Dan McLaughlin of National Review Online shares his concerns about the U.S. solicitor general’s recent argument at the U.S. Supreme Court in a case involving January 6.
One thing about the argument really puzzled me: why Solicitor General Elizabeth Prelogar insisted upon distinguishing January 6 from other types of obstructive protests. I understand what, legally, she thought this would accomplish — but her approach runs the risk of being a disastrous misreading of the justices, and one that may have been driven more by the demands of her client than by a sound strategy for winning the case. …
… Here’s what surprised me in listening to the argument: By far Prelogar’s strongest rhetorical ground is to wrap herself in the plain language of (c)(2) – “it says what it says, and that’s the law, if you don’t like it, take that up with Congress” — and force her opponent to be the one arguing for an unwritten limitation on what the words mean. That’s a good place to be if you’re arguing before a textualist court, as this one is. It’s also a good place to be if you want to blunt concerns about prosecutorial overzealousness. … The law is the law is the law. …
… As she was pressed by the justices to dispel the appearance of an about-face or a Trump-only legal standard, she ended up undermining that argument by attempting to craft a standard with elements not found in the text, in order to insulate from Section 1512(c)(2) prosecutions the kinds of protests that the Biden administration might look upon with more favor. …
… So, what was Prelogar playing at? One might suspect that she was attempting to draw a distinction between the January 6 defendants and the people who have not been charged for the 2020 riots and other forms of left-wing civil disobedience ranging from interrupting congressional hearings to totally closing off access to the Portland federal courthouse.
