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Whitaker, who served as former President Trump’s acting attorney general for three months in 2018 after Jeff Sessions vacated the role at the president’s request, said he viewed the Jan. 6 obstruction charges as an overstep from the DOJ.
"I think the Supreme Court was absolutely right and that the Department of Justice has really been overly aggressive trying to get every possible charge stacked on in those cases," he said during a Saturday appearance on Fox News.
The Supreme Court ruled 6-3 on Friday that the DOJ could no longer use a gap left by an Enron-era law to charge Jan. 6 rioters with obstruction. The law made it a crime to "corruptly" obstruct, impede or interfere with official inquiries and investigations by Congress.
The justices did not rule on ideological lines, with Justice Ketanji Brown Jackson joining conservatives in the assent and Justice Amy Coney Barrett dissenting with the two remaining liberal justices.
In her dissent, Barrett took a jab at the fact that Congress likely did not have a riot in mind when writing the obstruction law.
"Who could blame Congress for that failure of imagination?" she said.
The ruling’s effects will vary, but for defendants who have yet to be convicted under an obstruction charge, the DOJ will be unable to make the case.
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