Mystery Surrounds Supreme Court's Decision on Capitol Riot Case

Three petitions arising from January 6 Capitol riot prosecutions have been relisted by the Supreme Court, raising questions about how justice might rule, why a decision is being delayed and whether good news for former President Donald Trump could be on the horizon.

The court released a new order list on Monday that included the relisting of three different appeals brought by defendants Edward Lang, Garret Miller and Joseph Fischer, who are challenging the Justice Department's reading of the felony "obstruction of an official proceeding." The justices opted to take no action on the matter, and push the matter until the new year instead.

A U.S. District judge previously dismissed the charge against the three defendants, but a U.S. Appeals Court reversed that decision in April. The three men have not gone to trial on the charge.

The obstruction charge has been deployed against hundreds of defendants allegedly involved in the January 6, 2021 riot, including Trump, who faces the charge in his federal election interference case. If the justices decide so much as to take up the case, it would take months for them to hear oral arguments and they would then be expected to issue a ruling before June. If the Supreme Court strikes down the DOJ's application of the federal law, such a decision is expected to upend hundreds of cases.

Asked about the court's Monday announcement, Lang's attorney Norm Pattis told Newsweek, "Well, the petition is still alive. So that is good," but added that he wasn't sure why the justices have chosen to relist the cases.

"The Court deferred a decision whether to accept the cases for review and possibly scrutinize the government's use of a specific subsection of the obstruction of justice statute," former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek. "It's really like reading tea leaves—you can see what you wish. We'll know the answer in January."

The court was scheduled to discuss the cases in their private meeting earlier this month, but it was canceled following the death of retired Justice Sandra Day O'Connor. The petitions will now be reconsidered at the next conference date of January 5, 2024, paving the way for a decision to be announced as early as January 8, 2024.

"It is almost impossible to know exactly what is happening when a particular case is relisted, but there are a few possibilities," according to analysis website SCOTUSblog.

Those possibilities include one justice wanting to pick up a fourth vote to grant review of the case, one or more justices wanting to analyze the petition more closely, a justice is still in the process of writing an opinion on why the court denied review or the court could be writing an opinion to reverse the decision without oral arguments.

Responding to Monday's order list, legal commentator Steve Vladeck said on X, formerly Twitter, "That *could* mean that the Court is going to take up the issue, but it could just as easily mean that 1+ justices want to write an opinion respecting a denial."

Although it's unclear what lies ahead for the January 6 petitions, Lawfare senior editor Roger Parloff noted that "it does increase statistical likelihood of a grant."

"Unwelcome but not catastrophic news for DOJ," Parloff wrote on X.

Conservative legal analyst Julie Kelly agreed that the announcement would likely increase the chances that the Supreme Court would take up the cases, tweeting that relisting is "usually a good sign" for petitioners.

"But how SCOTUS' timing works against a running clock in Trump's case—this is one of 4 charges in Jack Smith's indictment—is unknown," Kelly said. "One takeaway is this is not encouraging news for either DOJ or Smith."

Former federal prosecutor Neama Rahmani told Newsweek the relisting of the petitions bodes well for Trump.

"If the the Supreme Court reverses the rioters' convictions, the logic would also apply to Trump, so he would be chipping away at some of Smith's charges," Rahmani said.

In the federal election interference case, Trump was charged with one charge of conspiracy to defraud the United States, one charge of conspiracy to deprive citizens of the right to vote and have one's vote counted, and two charges of obstruction of an official proceeding. He pleaded not guilty to all four felony charges.