Did the U.S. Solicitor General Mislead SCOTUS?

Elizabeth Prelogar, Joe Biden's appointed solicitor general, attempted to downplay prison sentences associated with J6ers convicted of 1512(c)(2) during oral arguments. But did she tell the truth?

The U.S. Supreme Court acted as a bit of a party crasher this week just as Democrats and the corporate media were celebrating the start of Donald Trump’s first criminal trial in New York City.

While jury selection got underway in Judge Juan Merchan’s Manhattan courtroom, oral arguments began Tuesday morning at SCOTUS in Joseph Fischer vs. USA related to the Department of Justice’s use of 18 U.S.C. § 1512(c)(2)—obstruction of an official proceeding—in its ongoing criminal prosecution of January 6 protesters. Fischer is one of roughly 350 J6 defendants charged with the post-Enron records-destroying statute weaponized by Joe Biden’s DOJ to punish Americans who protested Biden’s election that day. 

The law also represents half of Special Counsel Jack Smith’s four-count indictment against the former president related to the events of January 6.

Some of the same commentators popping champagne corks at the thought of Trump being sent to Rikers Island openly fretted that J6ers could go free after a majority of justices expressed skeptism at the government’s position during the hearing. Wondering aloud how Fischer even made it to the Supreme Court—never a Constitution handy on the CNN set when you need one—Dana Bash fearfully asked one legal expert about J6ers ensnared in 1512(c)(2) convictions, “could they be let out of jail?”

After more than three years, the DOJ’s unprecedented use of the corporate fraud statute to prosecute political protesters received overdue scrutiny by the highest court. The April 16 hearing got off to a somewhat rocky start for Jeffrey Green, the attorney representing Fischer, as justices peppered him with questions about the connection between two subsections of the statute. 

U.S. Solicitor General Elizabeth Prelogar, who represented the government, didn’t fare much better. A former law clerk for both Attorney General Merrick Garland and Supreme Court Justice Elena Kagan, Prelogar did little to ease concerns over the government’s broad interpretation of 1512(c)(2) while admitting the statute has been and will continue to be selectively used against Jan 6 protesters and not other demonstrators who engage in similar conduct—particularly those aligned with Democratic Party interests.

But in her zeal to downplay harsh prison sentences often associated with a 1512(c)(2) conviction in Jan 6 cases—a few justices questioned her about the severity of a 20-year maximum sentence for interrupting a government function—Prelogar might have fatally damaged the credibility of her case; she misrepresented, or at the very least misstated, the government’s handling of prison sentences for J6ers convicted of 1512(c)(2).

Covering DOJ’s Tracks

Noting that Fischer was charged with six other offenses including assault of a police officer, Justice Brett Kavanaugh asked Prelogar if 1512(c)(2) would represent the count with the longest possible prison time compared to the other charges.

You can hear the exchange here:

According to current DOJ data, 1512(c)(2) represents the only felony in 55 J6 cases; other counts commonly include nonviolent misdemeanors such as parading in the Capitol or disorderly conduct. My analysis shows that the average sentence for those 55 defendants is 26 months, so Prelogar is correct.

But Prelogar failed to tell the whole story. Based on further analysis of the DOJ's J6 sentencing chart, prosecutors have asked for an average of 40 months in prison in those same 55 cases. For a handful of defendants, prosecutors recommended prison terms as long as 78 months. 

Without judges who, for the most part, refused to acquiesce to the government’s excessive prison recommendations, a defendant convicted of 1512(c)(2) and other misdemeanors would be behind bars for over a year longer than what Prelogar represented.

So that renders her statement that “there's no reasonable argument to be made that the statutory maximum here is driving anything with respect to sentencing” demonstrably false. In fact, the DOJ routinely mentions in sentencing memos how “the Defendant faces a maximum sentence of 20 years’ imprisonment.” 

Further, prosecutors have asked for—and been granted by the courts—pretrial detention for several individuals charged with 1512(c)(2) and no other violent offense. In the case of Timothy Hale, a Naval reservist on January 6, the DOJ sought to keep Hale incarcerated awaiting trial even though 1512(c)(2) represented his most serious charge. “Defendant poses a substantial risk of danger to the community if he is released,” prosecutors wrote in a March 2021 filing. “Having sworn a duty to uphold and protect the Constitution against all enemies, foreign or domestic, Defendant literally abandoned his post to participate in an insurrection with the stated intent of obstructing the certification of the Electoral College vote.” (Judge Timothy McFadden granted DOJ’s request; Hale was kept in pretrial detention at the D.C. Gulag until his May 2022 trial.)

A few J6 defendants called out Prelogar’s dishonesty on X/Twitter:

DOJ Ultimately Responsible for Unlawful Sentencing Enhancement

Prelogar also distanced the DOJ from a sentencing enhancement tied to 1512(c)(2) convictions. She mentioned the Brock case—referring to Larry Brock, a former Navy lieutenant colonel from Texas convicted in 2022 on 1512(c)(2) and five misdemeanors. In dozens of 1512(c)(2) convictions including Brock’s, federal judges extended prison terms several months by applying an “interfering in the administration of justice” enhancement at sentencing.

Last month, the court of appeals in Washington vacated Brock’s sentence after a three-judge panel concluded the enhancement was unlawful because it pertains to judicial proceedings.

“We hold that the ‘administration of justice’ enhancement does not apply to interference with the legislative process of certifying electoral votes,” the panel wrote on March 1. “It is textually indisputable that the Guidelines confine the...enhancement to those offenses that interfere with the ‘administration of justice,’ not the administration of everything Congress does, or the administration of government, or the administration of all laws broadly.”

This has prompted a wave of motions by defendants seeking relief.

But again, Prelogar’s hands-off approach in her response to Kavanaugh didn’t give proper credit to the party responsible for suggesting the enhancement in the first place: the Department of Justice. Prosecutors asked judges to apply the enhancement as guilty verdicts and plea deals poured in on the 1512(c)(2) charge.

In fact, the DOJ opposed Brock’s appeal of the enhancement: “[The] Sentencing Commission intended the enhancements to reach the type of dangerous and violent conduct that occurred on January 6. There is no sound basis for assigning a significantly higher offense level to someone who violently interferes with a court proceeding than someone who violently interferes with a congressional proceeding,” U.S. Attorney for the District of Columbia Matthew Graves wrote in an August 2023 brief.

The appellate court disagreed.

But the DOJ is wasting no time conceiving other ways to boost prison sentences for 1512(c)(2) convictions. While she attempted to convince Kavanaugh prison sentences will be lower without the administration of justice enhancement, Prelogar did not disclose that the DOJ recently suggested another “upward variance” for judges to consider.

Calling January 6 a “uniquely horrifying event” and describing the appellate court’s decision in Brock a win in a “technical dispute,” Graves’ office just asked a judge to add more prison time for four 1512(c)(2) defendants because they caused “a significant disruption of a governmental function,” another provision in federal sentencing guidance.

“[The] obstruction of the Electoral College certification on January 6, 2021, is the type of unusual circumstance that the Sentencing Commission could not have anticipated and that warrants an upward departure. The assault on the Capitol endangered the safety of the public, police, and elected officials in a way not already captured by the Defendants’ Guidelines ranges, so a departure would be appropriate,” Graves wrote.

The justices certainly have a lot to consider before deciding whether to overturn how the DOJ and federal courts have applied 1512(c)(2) in Jan 6 cases. Hopefully the justices also will review what appears to be Prelogar’s subterfuge on how the DOJ handles sentencing requests in these matters.