Guest Column: DOJ Dusts Off Civil War-Era Statute to Replace 1512(c)(2)

In the aftermath of SCOTUS ruling that overturned DOJ's most common felony against J6ers, the Department of Justice is using an antiquated law to keep punishing Trump supporters.

This is a guest post by David W. Fischer, a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A.  Most recently, Fischer defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.

If at first you don’t succeed, try, try again. 

That’s what Attorney General Merrick Garland’s Department of Justice (DOJ) is doing in their over-zealous prosecution of January 6 defendants.  In June, the Supreme Court in United States v. Fischer effectively nuked hundreds of “obstruction” of Congress charges against January 6 defendants, ruling that a post-Enron statute, 18 U.S.C. §1512, designed to punish document destruction, did not apply to a Capitol Hill protest “gone wild.” 

Nonetheless, obsessed with targeting Trump supporters, the DOJ is now charging multiple defendants with a Civil War-era statute—18 U.S.C. § 372—which punishes (up to 6 years in prison) those who intimidate “officers of the United States” from their posts.  The DOJ charges that J6ers conspired to chase Members of Congress from Capitol Hill in violation of Section 372.  Once again, the DOJ is unfairly prosecuting J6ers under a statute that does not apply to their conduct.

Title 18 U.S.C. § 372 punishes conspiracies “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed[.]”  The DOJ’s position is that Members of Congress hold the “offices” and are the “officers of the United States” that are covered by Section 372 and, accordingly, that J6ers can be prosecuted for allegedly causing their evacuation from Capitol Hill.  The DOJ is obviously wrong from both a historical and statutory construction standpoint. 

Enacted During the Civil War

In April 1861, confederate soldiers and sympathizers began forcibly seizing federal property within the southern and border states, chasing Union soldiers (Fort Sumpter), postmasters, custom house managers, and other federal officials from their posts.  Congress quickly responded by passing a series of laws that included what is now Section 372.  The obvious purpose of Section 372 was to protect “officers of the United States,” a term of art used in the Constitution, which applies to those individuals who hold federal jobs in the government thanks to the “Appointments Clause,” Art. II, § II, cl. II.  Members of Congress, however, are not constitutional “officers of the United States.” 

Members of Congress are not ‘Officers of the United States’ Under the Constitution

That Members of Congress are not “officers of the United States” is widely accepted among constitutional scholars.   As the Supreme Court observed in Bowsher v. Synar, which struck down portions of the 1980s Gramm-Rudman Act, “[N]o person who is an officer of the United States may serve as a Member of the Congress.”  Additionally, Members of Congress do not hold an “office, trust, or place of confidence” as that term is used in Section 372. 

In fact, this phrase is boilerplate language used in ubiquitous commissions given to presidential appointees, e.g., military officers, federal judges, etc., since the days of President George Washington.  Presidential commissions of “trust and confidence” are issued to “officers” pursuant to the Commissions Clause of the Constitution, Art. II, § 3, cl. 4 (“[The President] shall commission all the officers of the United States.”).  A Member of Congress does not receive a “commission” because he or she, unlike federal judges, executive branch appointees, and military officers, is not an “officer of the United States” and, hence, does not hold an “office, trust, or place confidence.”

The DOJ’s Counter-Argument is Baseless

 In court filings, the DOJ has not disputed that, under the Constitution, Members of Congress are not “officers of the United States.”  Instead, the DOJ argues that the 1861 Congress that enacted Section 372 used the term “officer of the United States” in a sense broader than the technical, constitutional definition.  According to the DOJ, because Members of Congress “hold office,” they are covered by Section 372’s use of the term “officers of the United States.”  This argument, however, is baseless. 

In fact, binding Supreme Court precedent from the 19th century holds that, when used in federal criminal statutes, the terms “office,” “officer,” and “officer of the United States,” absent unambiguous language to the contrary, refer to individuals who received positions via the Appointments Clause of the Constitution.

In one of those cases decided in 1878, United States v. Germaine, a surgeon hired by the Commissioner of Pensions was indicted for extortion while serving as, in the words of the statute, an “officer of the United States.”  Arguing for the indictment’s dismissal, the surgeon argued that because he was not appointed to his position pursuant to the Appointments Clause, he could not be convicted of violating a statute, which applied only to “officers of the United States.”  The Supreme Court agreed, ruling that absent unambiguous language to the contrary, the term “officer of the United States,” when used in criminal statutes, is limited to individuals appointed pursuant to the Appointments Clause.  In 1925, the Supreme Court in Steele v. United States summarized its numerous 19th century: “It is quite true that the words ‘officer of the United States,’ when employed in the statutes of the United States, is to be taken usually to have the limited constitutional meaning.”

Other Language in Section 372 Supports the J6ers

Section 372’s wording, moreover, proves that Members of Congress are not covered by the statute.  This statute punishes conspiracies aimed at preventing individuals “from accepting or holding any office, trust, or place of confidence under the United States[.]” Members of Congress, obviously, do not “accept” their positions—instead, they assume or take office.  A person “accepting” an “office, trust, or place of confidence” presupposes that someone offered that person position they accepted.

Members of Congress, by contrast, run for their offices and are elected by the voters. They do not “accept” government job “offers.” Accordingly, the phrase “office, trust, or place of confidence” in § 372—which lists stations that can be “accepted,” obviously does not include Members of Congress

Additionally, Congress’s use of the phrase “any person . . . holding any office . . . under the United States” in Section 372 further proves that Members of Congress are not covered by the statute’s language. This language, tellingly, appears to have been lifted from the Constitution’s “Ineligibility Clause,” pursuant to which Members of Congress are prohibited from simultaneously holding “offices”: “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  (Art. I, § 6, cl. 2).  It is beyond belief that Congress intended to include itself in Section 372 by using verbatim language from the Constitution’s Ineligibility Clause, which actually bars Members of Congress from holding “offices.”

More Abuses of the Law

One of the unfortunate aspects of the lawfare that has been unleashed against Donald Trump and his supporters has been the misuse of federal criminal statutes.  Section 372 was enacted with a very specific purpose:  to protect commissioned officers in charge of various federal outposts throughout the United States, especially in southern states.  Additionally, the Supreme Court has made clear that criminal statutes that use the terms “office” or “officer of the United States” do not apply to individuals other than commissioned, presidential appointees. 

As Members of Congress were not covered in Section 372’s language, the DOJ’s use of this statute against J6ers is a miscarriage of justice.