The Supreme Court might be poised to give a gift to January 6 rioters, and Donald Trump by extension. 

• The Supreme Court’s Conservative majority seems to be raring to give the ghouls who stormed the capitol on January 6 a handout. Since the riot in 2021, hundreds of January 6 protestors have been charged using a federal obstruction law for attempting to obstruct an official government proceeding—in this case the certification of the 2020 election results. 

• Justice Clarence Thomas returned from an unexplained absence on Monday to wreak the specific kind of conservative havoc for which he is known, implying that January 6 protesters are being unfairly singled-out. He asked, “There have been many violent protests that have interfered with proceedings…Has the government applied this provision to other protests?” It should be noted that Thomas once went a full decade without asking a single question from the bench, so it’s, uh, interesting that he’s choosing this case that could possibly benefit his buddy disgraced former president Donald Trump to be so active and inquisitive. Thomas’s wife Ginny was herself a participant in behind-the-scenes Trump administration efforts to overturn the 2020 election results. Call me crazy but that seems relevant!

• Justice Sonia Sotomayor replied to Thomas’s “question” by saying “We’ve never had a situation before…like this with people attempting to stop a proceeding violently.” The law in question is a provision of the Sarbanes-Oxley Act of 2002, which contains a broad catchall provision that makes it a crime to corruptly obstruct, influence, or impede any official proceeding. Sounds tailor-made for January 6, right? Not according to the Court’s conservative justices. Chief Justice John Roberts said the catchall provision must be read in context. Because the original law had to do with altering evidence, and none of the January 6 defendants are accused of that, he said the provision does not apply. Why a “catchall provision” would be interpreted so narrowly and tethered to the previous clause had some of the liberal justices scratching their heads. Justice Neil Gorsuch—always one to ask questions/big wind-bag—asked: “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?”

If the defendant in this case, Joseph Fischer, prevails, the decision could have major consequences. 

• As Melissa Murray put it on Monday’s episode of Strict Scrutiny, the case has wide-ranging implications “not only for Fischer and other rank and file January 6th rioters who have been charged under the statute, but…for the federal case against Donald Trump. Because if Defendant Fischer prevails here, Defendant Trump will see two of the four counts against him in the federal January 6th indictment evaporate.” 

• But the effect of a ruling rejecting the use of the catchall provision remains hard to predict. Most January 6 defendants have not been charged for the offense in question, and those who have, face other charges as well. In Joseph Fischer’s case, he faces six other charges apart from obstruction. Justice Department Special Counsel Jack Smith brought the obstruction charge against Donald Trump, but he has said that Trump’s conduct could be considered a crime even under a narrow reading of the Sarbanes-Oxley Act.