The Supreme Court Can Right an Egregious Wrong in Jan 6 Cases. Will It?

Three years after Joe Biden's Department of Justice weaponized a post-Enron statute to punish more than 330 J6ers, the Supreme Court this week will scrutinize the DOJ's brazen abuse of the law.

In July 2023, Joshua Youngerman was arrested in California on five misdemeanors for his participation in the events of January 6. According to charging documents, Youngerman entered the Capitol at 2:37 p.m.—20 minutes after the House went into recess amid the escalating chaos—through an open door as Capitol Police stood by. He exited through the same door two minutes later.

But just last week, U.S. Attorney for the District of Columbia Matthew Graves added another charge to Youngerman’s case: 18 U.S.C. § 1512(c)(2), obstruction of an official proceeding. Youngerman is one of more than 330 J6ers charged with the evidence-destroying statute passed in the wake of the Enron-Arthur Anderson accounting scandal that Joe Biden’s Justice Department has weaponized to punish Americans who protested Biden’s election that afternoon. The count also is included in both of Special Counsel Jack Smith’s indictments against Donald Trump.

Graves’ decision to indict Youngerman now is a stunning act of hubris and defiance. Why? Because the Supreme Court will hear oral arguments this Tuesday in Joseph Fischer v. USA, which challenges the government’s interpretation of the obstruction count in Jan 6 cases. 

Many legal and court observers expect the court to wholly or partially overturn how the DOJ has applied the law over the past three years in what Graves calls the “Capitol Siege” investigation. (I have several background pieces on Fischer including here and here.)

The statute reads:

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.

By continuing to bring the charge, Graves is thumbing his nose at the highest court as I explained here. The Joe Biden appointee responsible for dusting off rarely used criminal statutes such as seditious conspiracy and seeking excessive sentences including terrorism enhancements for 1512(c)(2) defendants refuses to back down.

He even opposes the early release of defendants currently behind bars on 1512(c)(2) convictions—at least 100 were ordered to prison on the charge—pending a decision in Fischer. Graves outrageously claims the individuals pose a threat to society and might engage in political violence similar to what happened for a few hours on January 6 if they are released.

Lower Courts Worry About Optics Instead of Justice

A reversal in Fischer would represent a long overdue humiliation for Biden’s DOJ but the department’s prosecutorial experiment had the support of more than a dozen judges on the D.C. circuit court. Rather than express any contrition for their role in turning otherwise nonviolent protesters into lifetime felons based on politicized legal reasoning, judges appear more worried about the optics of a reversal in Fischer.

Noting that the Supreme Court seems poised to “read [1512(c)(2)] pretty strictly,” Judge Thomas Hogan, who handled at least 22 J6 cases including two obstruction cases before going on inactive status last year, fretted about the political ramifications of a smackdown by SCOTUS. “It would have a devastating effect on the prosecution side,” Hogan told FISAgate architect Mary McCord during a recent event at Georgetown. “We are now facing this problem, along with all the other problems we see now being advertised about the individuals being hostages.”

In other words: If SCOTUS does what is expected and in the process denounces prosecutors and judges for abusing an obstruction statute in order to imprison supporters of Donald Trump, the decision will support claims by Trump and others that J6ers are “political hostages.”

And that will make the prosecutors and judges look bad.

So sorry, Judge Hogan.

Hogan is not alone in allowing the charge to stand. Here is a list of his colleagues who also refused to dismiss the count when petitioned by defendants to do so:

Judge Rudolph Contreras

Judge Trevor McFadden

Judge Beryl Howell (former chief judge)

Judge John Bates

Judge Amit Mehta

Judge Dabny Friedrich

Judge Royce Lamberth

Judge Richard Leon

Judge Colleen Kollar-Kotelly

Judge Amy Berman Jackson

Judge Timothy Kelly

Judge Randolph Moss

Judge James Boasberg (now chief judge)

Judge Paul Friedman

Judge Christopher Cooper

Judge Carl Nichols is the only district court judge who dismissed the obstruction count against three defendants including Joseph Fischer. The DOJ appealed Nichols’ ruling, which resulted in the case being brought to the Supreme Court.

In addition to the district court judges who endorsed the use of 1512(c)(2), three D.C. circuit court judges—Judges Florence Pan, Justin Walker, and Cornelia Pillard—did so on appeal.

Selectively Applied Only in J6 Cases

While the court on Tuesday undoubtedly will spend most of the time grilling both sides about the statute’s vague language, one justice should confront Solicitor General Elizabeth Prelogar, who will represent the government, this question: Has the DOJ recently charged other protesters for obstructing, impeding, or influencing an official proceeding in Congress?

The answer, of course, will be no.

Pro-Palestinian/anti-Israel demonstrators have occupied Capitol buildings for the past six months. Some protesters attend Senate and House hearings to disrupt—i.e., “obstruct” “impede,” and “influence”—the proceedings.

But Graves’ spokeswoman Patricia Hartman told me in an email last week that the local prosecutor in D.C. is handling arrests related to those protests—meaning the DOJ will not bring federal charges against demonstrators aligned with the Democratic Party.

Which is the risk if the Supreme Court fails to overturn 1512(c)(2) for J6ers. The DOJ will continue to selectively apply the law based on the political affiliation of the protester. Activity once protected under the Constitution instead will represent the basis of a felony charge and years in prison. A reckless, ruthless, and vengeful Justice Department working hand in glove with unaccountable federal judges in Washington will accelerate the cycle of punishment against Trump supporters to send a signal to other Americans heading into the 2024 election that the same can happen to you if you dare rise up against the powers-that-be.

There will be hundreds, perhaps thousands, more Joshua Youngermans in the future.

Only the Supreme Court can put a stop to it. It must.