Earlier this year, in Fischer v. United States, the Supreme Court restricted a federal obstruction law used against the Jan. 6 defendants and overturned a ruling by the federal appeals court in Washington. The same appeals court just upheld a defendant's Jan. 6 federal breach of the peace conviction, giving judges a possible appeal to curb that law as well.

Tuesday's decision came in the case of “Cowboys for Trump” leader Couy Griffin, who was convicted under the trespass law in 2022 The prohibits people from knowingly entering or remaining in “restricted buildings or grounds” without lawful authorization. Such an area is defined in the law as “any designated, cordoned off or otherwise restricted area” in which a person entitled to protection from the secret service “is or will be temporarily staying”.

Griffin, who was an elected county commissioner in New Mexico in January 2021, argued that people can only be convicted under this law if they know that the basis for the area restriction is to protect a Secret Service protectee.

But a three-judge appeals panel ruled Tuesday that “a knowing violation of the restricted area is sufficient, even without knowing the basis of the restriction – here, Vice President Pence's presence at the Capitol on January 6 – which merely confirms that it was Such violations are within the legislative authority of Congress.”

The two majority justices, Barack Obama appointee Cornelia Pillard and Bill Clinton appointee Judith Rogers, found that a different reading would “impair the Secret Service's ability to protect its charges.” They concluded that “neither the text nor the context of the law supports this reading.”

Donald Trump appointee Gregory Katsas disagreed, arguing that the law puts more of a burden on the government than the majority thinks. He said that in addition to proving that Griffin knew that the Capitol grounds were “marked, cordoned off or otherwise restricted,” prosecutors would also have to prove that he knew that Pence was present “when he did this.” entered or remained in restricted areas”.

Ultimately, Katsas' opinion could prevail – or at least help Griffin take his case to the judges. In fact, in the Fischer case, which limited obstruction charges on Jan. 6, Katsas contradicted the panel's majority decision, which the Supreme Court overturned in June.

And in the Griffin case, Katsas pointed out that federal prosecutors have secured over 470 convictions under the law and that in all cases, “criminal liability may depend on whether the defendant should have known that Vice President Pence was present at the time of the offense .” Katsas added that Washington justices “are deeply divided on the issue; six answered “yes” while ten answered “no.”

Both the far-reaching impact of an issue and the disagreement over it can lead to Supreme Court intervention.

The justices in March declined to accept a separate appeal from Griffin. This appeal related to his being disqualified from holding office after January 6th. In the case of Trump, whom the Supreme Court reinstated to run for president despite the insurrection, he was barred from holding state office, as opposed to federal office. But Griffin could get a better result if he asks the judge to review his trespassing conviction.

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