Right-Wing Justices Join Trump in Defending January 6 Insurrectionists

Trump calls them hostages; conservative justices suggest they're victims of prosecutorial overreach

Former President Trump refers to the convicted January 6 insurrectionists as “hostages” and promises to pardon them if he’s re-elected. Conservative members of the U.S. Supreme Court now join Trump in trying to help the rioters – and Trump, too – evade responsibility for their attack on the Capitol. As a lawyer and a member of the bar of the Supreme Court, I see an astonishing display of judicial hypocrisy.

The legal issue before the Supreme Court is whether the Justice Department had somehow gone too far in applying to the rioters a statute that punishes “obstruct[ing] “an official proceeding, or attempts to do so.”

On the face of it, it seems plain that Trump’s insurrectionist mob violated the statute.

The Congressional certification of the results of the 2020 election is certainly an official proceeding, indeed a core proceeding specified by the Constitution itself. Trump’s rioters came to the Capitol for the specific purpose of stopping that proceeding. And in fact they succeeded in obstructing and impeding the official proceeding: Through repeated and concerted acts of violence, the mob forced its way into the Capitol building, forced the Vice President and members of Congress to flee, and halted the official proceeding for several hours.

What’s the issue, then? The right-wingers who dominate the Supreme Court claim to be literal “textualists,” who say judges must simply apply the law as it is written. The statute in this case as it is written is not complicated, and involved no interpretive puzzle. It punishes with up to 20 years in jail anyone who  “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”

“Corruptly” here means using illegal means, so the application of the statute is obvious. Assaulting police officers, breaking windows and doors, sacking Congressional offices, and threatening to hang the vice president are illegal and corrupt means.

In the oral argument, the conservatives suggested the law might not mean what it says because another part of the statute make it illegal to engage in other actions that interfere with official proceedings. Huh? So what? The argument makes no sense. It doesn’t change the plain meaning of the section Trump’s mob was charged with violating.

The conservative justices suggested two arguments on why it might be unreasonable to apply the law to the insurrectionists.

First, Justice Clarence Thomas – husband of insurrection-supporting Ginni Thomas – suggested that the government might be engaged in selective prosecution. “There have been many violent protests that interfered with proceedings. Has the government applied this provision to other protests?”

Prosecutors often exercise discretion on who is charged with what crimes. Claims of selective prosecution are rarely successful because a defendant must prove he or she was singled out for an impermissible purpose.

Even if it were shown that others might have been charged with obstructing other unidentified official proceedings, it is obviously permissible to select for prosecution or to punish more seriously those who (1) engage in serious, concerted violence over a prolonged period of time, (2) in order to obstruct a core constitutional proceeding, and (3) actually succeed in halting the proceeding.

Second, conservative justices asked whether the statute could apply to peaceful hecklers who interfered with argument in the Supreme Court itself.

This kind of legal reasoning may be appropriate in seeking to understand the full scope of a statute that allows for punishing violations with up to 20 years imprisonment. But the scope of the statute not a legitimate concern here. The actions the defendants committed on January 6 are not borderline cases, but are at the center of legitimate Congressional concern. If the statute cannot be applied to those who participate in violence to overturn the certification of an election, when could it ever be applied?

No one is facing twenty years for heckling. In fact, no one is facing twenty years for the attempt to overturn the election on January 6^th! The average sentence for those charged only with obstruction has been just 26 months imprisonment.

But if anyone ever had been charged with serious prison time for heckling, the court could avoid an unjust result by interpreting “obstruction” as requiring more than interrupting an argument for a moment by nonviolent shouting.

No judge can honestly claim to have difficulty distinguishing insurrection from heckling. It is impossible to avoid the conclusion that the right-winger justices are doing all they can to help those who tried to overthrow our democracy – including particularly Donald Trump, who is being prosecuted under the same statute.

The Supreme Court’s right-wingers have not taken leave of their senses. Just as they were helping Trump put off one of his trials until after November – by agreeing to hear his ridiculous claim that Presidents enjoy complete immunity from prosecution for crimes they commit while president – now they appear ready to throw Trump another life line. The “conservative” justices of the Supreme Court are simply protecting Donald Trump’s effort to overthrow our democracy.

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