Court heard arguments in a case challenging an obstruction law that could affect hundreds of defendants charged with crimes for their role in the January 6th attack on the U.S. Capitol. Carrie, this is a legally complex case, so I want to start as simple as possible. Part of the challenge to this law is brought by a man named Joseph Fisher. Who's he? Joseph Fisher was a police officer. He showed up at the Capitol on January 6, 2021,

and according to the charges against him, he yelled charge at the other rioters as they entered the building. He engaged in a scuffle understood that Congress was certifying the votes that day on January 6th and that he actually had posted or said earlier they can't vote if they can't breathe. So Fisher, along with hundreds of other people, have been charged under a 2002 obstruction law, which says what? It says anyone who corruptly alters, destroys, conceals a document with intent to basically mess up an official proceeding, mess up the way you can use that paper in an official proceeding, should be guilty of obstruction under this law. And also anyone who otherwise obstructs an official proceeding. And that otherwise is super important

because this case, of course, involving this former cop doesn't involve a piece of paper. It involves him showing up at the Capitol. The document point is key. And I do just want to dogleg a little bit because when you told me this, I just thought it was interesting that this 2002 law was enacted after the Enron corporate scandal. Exactly. And I remember this super well because I lived in Houston a couple of times covering the trial of Arthur Anderson, Enron's accounting firm. Remember, there were those images of all the papers that Anderson had shredded related to Enron. And Anderson was actually convicted. And then the Supreme Court invalidated that conviction in part because of problems with jury instructions about obstruction of justice.

So prosecutors in Congress saw this big gap here. And they moved in 2002 to try to close some of that gap in the obstruction law by passing these tweaks. But now here we are all these years later before the Supreme Court, again, fighting over what this obstruction law means. And I think that you made a point when we were talking about this case that I think is important to keep in context, because there seems to be sort of a broader legal problem with a lot of obstruction of justice statutes. This isn't the first time this idea of what constitutes obstruction of justice has been challenged in the legal system. Yeah. Congress can't seem to do a good enough job of drafting clearly. And the Supreme Court,

increasingly over time, has been pretty allergic to the idea of giving prosecutors really broad power to prosecute obstruction of justice. And that was the heart of the oral arguments today before the Supreme Court. You that was the heart of the oral arguments today before the Supreme Court. You know, the government lawyer, the Solicitor General Elizabeth Prelogar, basically drove right into the point that this case involved January 6. Here's what she had to say. On January 6, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power. Many crimes occurred that day. But in plain English, the fundamental wrong committed by many of the rioters, including

Petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. And you know, Sue, the conservative justices heard her say that, and then they proceeded to complicate matters and kind of throw a bunch of very difficult hypotheticals at her about all kinds of other people who might be disrupting an official proceeding in Congress, people who yelled during Brett Kavanaugh's confirmation hearing. Justice Neil Gorsuch, a conservative, raised a bunch of questions to the SG about other ways to disrupt proceedings. 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? Would pulling a fire alarm before a vote qualify for 20 years in federal prison? That fire alarm,

of course, was in reference to Jamal Bowman, a Democrat from New York, a lawmaker who recently, he says, accidentally pulled a fire alarm, but it did disrupt the actions on Capitol Hill briefly. Carrie, what did Prelogger say to Gorsuch's examples? She said that this obstruction law at issue in this particular case involving January 6th wasn't about like little disruptions, little arguments in the flow of the Supreme Court or Congress. It had to involve a specific intent to mess up an official proceeding like in Congress

or at the high court. And it had to involve somebody acting corruptly. And she said that's why, even though there have been something like 1,350 cases against January 6th rioters, they've used this statute in only about 350 of them. But the violence was not the divider between just protesting a congressional hearing and what happened on January 6th. In many of the cases the Justice Department has charged, there has been no violence. So the Justice Department has used this statute in context unrelated to January 6th and not just involving papers.

The government says it's used this law to try to prosecute people who have squealed about a grand jury proceeding, which is supposed to be secret, or people who have exposed the identity of undercover law enforcement officers, thus obstructing an official proceeding like a grand jury hearing or something like that. But in large part, this case got to the court because it's been one of the most significant tools the DOJ has used against January 6th rioters and people who stormed the Capitol. Mara, I just have to imagine that there's a lot of people listening to this and thinking like, look, I get people heckle on Capitol Hill, you can disrupt the State of the Union. But if what happened on January 6th isn't obstruction of an official proceeding of Congress, then what could possibly be considered reasonable under that statute? Yeah, it seems pretty straightforward. I mean, the January 6th rioters were very clear about what they were up there trying to do, stop Congress from certifying the election. Well, let's take a quick break and we'll talk more about the arguments before the

court when we get back. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate to ask you this. What in terms of the justices questioning in this case stood out to you? And did it give you a sense of how conflicted or united the court might be on this question? You know, I heard loud and clearly what conservative justices like Samuel Alito, Clarence Thomas, Neil Gorsuch had to say. They seem really concerned about how much power this statute gives prosecutors, and they seem to want to put some limits on that power. Other conservatives ask questions, too, like Brett Kavanaugh and the Chief Justice John Roberts. Brett Kavanaugh, in particular, seemed to be asking about other charges this defendant, Joseph Fisher, the former cop, faces. There's six other counts in the indictment here, which include civil disorder,

