The Biden Justice Department was confronted about bias in the prosecution of January 6th defendants during a Supreme Court hearing.
Some of the court's conservative justices asked why charges for "obstruction of an official proceeding" should apply to January 6th participants but not others who engage in similar activity that obstructs the working of government.
Conservative Neil Gorsuch cited well-known cases in which liberals and Democrats have faced no repercussions for unruly and even violent behavior.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
The last question was a clear reference to Democrat Jamal Bowman (D-Ny.) pulling a fire alarm before a vote.
Biden's Solicitor General Elizabeth Prelogar asserted there is a difference between "meaningful" obstruction and less serious disruptions, but she struggled to draw the line clearly.
In a striking exchange, Gorsuch used the phrase "mostly peaceful protests," which conservatives adopted to mock efforts to downplay the violence that occurred after George Floyd's death in the summer of 2020.
“So a mostly peaceful protest … that actually obstructs and impedes an official proceeding for an indefinite period would not be covered?” Gorsuch asked.
The sharp questioning touched on a recurring complaint on the right: the selective enforcement of the law against conservatives, including Donald Trump.
Half of the January 6th case against Trump is based on a novel use of the obstruction statute, which carries a maximum sentence of 20 years in prison.
The defendant in the Supreme Court's case, Carl Fischer, argues the obstruction statute only applies to actions like destroying evidence.
Prelogar conceded that before January 6th, the obstruction statute had never been used against political protesters.
Hundreds of Januarys 6thers have been charged with the obstruction crime, leaving some Supreme Court justices skeptical of the sudden disparity.
Justice Clarence Thomas gently suggested that January 6th had been blown out of proportion or at least treated differently from similar events.
“There have been many violent protests that have interfered with proceedings,” Thomas said.
A decision in the Supreme Court case is expected in the summer.
