John,

For those of us at CREW who went to the Supreme Court in February for the oral arguments in our 14th Amendment case, Trump v. Anderson, this week’s Supreme Court arguments brought a sense of déjà vu.

On Tuesday, the Court heard arguments in Fischer v. United States to determine whether January 6th insurrectionists can be charged with obstructing an official proceeding. More than 300 insurrectionists were charged with violating that statute, with many already having been found guilty and sentenced.

In February, we went to the Supreme Court to enforce Donald Trump’s disqualification from the ballot. In March, the Court swiftly ruled to let Trump off the hook on a technicality, saying that states don’t have the power to enforce the disqualification of federal candidates.

Here’s why this feels like February all over again:

• Accountability for Donald Trump is on the line. Trump is one of the insurrectionists who was charged with obstructing an official proceeding in the federal election interference case. Trump’s charges aren’t before the Court, but this case may impact them.
• Clarence Thomas heard a case about January 6th, despite his wife’s involvement. Thomas has a duty to avoid the appearance of conflicts of interest, and given Ginni Thomas’s support for the Big Lie there’s a case to be made that he should have recused.
• Justices minimized the gravity of the insurrection. For example, Clarence Thomas asked whether there were other examples of prosecuting protesters for obstructing an official proceeding, ignoring the fact that the January 6th insurrection was completely unprecedented.

In yet another parallel to our case in February, if you read the text of the law, it seems to clearly apply. As the solicitor general said before the Court: “Many crimes occurred [on January 6th], but in plain English, the fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress’s work in that official proceeding.”

So the question is: does the law mean what it says?

As Vox noted, “It appears, after Tuesday’s arguments, that a majority of the justices will side with the insurrectionists — though it is far from clear how those justices will justify such an outcome.”

Again, that sounds like Trump v. Anderson. It was clear that the Court was looking for a way to avoid the issue. But deciding exactly how was the problem.

The Court is hearing Trump’s bid for total immunity next week, which will give us more of a sense of what it thinks about laws that should hold insurrectionists accountable.

In both of these cases, the stakes are incredibly high. CREW will continue to do everything in our power to call attention to the ethical and legal issues at play and fight for accountability for January 6th.

If you can, please consider making a donation today to support that work. →

Thank you,

Adam Rappaport
General Counsel
CREW