Supreme Court Rules for January 6 Rioter in Obstruction of Justice Case
BU historian Thomas Whalen analyzes the ripple effects the decision may have on the presidential election
About a quarter of the defendants charged with crimes related to their participation in the January 6, 2021, attack on the US Capitol have been charged with obstruction, and two of the four charges against Donald Trump in his federal case also fall under the obstruction law at the heart of the Supreme Court’s decision Friday. Photo via AP/Jose Luis Magana
Supreme Court Rules for January 6 Rioter in Obstruction of Justice Case
BU historian Thomas Whalen analyzes the ripple effects the decision may have on the presidential election
Siding with an off-duty Pennsylvania police officer who attended the “Stop the Steal” rally at the US Capitol on January 6, 2021, Friday’s Supreme Court decision in Fischer v. United States made it more difficult to charge any January 6 Capitol rioters with obstruction of justice—including former president Donald J. Trump.
The decision, widely viewed as a boon for Trump and the Republican party, came less than 12 hours after the first presidential debate of the 2024 election, which featured a stilted performance by President Joe Biden that left Democrats panicking.
“From the Democrats’ point of view, this is the cherry on top of a crap sundae,” says Thomas Whalen, a College of General Studies associate professor of social sciences.
In the 6-3 decision, which included some unlikely alliances, Supreme Court justices ruled that federal prosecutors improperly charged hundreds of January 6 rioters with obstruction, a charge that comes with a maximum penalty of 20 years. The case hinged on part of a law that was enacted after the exposure of massive fraud and shredding of documents during the collapse of the energy giant Enron.
The disputed language in the law prohibits anyone from “corruptly” destroying or concealing a government record, or who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
It’s the “otherwise” that is at the heart of the Fischer case. Justices had to determine whether January 6 rioters who didn’t physically destroy documents, but whose actions were intended to disrupt the certification of President Joe Biden’s electoral victory, participated in obstruction of justice.
Writing for the majority, Chief Justice John Roberts said that federal prosecutors interpreted the law too broadly, lumping together disparate actions that carry different penalties. Roberts was joined by four other conservative justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—as well as Kentanji Brown Jackson, who is typically more liberal.
“Although the government’s all-encompassing interpretation may be literally permissible, it defies the most plausible understanding” of the law in question, Roberts writes, and “it renders an unnerving amount of statutory text mere surplusage. Given that [the law’s] subsection…was enacted to address the Enron disaster, not some further flung set of dangers, it is unlikely that Congress responded with such an unfocused and ‘grossly incommensurate patch.’”
Amy Coney Barrett, typically more conservative, wrote the dissent. She was joined by liberal justices Sonia Sotomayor and Elena Kagan.
“Joseph Fischer allegedly participated in a riot at the Capitol that forced the delay of Congress’s joint session on January 6th,” Barrett writes. “Blocking an official proceeding from moving forward surely qualifies as obstructing or impeding the proceeding by means other than document destruction. Fischer’s alleged conduct thus falls within [the law’s] scope.”
About a quarter of the defendants charged with crimes related to their participation in the January 6 riot have been charged with obstruction, and two of the four charges against Trump in his federal case also fall under the obstruction law at the heart of the Supreme Court’s decision Friday.
In a separate case, the justices are expected to decide Monday whether Trump is immune from prosecution, broadly. Their ruling could render any implications from Friday’s decision, as they relate to Trump’s federal trial, basically moot.
BU Today spoke with Whalen, whose research includes modern American politics and presidential leadership, about what the court’s obstruction decision means for Trump and the 2024 election already underway.
Q&A
with Thomas Whalen
BU Today: Broadly, how might this decision affect the 2024 election?
Whalen: Well, from the president’s point of view—and from a Democrat’s point of view—this is turning out to be a bad 24 hours. You had a hugely disastrous debate performance [Thursday night]. Now, this Supreme Court ruling, which seems to unravel the prosecution’s argument that this was by all accounts an insurrection against the United States government in a free and fair election. And I think at the very least, this is not a good sign about the case against Donald Trump by our government, because now, at least two of those counts might be thrown out.
Speaking as a historian, when you have an insurrection—which is essentially a civil war against the federal government—there should be consequences. I don’t care how narrowly you define it, there should be legal recourse against individuals, particularly when they are storming the Capitol, destroying property, and attacking federal offices. The Supreme Court ruling now makes it very, very difficult for that to occur. And it seems to be like an open invitation in the future to further violence, particularly when it comes to the next election and how the electoral votes will be counted.
BU Today: Taking into account the debate on Thursday, what’s the overall impact of this decision on the presidential election? What’s at stake?
Whalen: The overall effect is that the rule of law is kind of becoming a joke in this country. These are serious charges. And to let these individuals off on such a narrow definition of the law is just absurd. And the irony here is that typically, conservatives and Republicans over the years have always branded themselves as the party of law and order. And what they are supporting here is, frankly, disorder and breaking the law. I think if you’re going to have a functioning democracy, you have to have a healthy respect for the law, whether you agree with it or not.
BU Today: What do you make of the unlikely split among Supreme Court justices in this case?
Whalen: In some sense, that made me feel good—it’s not strictly on rigid ideological grounds. Amy Coney Barrett recently has been giving signals that she is not going to take the hard right wing stance just out of a kind of loyalty to ideology. She is actually taking the time to think about these questions based on her interpretation of the rule of law. And that’s refreshing.
But there is that hardcore conservatism on the Supreme Court. I think the public view of the Supreme Court is that it is a partisan group. And given the decisions, given how many precedents have been thrown out the window here [this term], it’s hard to dispute that at this point. Again, if you want to have a healthy democracy, you have to have a court system that all the people respect—whether you agree with the decisions or not. That’s been thoroughly eroded, though. It’s really been eroded since Bush v. Gore in 2000. And it’s just steadily gotten worse. Right now, we’re at the absolute nadir.
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