The Supreme Court’s decision on Friday that prosecutors had misused an obstruction law in charging hundreds of rioters who attacked the Capitol is the latest example of the persistent challenges the Justice Department has faced in grappling with the consequences of Jan. 6, 2021.
By and large, the department has succeeded over the past three years in moving against members of the pro-Trump mob who sought to disrupt the certification of President Biden’s victory on Jan. 6, and in winning convictions on seditious conspiracy charges against members of two far-right groups that were instrumental in stoking the violence that day, the Proud Boys and the Oath Keepers.
But lacking any established legal blueprint for addressing an assault on the foundations of democracy, prosecutors sometimes got creative with the law. And that has left them vulnerable to second-guessing by the courts on how they have pursued criminal cases both against the rioters and against former President Donald J. Trump, and contributing to a long series of challenges and delays.
The court’s new ruling on the obstruction law will hardly cripple the Justice Department’s ability to go after the rioters, but it will constrain prosecutors by restricting the use of an important tool they have relied on to seek accountability against the most disruptive members of the mob.
Within weeks of the Capitol being breached, Michael Sherwin, then the top federal prosecutor in Washington, promised to wage a campaign of “shock and awe” against the rioters who had attacked the building.
Even though Mr. Sherwin said that sedition charges might be filed at some point against some of the defendants, his prosecutors ended up leaning much more heavily on the obstruction statute to go after those who they believed had committed the central crime that day: interfering with the certification of the election, which was taking place at a joint session of Congress.
Initially designed as a hedge against corporate malfeasance, the obstruction law was never an easy fit for addressing the chaos that erupted at the Capitol. And almost from the start, defense lawyers complained that the government had stretched the statute far beyond its meaning, accusing prosecutors of using it mostly because it carried a stiff maximum penalty of 20 years in prison.
The Supreme Court largely agreed with all of this, narrowing the scope of the law and ruling that it could be used only in cases hewing more closely to its original intent, where documents had been tampered with, or where other forms of evidence had been damaged or impaired.
With their ruling, the justices effectively ratified the argument that the Justice Department had seized on the breadth and vagueness of the statute and improperly twisted it to fit the circumstances of events on Jan. 6.
“The court has affirmed the common sense notion that a citizen obstructs justice only by impairing evidence,” said Nicholas Smith, a lawyer who was part of the early push against the way the Justice Department was using the law. “It rejects again attempts by clever prosecutors to riff on equivocal language.”
Many of the charges that Jan. 6 defendants have faced have been fairly straightforward. Those who attacked the police were charged with assault. Those who broke windows were accused of destroying government property.
But from the start, the obstruction law was used by prosecutors to characterize an event that was harder to pin down: the ways in which rioters had disrupted the election certification.
Sometimes prosecutors used the law against people who had made it all the way to the floor of the Senate, arguing that they played a direct a role in chasing lawmakers from their duties. At other times, it was enough if defendants showed some sort of understanding — through text messages or Facebook posts, for instance — that their actions had been meant to disrupt the certification process.
Under the court’s new ruling, however, prosecutors are likely to find it difficult to use the obstruction charge in future riot cases — unless, of course, they can show that defendants impaired or tampered with evidence during their time inside the Capitol.
The prosecutors may turn to a different law as their go-to charge for those who disrupted the democratic process that day: 18 U.S.C. 231, which makes it a crime to interfere with or impede law enforcement officers during a civil disorder.
The main practical effect of the Supreme Court’s ruling, lawyers who try these cases say, is that the Justice Department will face the task of having to resentence more than 100 people who have already been punished under the now-invalid interpretation of the obstruction law.
Some federal judges handling the cases have already adjusted. They have signaled that they are willing to increase the sentences defendants receive on crimes other than the obstruction count in order to make up for any losses in prison time.
Even as prosecutors have poured enormous time and energy into what are now more than 1,400 Jan. 6-related cases, the attack on the Capitol has moved to the center of this year’s presidential race as both Mr. Trump and President Biden have focused on the assault, albeit for very different reasons and from very different points of view.
Moreover, both candidates have made an issue of Mr. Trump’s indictments, ensuring that the federal charges he is facing in Washington related to his attempts to stay in power will be front and center as voters go to the polls.
Still, even though two of the four charges in Mr. Trump’s election case are based on the obstruction law, the indictment may emerge from the Supreme Court’s ruling largely unscathed.
That is because prosecutors have effectively accused him of tampering with documents through his plot to create false slates of electors claiming that he had won, in states that were actually won by Mr. Biden. That use of the obstruction charge would appear to be closer to the standard set by the Supreme Court.
The justices will have a much greater impact on Mr. Trump’s case when they decide next week whether he is immune from election interference charges because they arose from actions he took as president. That decision will be crucial in determining whether a jury will hear evidence that Mr. Trump tried to subvert the last election before voters consider returning him to power in the next one.
