Supreme Court Capitol Riot Case May Leave Jailed Protesters Out in the Cold

The U.S. Supreme Court's ruling in a case challenging the Department of Justice's (DOJ) use of obstruction charges in cases related to the January 6, 2021, riot at the U.S. Capitol may leave some defendants disappointed, legal experts told Newsweek.

The Supreme Court last month agreed to hear a challenge to the DOJ's interpretation of the "obstruction of an official proceeding" charge. The charge at the center of Joseph Fischer's case is the same one deployed against hundreds of defendants allegedly involved in the attack on the Capitol, including former President Donald Trump.

Fischer is one of three January 6 defendants who filed a petition with the court. Its ruling could upend how January 6 cases are prosecuted moving forward and would also have implications for hundreds of defendants already charged with obstruction.

During the riot, Trump supporters violently protested the 2020 presidential election results in an alleged effort to block Congress from certifying then President-elect Joe Biden's victory in the Electoral College. Trump has said the election was stolen from him via widespread voter fraud, despite a lack of evidence to back up the claims. He is among those facing obstruction charges in his federal election interference case and has pleaded not guilty to all counts.

Michael McAuliffe, a former federal prosecutor and former elected state attorney, told Newsweek on Friday afternoon that while the Supreme Court's ruling will be "significant," the extent to which a rejection of the DOJ's definition of the charge would help defendants would vary from case to case.

"The government's enforcement efforts to hold those who actively participated in the January 6th attack on the Capitol would be hurt by the Supreme Court limiting the application of the obstruction of an official proceeding statute, but those efforts would not end and most defendants would still be subject to some criminal liability and punishment," McAuliffe said.

He said that defendants who have already pleaded guilty to the obstruction charge and have been sentenced "waived their rights to claim the scope of statute doesn't cover their conduct."

"As such, those cases likely wouldn't be revisited," he said. "For defendants who went to trial and were convicted of the same specific obstruction charge, they would have needed to preserve the issue during trial and in any subsequent appeals."

Cases that are pending and have the scope of the obstruction charge as part of their appeal may be more influenced by the outcome of the Fischer case, McAuliffe said.

Former federal prosecutor Gene Rossi, however, offered a different perspective on the matter in a phone interview with Newsweek on Friday afternoon.

Rossi said the court potentially ruling against the DOJ would be "a huge benefit" for January 6 defendants who would be able to request resentencing.

"For the defendants who have been convicted and sentenced, they can go back to sentencing judge and ask for a resentencing if Fischer wins. Or ask for a retrial, because the 1512 count in every trial was the north star, the gold standard and the capstone of the government's presentation of evidence," he said.

"If you remove that 1512 charge from the retrial, the jury will not be poisoned by the avalanche by the evidence that was introduced related to that 1512 charge."

Former federal prosecutor Barbara McQuade told Newsweek that each case would "have to be reviewed on its own facts," noting that defendants who are part of cases in which all appeals are final are "not entitled to retroactive review."

"Those convicted of that single count would likely prevail," McQuade said. "Other defendants may have been convicted of additional crimes as well, and would have to show they were prejudiced by spillover evidence of the obstruction charge to receive a new trial."

The U.S. Supreme Court is set to begin hearing arguments in the Fischer case in March or April.