Legal experts said the Biden administration was “on the ropes” in Tuesday’s oral arguments at the Supreme Court in a case questioning whether a Jan. 6 rioter can be charged with a federal “obstruction” crime, which carries implications for former President Trump.
On Tuesday, Jeffrey Green, lawyer for Joseph Fischer – who is one of more than 300 people charged by the Justice Department with “obstruction of an official proceeding” in the Jan. 6, 2021, riot at the Capitol – argued that the federal statute shouldn’t apply and that it had only ever been applied to evidence-tampering cases.
The Justice Department argued that Fischer’s actions were a “deliberate attempt” to stop a joint session of Congress directly from certifying the 2020 election, thus qualifying their use of the statute that criminalizes behavior that “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do” and carries a penalty of up to 20 years in prison.
But legal experts told Fox News Digital that the government’s argument started to “fall apart” after questioning from the justices.
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Jonathan Turley, a practicing criminal defense attorney and professor at George Washington University, praised Solicitor General Elizabeth Prelogar as one of “the best appellate litigators” but said she appeared “clearly on the ropes” and “made some uncharacteristic concessions” on Tuesday.
At one point, Justice Neil Gorsuch questioned whether, under the government’s argument, heckling at the State of the Union address or the recent incident of Rep. Jaamal Bowman, D-N.Y., pulling a fire alarm and diverting a House vote would constitute “obstruction.”
“There are multiple elements of the [statute] that I think might not be satisfied by those hypotheticals,” Prelogar replied, adding that obstruction requires “meaningful interference” and “corrupt intent.”
“Gorsuch laid bare the problems for the government’s argument,” Turley said. “This is where the government’s arguments seem to fall apart in that.”
“When pressed … Prelogar started to introduce contextual standards and said that these would just not be strong cases. And that was not the way to go, in my opinion.”
Carrie Severino, former clerk for Justice Clarence Thomas and president of the Judicial Crisis Network, noted that the government “had a hard time explaining how this wasn’t going to be such a broad, open door that it could allow a lot of behavior that we clearly understand to be protected First Amendment speech – peaceful protests, etc. – to get swept in the way that they’re charging it.”
“There’s not a First Amendment right to trespass or to block things. But I think you do have to worry about … this is an incredibly draconian type of response that could be applied to things that we absolutely wouldn’t believe should be subjected to a 20-year prison sentence,” she said.
Former Arizona Attorney General Mark Brnovich told Fox News Digital that the government “shouldn’t be trying out untested or ‘novel’ theories in high-profile cases.”
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“I’m a big believer in the rule of lenity. That basically means criminal statutes should be construed narrowly, and when in doubt, you err on the side of the individual and not just throw stuff against the wall,” he said.
Chief Justice John Roberts pressed Prelogar about an opinion issued in 2019 by the DOJ’s Office of Legal Counsel (OLC) – an office that serves as a legal adviser to the department and other executive agencies – which said the obstruction statute should be viewed narrowly and contradicts DOJ’s position in Tuesday’s case.
Prelogar said that opinion was never “formally” adopted, but she couldn’t say what the DOJ’s process is for formerly accepting an OLC paper.
“It was not a good moment or a good look for the government,” Turley said.
“There were a lot of shrugs coming from the government in this oral argument. I mean, time and time again, when pushed to the wall, the government would simply shrug off the contradiction. That’s not going to work with these justices,” Turley added.
Turley said that should the justices decide the case in favor of the Jan. 6 defendant, it could mean that Special Counsel Jack Smith drops the two obstruction counts against Trump.
“The obstruction counts allowed Smith to frame the president’s remarks in a conspiracy to obstruct and prevent the counting of votes. The elimination of those counts makes the narrative more challenging for Smith because those two counts were emblematic of his narrative,” Turley said.
“That is, they specifically alleged an effort to obstruct the proceeding. Those two counts amplified that aspect of the government’s theory.”
A decision in the case, Fischer v. United States, is expected in early summer.
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