Earlier this year in Fischer v. United States, the Supreme Court narrowed a federal obstruction law used against Jan. 6 defendants, overturning a ruling from the federal appeals court in Washington. That same appeals court just upheld a Jan. 6 defendant’s federal trespass conviction, setting up a potential appeal for the justices to curb that law, too.

Tuesday’s decision came in the case of Cowboys for Trump leader Couy Griffin, who was convicted in 2022 under the trespass law that bars people from knowingly entering or remaining in “any restricted building or grounds” without lawful authority. Such an area is defined under the law as “any posted, cordoned off, or otherwise restricted area” where a Secret Service protectee “is or will be temporarily visiting.”

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

But a divided three-judge appellate panel held Tuesday that “knowingly breaching the restricted area suffices, even without knowing the basis of the restriction — here, the presence of Vice President Pence at the Capitol on January 6 — which merely confirms that such trespasses are within Congress’s legislative authority.”

The two judges in the majority, Barack Obama appointee Cornelia Pillard and Bill Clinton appointee Judith Rogers, noted that a different reading “would impair the Secret Service’s ability to protect its charges.” They concluded that “[n]either the text nor the context of the statute supports that reading.”

Dissenting, Donald Trump appointee Gregory Katsas argued that the law puts a greater burden on the government than the majority thinks. He said that on top of proving Griffin’s knowledge that the Capitol grounds “were posted, cordoned off, or otherwise restricted,” prosecutors also had to prove that he knew Pence was present “when he entered or remained in those restricted grounds.”

Ultimately, Katsas’ opinion could carry the day — or at least help Griffin get his case to the justices. Indeed, in the Fischer case that narrowed Jan. 6 obstruction charges, Katsas dissented from the majority panel ruling that the Supreme Court overturned in June.

And in Griffin’s case, Katsas noted that federal prosecutors had secured over 470 convictions under the law and that, in all of them, “criminal liability may turn on whether the defendant had to know that Vice President Pence was present at the time of the trespass.” Katsas added that the trial judges in Washington “are deeply divided on that question; six have answered yes, while ten have answered no.”

Both the broad impact of an issue and division over it can lead to the Supreme Court stepping in.

The justices declined to take up a separate appeal from Griffin in March. That appeal related to him being barred from office after Jan. 6. He was barred from state office as opposed to federal office in the case of Trump, whom the high court cleared to run for president again despite the insurrection. But Griffin may have a better outcome if he petitions the justices to review his trespass conviction.    

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Jordan Rubin

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 BLN, he was a legal reporter for Bloomberg Law.