Breaking Down the Supreme Court’s Jan. 6 Obstruction Case

Now to the Supreme Court where justices Tuesday trying to figure out if a law was being stretched too far. They lingered at times on a single word.

What happened on January 6th was very, very serious. But we need to find out what are the outer reaches of this statute under your interpretation.

Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify?

It seems to me there are two choices here, and you could read this as otherwise obstructs a proceeding or otherwise spoils evidence.

And there’s the word, that word otherwise has particular significance in the case. Back in the early 2000s, Congress passed a bill making it a crime to tamper with a record or otherwise impede an official proceeding. The court must now decide if the Justice Department correctly applied the law while prosecuting the attack on the Capitol.

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Dozens of January 6th defendants have already pleaded guilty to obstructing an official proceeding. Former President Trump’s lawyers are also paying very close attention. Special counsel Jack Smith cited the same statute in his four count indictment accusing Trump of election interference. Trump denies wrongdoing.

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CBS News legal contributor and Loyola Law School Professor Jessica Levinson joins me now. Jessica, what are the … help us understand the dueling interpretations of the federal statute and why otherwise is an important word.

I thought that intro was fantastic, and I thought that the graphic with Justice Kagan really explains the difference here between what the judges are … the justices are trying to determine in terms of the meaning of this word. So does it mean, does otherwise mean that there can be different ways to tamper with a record, to tamper with physical evidence? Or does otherwise mean there are other ways other than tampering with a record and physical evidence that you can obstruct a proceeding?

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Door number one is really where the conservative justices are going, and they’re saying, “Look, this all has to be hooked to the destruction of records, to witness tampering, to the CEO who’s shredding documents while the Feds are at the door.” As you said, this is a post-Enron era white collar law that is meant to really prevent malfeasance from CEOs and other similarly situated people. And what the justices are trying to do is say, “Okay, well, that may be the original intent behind the statute, but let’s look at its meaning. Let’s look at the text and let’s see if it can apply in this new set of circumstances that, let’s be honest, Congress would not have envisioned when it drafted the text of the statute.”

Does this come up a lot? Is this a case where the plain meaning of obstructing something would mean to get in the way of it? Well, that seems obvious. But the plain meaning of something is not what’s at issue, right? It’s the meaning of what the actual language of the law that was used to make the prosecution what it meant and what it means. And that’s got to be specific regardless of what you and I might think in a colloquial way would mean obstructing a proceeding.

Yeah. This is straight up law school statutory interpretation. So you’re exactly right to focus on the word otherwise, because we’re trying to look at all the words in the statute and see how they fit together. They’re different puzzle pieces. And so does otherwise create this new category, meaning you can obstruct a proceeding and it can be a proceeding like counting up electoral college votes and certifying those electoral college votes? Or does it really have to be hooked to the first part of the statute that talks about obstruction and talks about, again, the destruction of records, documents, evidence? So it’s looking at the words in the statute and trying to determine can they fit into, again, this new scenario.

14 federal judges in the DC Circuit court agreed with the Justice Department’s view of the law, which is to say that otherwise allows room for prosecutions that are not specifically about records. But some of the Supreme Court justices, as you mentioned, the conservatives were skeptical. Is that skepticism based just on the text or is there a more philosophical way in which they do their statutory interpretation that’s at play here?

Well, I think it’s a little bit of both. What they would say is we all do statutory interpretation the way we’re supposed to do it. We look at the plain language, we look at the legislative intent, we look at the structure of the statute itself, and we make a determination that is completely divorced of political affiliation, political ideology.

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But when it comes to this division that we see, I think it’s more of a, and I know I’m going to get flack for this, but legal ideology in the sense that, John, to your question, we have the conservative justices I think being very leery of two things. One, let’s expand out statutory language. And two, let’s take the Department of Justice’s word for it that it will not use the statute to, as you heard a lot during oral arguments today, prosecute peaceful protests that might interrupt a trial proceeding for instance.

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You see the liberals much more comfortable with those two things, more comfortable reading the language more broadly and more comfortable saying, “I’m looking at the past. The DOJs never used it in that situation before. I don’t think they’ll use it in that situation in the future.”

Jessica Levinson, great as always. Thank you.