During oral arguments on Tuesday, April 16, Supreme Court Justices Neil Gorsuch and Samuel Alito exposed the Biden administration’s inexcusable practice of selective prosecution of protesters and rioters.
The case, Fischer v. United States, involved the contention by Pennsylvanian Joseph Fischer that the charges of “obstruct[ion of] … any official proceeding,” based on 18 U.S.C. § 1512(c), should not apply to his actions during the Jan. 6 Capitol riot. Fischer, who also was charged with assaulting police officers, is hardly a sympathetic figure. His claims that he wasn’t trying to obstruct or “impede” official (and important) congressional business, in the ordinary (nonlegal) sense of those words, are specious, but Gorsuch and Alito were interested in a point broader than Fischer’s particular circumstances.
More than 300, of nearly 1,400 total, other Jan. 6 defendants also have been charged with violating 18 U.S.C. § 1512(c). The two justices were puzzled by inconsistencies with which President Joe Biden’s appointees apply the law and with the wide scope they claim for it against disfavored defendants. Contrarily, when people on the Left, even including members of Congress, disrupt government proceedings, including by use of force, Biden and his officials look the other way.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify [as illegal obstruction]?” Gorsuch asked Biden’s solicitor general, Elizabeth Prelogar. “Would a heckler at today’s audience qualify or a heckler at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
Progressive Rep. Jamaal Bowman (D-NY) used the fire alarm stunt before a key spending vote last Sept. 30 and pleaded guilty to a misdemeanor charge carrying negligible penalties, but he bragged about not being charged for obstructing House proceedings even though that’s what he had obviously done when the alarm forced an evacuation. That mandatory mass exit interrupted attempts to ward off a government shutdown.
When Prelogar’s attempt to draw distinctions sounded weak and confusing, Gorsuch pressed further. Using the catchphrase favored by liberal news media and others about urban riots, even ones where police were injured, cars were burned, and federal courthouses were significantly damaged, resulting in trial relocations or delays, Gorsuch somewhat mockingly asked why “a mostly peaceful protest … that actually obstructs and impedes an official proceeding for an indefinite period would not be covered.”
Prelogar stumbled throughout the questioning, including when Alito picked up on similar themes. At one point, she said that for a criminal charge under the statute at issue, “we would have to have the evidence of intent.” Yet it is clear that at least a significant subset of the Jan. 6 rioters, while knowing they should not be in the Capitol, and thus being criminally liable for trespassing or disorderly conduct, were clueless about the congressional proceedings rather than intentionally trying to interfere with them. Yet this administration is throwing the book at scores of them.
The point isn’t that the Capitol rioters should avoid all penalties but that the Biden administration is choosing for ideological reasons when and how to apply laws against illicit protests.
Thus it is that in 2020, now-Vice President Kamala Harris advocated a yearlong continuation of the oft-violent post-George Floyd riots while supporting groups that wanted to bail murderers from prison. The Biden Justice Department tries to imprison innocent anti-abortion protesters while letting hundreds of attacks on pro-life centers go unpunished. It targets parents as domestic terrorists while refusing to enforce specific laws against demonstrations at the homes of Republican-appointed Supreme Court justices. Examples of double standards are almost countless.
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Not all involve the charge of “obstruct[ing]” a “proceeding,” but the trend is clear. In this administration, riots and obstructive protests that support leftist causes or narratives are met with leniency, while demonstrations by conservatives, even noninvasive ones, are penalized severely.
None of this is to say how the Supreme Court should rule on this case and this law. It is to say, though, that Gorsuch and Alito revealed the administration’s hypocrisy and unequal justice, unobstructed, for all the world to see.
