"A Red Flag": Is SCOTUS Poised to Overturn Key J6 Felony Count?

If the highest court determines the Department of Justice and judges misapplied a corporate fraud statute against hundreds of January 6 defendants, the repercussions will be felt for years to come.

Photo by Bill Mason on Unsplash

An order published by the Supreme Court on December 13 represented a moment hundreds of January 6 defendants and their loved ones had been waiting for: the highest court granted a writ of certiorari petition in the case of Fischer v. USA.

In a nutshell, after more than two years of litigation before federal judges in Washington, SCOTUS will review the Department of Justice’s use of 1512(c)(2), obstruction of an official proceeding, in January 6 cases. A “splintered” 2-1 appellate court ruling issued in April just barely endorsed the DOJ’s unprecedented interpretation of the statute, passed in 2002 as part of the Sarbanes-Oxley Act in the aftermath of the Enron/Arthur Anderson accounting scandal.

Justices will review the appellate court’s muddy decision during oral arguments expected to take place in March or April. A final opinion should be announced before the court’s term ends in June.

The political world now waits with bated breath for the outcome. Not only does the obstruction count represent the most frequently charged felony in what the DOJ considers an act of domestic terrorism, two of four counts in Special Counsel Jack Smith’s indictment against Donald Trump involve 1512(c)(2).

If a majority of the justices conclude the DOJ misused the law, the Biden regime’s ongoing prosecution of January 6 will suffer a death blow. (At least four of nine agreed to grant cert, sending a signal the appellate court order is at risk.) And federal judges in Washington who willfully endorsed such intentional prosecutorial abuse will suffer a collective black eye, justifying calls for mass resignations and retirements.

The DOJ’s “Novel” Expansion of 1512(c)(2)

Immediately following the events of January 6, the government began charging those involved with obstruction of an official proceeding, representing the first time prosecutors weaponized the vaguely worded felony against political protesters. Jacob Chansley, the so-called “QAnon Shaman,” was charged with obstruction on January 11, 2021; since then, more than 320 defendants have been indicted on the same count.

During the early stages of the government’s investigation, federal judges in Washington, at the behest of prosecutors, denied release of individuals arrested for obstruction without any accompanying serious charge. Members of the Proud Boys and Oath Keepers were routinely ordered held without bond on the basis of the obstruction count and other minor nonviolent offenses that did not involve assaulting police or destroying property.

Chansley spent nearly eight months in solitary confinement before pleading guilty to obstruction in September 2021. (He was then sentenced to 41 months in prison.) Others languished in prison for more than a year until they accepted a plea offer or were convicted at trial.

Over the course of two years, dozens of defendants sought to get the charge dropped, generally arguing the language of the statute did not apply to their conduct. Under Title 18 of the U.S. criminal code, 1512(c)(2) reads as follows:

Whoever corruptly —

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

Controversy centered on the term “official proceeding” and whether the largely ceremonial act of counting electoral college votes on January 6 fit the definition. Some defendants pointed to the fact the law addressed destruction of evidence, not a temporary disruption of a session of Congress. Others emphasized the need to prove “corrupt” intent.

Despite the DOJ’s dubious interpretation of the statute, at least 15 judges upheld the charge in Jan 6 cases. Beryl Howell, who served as the chief judge of the district court in Washington until recently, denied a motion to dismiss the 1512(c)(2) count against two defendants in January 2022. Howell concluded the certification and objection process of January 6 was “very official” and that the government had appropriately applied the statute.

Only one judge, Carl Nichols, dropped the charge against three defendants including Joseph Fischer. A three-judge appellate court panel last spring, despite acknowledging the government’s “novel” use of 1512(c)(2) against Fischer and two others, nonetheless overturned Nichols’ order to dismiss the count in a confusing 2-1 decision—which the supremes will carefully analyze.

A Potential Black Mark for the DOJ and D.C. Courts

Howell now is coming to terms with the judicial disaster looming over E. Barrett Prettyman federal courthouse located in the shadow of the U.S. Capitol building. During a court hearing on Friday for a Jan 6 defendant charged with obstruction, Howell “warned of a possible backlog of cases involving the federal statute,” CBS News reported. She advised the prosecutor to seek a plea agreement on another count just to be on the safe side.

Howell further said that “fellow judges…have already come across requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge and are now asking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct.”

Defense attorneys for a handful of defendants quickly filed motions for release from custody or to delay sentencing. More filings are in the works, according to sources, and could overwhelm the court at the same time judges continue to deal with a nonstop deluge of new Jan 6 arrests and indictments as the total caseload exceeds 1,200 and counting.

One defense attorney told CBS News that the Supreme Court’s announcement represented “a red flag and a loud gong” that the DOJ is in for a major humiliation.

Too Late for So Many

But if the high court concludes the government abused the statute to criminalize political dissent, relief will come too late for more than 100 individuals already convicted of obstruction including at least 63 defendants sentenced to terms of imprisonment. According to an analysis by Declassified, at least three dozen await sentencing including a few held under pretrial detention orders.

Where will they go to get their time back? Their destroyed reputations and livelihoods? Their bankrupted finances? Their broken marriages and families and friendships? How will the loved ones of Matthew Perna, who committed suicide after learning the DOJ would seek years in prison after he pleaded guilty to obstruction, get him back?

The answer, of course, is they won’t.

“It is very encouraging that the court has decided to review the petition pertaining to the DOJ’s misappropriation of the felony,” Paul Hodgkins, a man from Tampa who was the first to plead guilty to obstruction in June 2021, told me by text shortly after the announcement. He was sentenced to eight months in jail. “I am hopeful that the justices will find that this is not applicable to arguable trespassing and that a sensible decision will be made to remove this charges that has been applied to so many cases from Jan. 6 including the case against President Donald Trump.”

One can only hope the justices do the right thing by overturning the appellate court decision and reprimanding those culpable for enabling such abuse of the system. Regardless of the outcome, Congress should fix the statute’s language to ensure reckless prosecutors and judges never try this again.

And perhaps consider how to punish the authorities who allowed this to happen in the first place.