Sen. Tom Cotton of Arkansas consistently has staked out a tough-on-crime stance during his time in the Senate, but he and other congressional Republicans have sided with the defendants in a Supreme Court case about the Jan. 6, 2021, attack on the Capitol.
The justices hear oral arguments Tuesday in a case from Joseph Fischer, who is challenging his charges related to Jan. 6 under a law that allows up to a 20-year prison sentence for people convicted of “corruptly” obstructing, influencing or impeding a proceeding before Congress.
A decision that sides with Fischer could upend hundreds of pending cases against Jan. 6 defendants — as well as the Washington-based federal criminal case against former President Donald Trump.
According to prosecutors, Fischer, a former police officer, entered the Capitol after the building had been broken into, charged a police line, assaulted officers and was removed about four minutes later.
Cotton and House Judiciary Chairman Jim Jordan of Ohio led a group of Republican members of Congress who filed a brief in the case that urges the justices to toss a specific charge against Fischer and others.
The group argues that the statute is being used for political prosecutions of Jan. 6 defendants, by bringing a charge carrying a 20-year sentence rather than a charge that carries a year or less that is frequently used against most protesters who disrupt Congress.
“If allowed to stand, the lower court’s decision will only reward and incentivize politically motivated uses of ill-fitting criminal statutes with harsh penalties,” Cotton’s brief said.
Elsewhere in his career, Cotton has advocated for tougher criminal sentencing and more aggressive prosecution of defendants. In response to an attack on Paul Pelosi, husband of former Speaker Nancy Pelosi, D-Calif., Cotton told CBS the “answer to all of these crimes is to get tough on crime and throw the book at these criminals.”
In 2022, he held up the confirmations of U.S. attorney nominees because he wanted the Justice Department to help defend law enforcement officers from lawsuits stemming from attacks on the federal court building in Portland, Ore., in 2020.
Cotton also wrote a controversial opinion article in The New York Times that year that called for the military to be dispatched to stop riots amid the cultural and racial turmoil after police killed George Floyd.
And Cotton led Republican opposition to the 2018 criminal sentencing overhaul law now known as the First Step Act, which was signed into law by Trump. He did not respond to a request for comment on the brief.
Intentional acts
In a sign of how the case at the Supreme Court centers on a more specific legal question, Sen. Mike Lee of Utah, a supporter of that sentencing law overhaul, also signed on to the Republican brief.
The brief fits into broader Republican responses to Jan. 6, including allegations that the federal government has treated those defendants more harshly than others. One of the signatories, Rep. Marjorie Taylor Greene, R-Ga., has frequently claimed that defendants received harsh treatments and led a lawmaker visit last year to the D.C. jail where Jan. 6 defendants have been held.
Democrats have said their Republican colleagues downplayed the attack on the Capitol, which was the first disruption of the peaceful transfer of power in the nation’s history.
The Biden administration has defended the use of the statute, arguing that Fischer disrupted the constitutionally mandated counting of electoral votes when he entered the Capitol during the attack.
The government’s brief at the Supreme Court pointed out that Fischer’s messages before Jan. 6 showed he knew he could be arrested and mentioned the possibility of dragging Democrats out of the Capitol for a “mob trial,” indicating that he intended to disrupt the proceeding.
The law has a “catch-all” provision to make certain that intentional acts to disrupt a proceeding would be punished, no matter how creative a defendant got, the DOJ argued.
Congress passed the law to “address the larger problem the Enron scandal brought to light — namely, the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction,” the DOJ said.
In Fischer’s case, the trial judge initially dismissed the charge, finding that the statute should not apply to rioters who stormed the Capitol and disrupted the Electoral College count. The U.S. Court of Appeals for the D.C. Circuit reversed the judge, holding in a 2-1 decision that the statute could apply to congressional proceedings, not just documents.
Cotton and the other Republicans argue that the Biden administration’s use of the charge against Trump is a sign of its danger as a tool of political prosecutions.
Everyday lobbying activity and outreach to members of Congress could be considered felonious, the brief said.
“It criminalizes political conduct and grants the Department of Justice nearly unfettered discretion to prosecute Americans based on the perceived morality of their political beliefs,” Cotton’s brief said.
The Republicans’ brief argued that the Biden administration charged hundreds of rioters on Jan. 6 but has not given the same treatment to others who disrupted Congress. The brief pointed to the treatment of Rep. Jamaal Bowman, D-N.Y., who received a “slap on the wrist” after using a fire alarm in a Capitol office building and prompting its evacuation last year.
Bowman later pleaded guilty to a misdemeanor, paid a $1,000 fine and was censured by the House.
“Thus, under the government’s view, any attempt to affect any legislative or executive proceedings in a way that benefits President Trump could inherently qualify as a felony subject to a maximum twenty-year imprisonment,” the brief said.
The Cotton brief also pointed to numerous other examples where protesters interrupted committee hearings, both in Washington and New York, where they were not charged with violating the statute.
However, those examples involved committee hearings rather than the full Congress and did not involve violent felonies or evacuations as occurred on Jan. 6, 2021.
This report was corrected to reflect that the Portland, Ore., court attack took place in 2020, and that Cotton’s New York Times article was written in 2020. It was also corrected to reflect that the alarm pulled by Bowman evacuated a House office building.
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