The solicitor general confirmed on several occasions during an April 16 hearing that the Department of Justice’s interpretation of a 2002 Enron-era obstruction law could be used against peaceful protestors. The obstruction law carries a maximum of 20 years in prison.
Solicitor General Elizabeth Prelogar told the U.S. Supreme Court that it was the Biden administration’s opinion that the law being used to prosecute Jan. 6 protester Joseph W. Fischer, 57, of Jonestown, Pennsylvania, could also be applied to other peaceful protesters.
Mr. Fischer has appealed his case before the nation’s high court after the Department of Justice made the unprecedented move to charge the defendant under Section 1512(c) of the Sarbanes-Oxley Act, which was enacted after Enron executives destroyed evidence ahead of an official investigation.
During the hearing on Mr. Fischer’s appeal, conservative justices were skeptical of applying the Sarbanes-Oxley Act to Jan. 6 and the government’s use of the obstruction provision that carries a 20-year maximum sentence.
Justice Neil Gorsuch questioned Ms. Prelogar about whether peaceful protests could lead to 20 years in prison due to her assertion that the law in question acted as a “catch-all” to prosecute that obstruct an official proceeding.
“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?” Justice Gorsuch questioned. ”Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
Ms. Prelogar responded, saying that there were “multiple elements of the statute” that would not be satisfied in the hypotheticals Justice Gorsuch proposed. The attorney went on to assert that there are “built-in limitations” to the statute, saying “many of those things wouldn’t be something the government could charge or prove.”
However, when pressed further, Ms. Prelogar admitted that in instances such as where a protester intentionally attempted to impede proceedings, the statute used to charge Mr. Fischer could be utilized to imprison protesters.
Justice Gorsuch went on to ask if there was a “Mostly peaceful protest that actually obstructs and impedes in an official proceeding for an indefinite period,” would the government consider that a chargeable offense under the Sarbanes-Oxley Act.
The solicitor general confirmed that “if they intend to obstruct and we’re able to show that they knew that was wrongful conduct with [the] consciousness of wrongdoing, then yes,” protesters could be charged and face up to 20 years in prison.
Several other justices queried the argument used to support the Justice Department’s implementation of the statute, with Justice Amy Coney Barrett questioning Ms. Prelogar about whether she had put a “violence requirement” on the application of the statute being used to prosecute Mr. Fischer.
“Are you putting a violence requirement as an overlay on ‘obstruct influence impede’?” Justice Barrett said, quoting the statute in question and citing the solicitor general’s previous answers to questions. “It seemed like you kept emphasizing the aspect of violence that was present on Jan. 6.”
Ms. Prelogar responded, saying, “No, we don’t think that’s a requirement under the statute … when we can point to action here like assaulting a police officer, that is obviously wrongful, unlawful conduct, and everyone knows that that’s a crime and you cannot do that.”
In addition to the conservative justices’ questions, Justice Ketanji Brown Jackson admitted to struggling with the solicitor general’s ‘leap’ in legal interpretation.
Following Ms. Prelogar’s admission that the statute being used to prosecute Mr. Fischer for his participation in the Jan. 6 protests was created to “close the Enron loophole,” Justice Jackson asked for clarification on the solicitor general’s argument.
“I’m struggling with leaping from what’s happening in one in the context in which [the statute] was actually enacted to all of obstruction in any form,” Justice Jackson said.
Ms. Prelogar responded, saying, “I think the reason why we wouldn’t suggest that the context could bear that narrower reading is because of the actual language that Congress used.”
The attorney went on to explain that if Congress were worried about “records-based evidence,” there would have been easier “templates to add” when creating the statute.
