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The U.S. Supreme Court could upend more than 330 criminal cases and strike down the most potent weapon in the Department of Justice’s arsenal against January 6 protesters

The nation’s highest court on Dec. 13 took up a challenge to the felony the Justice Department uses most frequently to charge Jan. 6 defendants. The court granted certiorari to a petition of appeal from Joseph Fischer, 57, a Jan. 6 defendant from Jonestown, Pennsylvania.
Fischer is among the hundreds of Jan. 6 defendants charged with corruptly obstructing an “official proceeding”—the joint session of Congress that met to tally Electoral College votes and hear objections from lawmakers.
What put the Jan. 6 protesters in the sights of the DOJ is the unprecedented use of a 20-year-old evidence-tampering statute to prosecute them for delaying the counting of votes from the 2020 presidential election.
The statute reads:

Whoever corruptly
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

The charge has been levied in federal court against high-profile defendants—including former President Donald Trump, Oath Keepers founder Stewart Rhodes, and former Proud Boys chairman Henry “Enrique” Tarrio—and hundreds of lesser-known Jan. 6 figures.
Defendants who came to the U.S. Capitol well after Congress was evacuated on Jan. 6 were nevertheless charged with obstruction of an official proceeding. A number argued unsuccessfully at trial that they could not have obstructed Congress because they were not present in the Capitol when lawmakers left the House and Senate chambers.
Defense attorneys have said the maximum 20-year prison term that comes with a violation of 18 U.S. Code §1512(c)(2) puts tremendous pressure on defendants to take a DOJ plea offer rather than go to trial.
Critics of the DOJ say prosecutors’ use of §1512 has weaponized a statute never intended to address political protests or First Amendment activities. One legal researcher called it “dangerous.”
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