Despite his wife’s backing of Donald Trump’s effort to subvert the 2020 presidential election, Supreme Court Justice Clarence Thomas has ignored calls to recuse himself from recent Jan. 6-related appeals. Perhaps it’s unsurprising, then, that his questioning Tuesday in such a case appeared to downplay the insurrection.
At the oral arguments in an appeal over an obstruction law used against many Jan. 6 rioters, Thomas told the Justice Department’s lawyer, Solicitor General Elizabeth Prelogar, that “there have been many violent protests that have interfered with proceedings.” He then wondered: “Has the government applied this provision to other protests in the past?”
Prelogar conceded that she couldn’t give an example of enforcing the obstruction law “in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one, from occurring with all of the elements like intent to obstruct, knowledge of the proceeding, having the corruptly mens rea, but that’s just because I’m not aware of that circumstance ever happening prior to January 6th.”
That is, to the extent that the use of this law has been unique, that’s owing to the uniqueness (in a bad way) of Jan. 6.
That is, to the extent that the use of this law has been unique, that’s owing to the uniqueness (in a bad way) of Jan. 6.
The outcome of the appeal, in the case of alleged Capitol rioter Joseph Fischer, could upend scores of Jan. 6 cases prosecuted with the widely used obstruction law. (Fischer, who has pleaded not guilty, has yet to stand trial.) Notably, that same law surfaces in two of Trump’s four counts in his federal election interference indictment. So the former president, as well as special counsel Jack Smith, are eagerly awaiting the outcome of the Supreme Court’s decision in Fischer’s case, expected by late June. Trump’s immunity appeal in the election interference case is set to be heard by the justices next week, on April 25. Thomas hasn’t recused himself from that one, either. We’ll see whether the justice also questions the government lawyer in that case about the unprecedented nature of the prosecution against the former president — as opposed to the defendant’s unprecedented alleged actions that triggered the prosecution. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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