physical contact with the victim, assault, entering and remaining in a restricted building, disorderly and disruptive conduct, disorderly conduct in the Capitol building. And 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? Because those counts don't fully reflect the culpability of petitioner's conduct on January 6. Those counts do not require that petitioner have acted corruptly to obstruct an official proceeding. And obviously, Petitioner committed other crimes that we've charged and that we're seeking to hold him accountable for. But one of the distinct strands of harm, one of the root problems with Petitioner's

conduct is that he knew about that proceeding. He had said in advance of January 6th 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 on January 6th with that intent in mind and took action, including assaulting a law enforcement officer that did impede the ability of the officers to regain control of the Capitol and let Congress finish its work in that session. And I think it is entirely appropriate for the government to seek to hold Petitioner accountable for that conduct with that intent. So the conservatives on the court had a certain line of questioning. What about the liberals on the court? Did they sort of counter

these arguments at all? Yeah, Justice Sonia Sotomayor and Justice Elena Kagan both seem squarely behind how the DOJ was using this obstruction law, specifically with respect to defendants who tried to storm the Capitol on January 6th. Interestingly enough, Justice Amy Coney Barrett, a Trump appointee, and Justice Katonji Brown Jackson, the Biden appointee, seem to be trying to craft maybe a more narrow agreement that would allow the DOJ to use this tool, use this law as a tool, but maybe not in all the cases it's been using them so far. So if they rule against the Joseph Fishers, the status quo remains. But what happens if they rule in favor of the Joseph Fishers, the hundreds of people who've been charged under the statute?

What's the impact? You know, some of these people have not yet gone to trial like Joseph Fisher. He still faces trial. Other people have already been serving time. And in fact, judges in Washington, D.C., have let out early about 10 people, a small number of people, because this law is under challenge at the Supreme Court. And so DOJ can alleviate some of the problems for itself by charging these people with other offenses instead of this law, which is kind of under the gun here. And judges can make up for it as well by taking all of this stuff into account

in their sentences. So, Carrie, let me ask you about the most famous defendant in the January 6th cases, Donald Trump. What does this mean for him? Oh, boy. So remember— This is where it gets tense again. Oh, boy. So remember the former president faces four charges in Washington, D.C. over January 6th. Two of them involve this obstruction law.

One is obstruction across the board, and the second is conspiracy to engage in obstruction. So depending on how the high court rules here, it could wipe away half of the charges Trump faces in D.C. However, the Justice Department has a counterargument here. And the counterargument here is that, hey, you may not like us using this statute when it comes to people breaking into the Capitol, but the statute was passed after accounting scandals, and it's about documents and paper. And destroying documents and possession of documents and the documents, like actual paper documents. Actual paper documents, like were shredded by Arthur Anderson and Enron. And so there are documents involved in Donald Trump's January 6th case.

There's the allegation that Trump engaged in a conspiracy to put forward a slate of fake electors. Which was written down on paper. Which was written down on paper and passed to people in the Congress and elsewhere in the administration at the time. And there's an allegation that Trump and other people were allegedly trying to get the Justice Department to send a letter to state election officials in Georgia. And so there is paper in that case. And the special counsel, Jack Smith, would argue that even if the Supreme Court ties the Justice Department's hands with respect to people who stormed the Capitol, these charges should remain for Trump in the January 6th case. Mara, this does seem like a case that is politically fraught in many ways because I feel like anything involving January 6th has become very divided in the country's collective memory. But also, if the court decides, and we don't know how the court will decide, but if it's decided along ideological lines,

it goes back to that question we've talked about a lot in the podcast, is sort of the public trust in an institution. If everything looks like it's decided between partisan players with partisan intentions, there's fewer trust in the public that they have in the decisions the Supreme Court. And don't forget, January 6th is not only just a divisive event, but Donald Trump has embraced the January 6th rioters more closely over time. He's featured them at rallies. He said he would pardon them. He's called them patriots and hostages. He's featured the January 6th anthem, featuring these January 6th defendants singing the Star Spangled Banner. So January 6th, like everything else in American politics, is extremely polarized, but also it's to get people to lose faith in the justice system, to believe that he is a victim, that all these things are just witch hunts, that American justice is rigged against him. And all of that is just really bad for democracy. And Carrie, the court is still yet

to hear one of the most politically volatile cases involving Donald Trump, the question of whether he has political immunity in these prosecutions. The third case, arguably, involving Donald Trump this term in this court. It's unbelievable how many cases have gone to the high court involving Trump. And this one is that Trump is basically saying the indictment against him in Washington, D.C. should fall by the wayside because he was not engaging in a conspiracy to obstruct the congressional certification or to deprive millions of voters of their voting rights, but rather he was investigating what he perceives to be voter fraud and election integrity problems across the country that he was engaging officially as the president of the

United States, and he shouldn't be able to be charged with any wrongdoing because he was the president. And the court will answer both of these questions by late summer? By late summer, we would hope. And you remember the D.C. trial for Trump, which had been scheduled to start in March. It's all in limbo now. Everything's all in limbo. And the question is, depending on what the court does, will there be enough time to hold that trial or at least start that trial before the election in November? I'm really not sure. All right.

That is it for us today. I am Susan Davis. I cover politics. I'm Mara Liason, national political correspondent. And I'm Carrie Johnson. I cover the justice world. And thanks for listening to the NPR Politics Podcast.