The Supreme Court last month agreed to review the case of Jan. 6 defendant Joseph Fischer, who says he was wrongly charged with a felony under a federal obstruction statute that has nothing to do with his conduct during the 2021 protest at the Capitol.
The outcome of the case could have implications for former President Donald Trump’s election interference case brought by special counsel Jack Smith. The 45th president is charged under the same law, 18 U.S. Code 1512(c)(2), which has to do with the destruction of documents.
A ruling in Fischer’s favor would also have implications for the hundreds of Jan. 6 defendants charged with the same crime, including Edward Lang and Garret Miller, who brought similar appeals.
The legal provision in question was enacted as part of the 2002 Sarbanes-Oxley Act, a bill passed following the Enron accounting scandal.
“The Act adopts tough new provisions to deter and punish corporate and accounting fraud and corruption, ensure justice for wrongdoers, and protect the interests of workers and shareholders,” then-President George W. Bush said in a statement at the time.
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Fischer and the other defendants are arguing that Sarbanes-Oxley has nothing to do with their actions on Jan. 6, 2021.
The Department of Justice charged Fischer, a Pennsylvania resident, with obstruction of an official proceeding and aiding and abetting under Section 1512(c)(2), along with lesser offenses such as assault, disorderly conduct and entering a restricted space.
The reason the DOJ is trying to fit Fischer, Trump and others into the Sarbanes-Oxley provision is that it is a felony, with potential jail time of up to 20 years.
U.S. District Judge Carl Nichols dismissed the 1512(c)(2) charges against Fischer in March 2022, but in April 2023, the U.S. Court of Appeals for the District of Columbia Circuit sided with the DOJ, reinstating the charges in a 2-1 vote.
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Nichols concluded that the statute has to do with the destruction of documents or records in order to impede an official proceeding, as Section 1 makes clear. Since the DOJ did not accuse Fischer of taking such action, the statute did not apply.
However, the circuit court found that the language of Section 2 — “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” — could be separated from the context of document destruction and applied to the Jan. 6 defendants.
Jim Burling of the Pacific Legal Foundation, a public interest law firm, told The Epoch Times, “The idea that [1512(c)] Section 1 is untethered from Section 2 is rather creative, and I don’t think it’s going to hold water.”
“I just don’t think the Supreme Court is going to go along with that,” he added.
Burling contended that if these Jan. 6 convictions are allowed to stand, it would mean that the hundreds of people who disrupted Justice Brett Kavanaugh’s confirmation hearings in the Capitol complex in 2018 could also have been charged with 1512(c)(2) offenses.
Capitol Police arrested over 200 protesters, 177 of whom had protested in the hearing room itself, Reuters reported at the time. In other words, they were very disruptive to the proceedings.
Most of those taken into custody were charged with disorderly conduct, fined $35 and then released.
“They didn’t charge anybody at the Kavanaugh hearings … [under Section 1512(c)(2)] because that would be a gross miscarriage of justice,” Burling said.
“We have protesters that try to break in and shout and make noise and that kind of thing [all the time]. Are we going to be charging everybody who protests government with [a crime that could lead to] 20 years [in prison]?” he asked.
An amicus brief filed in support of Fischer’s appeal to the Supreme Court by America’s Future, among other groups, argued the reason the DOJ turned to Section 1512 instead of the felony charge of insurrection is that it could not prove the latter in court.
“[The circuit court] ignored any concerns about how its reading of Section 1512(c)(2) would have a chilling effect on speech, petition, and assembly,” the brief stated.
“The Court of Appeals’ interpretation of § 1512 bears an eerie resemblance to Woodrow Wilson’s infamous ‘Sedition Act’ of 1917,” the groups argued, noting that that law made it illegal to “convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.”
“That sweeping language effectively criminalized most forms of anti-war speech,” the brief said.
The groups also cited the Supreme Court’s ruling in Terminiello v. Chicago (1949), in which the justices said, “A function of free speech under our system of government is to invite dispute.
“It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. … There is no room under our Constitution for a more restrictive view.”
It will now be up to the Supreme Court to decide if Section 1512 applies to the Jan. 6 defendants. A ruling in the case may not come until the end of June, according to NBC News.
Journalist Julie Kelly, who has covered Jan. 6 cases closely, noted the implications for Smith’s election interference case against Trump.
“This is a day so many J6ers have been waiting for. Lives destroyed, people rotting in prison. All [because] [President Joe] Biden’s DOJ abused a post-Enron evidence tampering statute,” she posted on X after the Supreme Court agreed to hear Fischer’s case.
This is a day so many J6ers have been waiting for.
Lives destroyed, people rotting in prison. All bc Biden’s DOJ abused a post-Enron evidence tampering statute.
And what will Jack Smith do now? 2 of 4 counts in his indictment in jeopardy. This is potentially more impactful than…
— Julie Kelly 🇺🇸 (@julie_kelly2) December 13, 2023
“And what will Jack Smith do now? 2 of 4 counts in his indictment in jeopardy,” Kelly said. Counts two and three of Smith’s indictment against Trump in the election interference case have to do with Section 1512.
So, as Kelly pointed out, a good portion of Smith’s case appears largely up in the air at this point.
And hundreds of Jan. 6 defendants may see their convictions or plea deals overturned if the Supreme Court finds that the DOJ misapplied Sarbanes-Oxley to their cases.
