The Supreme Court heard oral argument Tuesday in a criminal appeal challenging the Biden administration’s use of a catch-all provision in a federal statute focused on the destruction of evidence to charge hundreds of J6 defendants with a 20-year felony. Over the course of the hour-long argument, the government made clear its view that the federal statute at issue, 18 U.S.C. 1512(c)(2), had an expansive reach — other than when Antifa burns a courthouse, a member of Congress pulls a fire alarm, or mostly peaceful protesters delay court or congressional proceedings.

Anyone paying the slightest attention to the Biden administration’s prosecution of J6 protesters and its slap-on-the-wrist coddling of other protesters knows there’s a double standard in play. But the justices’ questioning of the Biden administration during Tuesday’s oral argument in Fischer v. United States forced the government to attempt to justify that disparate treatment.

“[T]here have been many violent protests that have interfered with proceedings,” Justice Thomas opened the questioning of Solicitor General Elizabeth Prelogar. “Has the government applied this provision to other protests in the past?” the justice queried. 

After sidestepping the question, Prelogar replied that she couldn’t give an example of Section 1512(c)(2) being enforced “in a situation where people have violently stormed a building in order to prevent an official proceeding,” because nothing like Jan. 6, 2021, had ever happened before.

Justice Gorsuch then posed several more hypotheticals: “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

Prelogar responded in the negative, saying none of those events would likely qualify because, in the Biden administration’s view, Section 1512(c)(2) does not reach “conduct that has only a minimal effect on official proceedings.” 

The text of Section 1512(c), however, does not exempt de minimis interference with official proceedings. Rather, subsection (c) provides: 

(c) Whoever corruptly — 

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or 

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, 

shall be fined under this title or imprisoned not more than 20 years, or both.

So, why would the Biden administration seek to exempt protests or other disturbances that have only a minimal effect on official proceedings from the scope of Section 1512(c)? 

Simply put, because the Department of Justice has never used Section 1512(c) in the way it is being used against the J6 protesters. 

In charging Fischer, the defendant in the case, as well as hundreds of other individuals involved in the Capitol demonstration on Jan. 6, 2021, the DOJ relies on subsection (2) quoted above, maintaining that subsection, in effect, criminalizes the obstruction, influence, or impeding of an official proceeding, no matter the conduct at issue. 

That reading of Section 1512(c)(2) conflicts with the DOJ’s historical interpretation of subsection (2), which limited prosecutions to situations where the defendant had interfered with evidence that would be used in an official proceeding. To explain away the lack of prior prosecutions of protesters under Section 1512(c)(2), the Biden administration needed to make the statute about only non-minimal interferences.

Prelogar also argued that prosecutions under Section 1512(c)(2) were rare because the government lacked evidence in most cases to show the protester intended to impede a specific proceeding. 

“Maybe you're protesting a branch of government, you're outside this court, but you don't have this specific argument in mind,” that would not be a violation of Section 1512(c)(2), according to Prelogar. The solicitor general also stressed the need for the government to show a “nexus” between the protest and the official proceedings to prosecute under the statute at issue.

Prelogar’s argument to the court seemed to serve a dual purpose: to placate the court’s concerns that the government’s reading of Section 1512(c)(2) is overbroad and to convince the justices that the DOJ applies the statute uniformly. 

Judging by the questions and responses from the bench, a majority of the justices remained unconvinced — as they should be. Far from establishing that the DOJ enforces Section 1512(c)(2) uniformly, the solicitor general’s argument painted a picture of the Biden administration enlarging or contracting the statutory language to serve political purposes.

From Tuesday’s argument, it appears unlikely a majority of the court will acquiesce in the Biden administration’s reading of Section 1512(c)(2) as creating an independent obstruction of official proceedings felony. Rather, the questioning from a majority of the justices suggests the Supreme Court will hold that subsection (2) only criminalizes conduct that impairs evidence for use in an official proceeding — which is the better reading of the statute.