AN IMPORTANT Supreme Court case has finally wound its way through the judicial system to now be before the nation’s highest court—which seems a bit skeptical of the D.O.J. pedigree behind it.
The case is styled Fischer v. United States, and it argues that the statute the defendant was charged under, 42 U.S.C. Sec. 1512(c)(2), was too broadly expanded and interpreted beyond the original intent to target crimes of alleged evidence-tampering. Specifically, it was interpreted by the D.O.J. so as to charge the defendants, Joseph Fischer and others, of obstructing Congress’ certification of the 2020 presidential election results thought to favor Biden. A concern was that such an interpretation was being used to sweep up a broad swath of others engaging in legitimate protest activity.
Justice Neil Gorsuch asked some of the most salient questions. “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” he asked Solicitor General Elizabeth Prelogar. “Would a heckler in today’s audience qualify or at the State of the Union address?” Or pulling a fire alarm before a legislative vote, à la Dem, Rep. Jamaal Bowman of NY? These acts, of course, represent things done not only by Jan. 6th defendants, but in some cases, by those lawfully exercising their First Amendment rights, or by elected officials themselves engaged in legitimate of controversial political activity.
For his part, Justice Samuel Alito seemed a bit unconvinced by the D.O.J.’s position, too. In fact, the way the statute is being creatively applied here could adversely and inappropriately not only impact hundreds of J6 defendants, but even President Trump’s election interference case. (Indeed, two of Special Counsel Jack Smith’s indictments (here) against President Trump rely on such an excessively broad read of the statute.) And the penalties are not inconsequential, resulting in a possible 20 years in prison. And of almost 1,387 J6 defendants, some 353 have been charged under this overly-broad interpretation of the statute. Justice Clarence Thomas, also skeptical, asked when the government had applied this statute to other protests in the past. It was, of course, a rhetorical question.
The novel application of the statute in an overly broad context certainly has serious ramifications for Joseph Fischer, a former PA cop who entered the Capitol on Jan. 6th for a mere four minutes, and who allegedly had a scuffle with law enforcement in that short period, resulting in him being charged with seven offenses, including a felony count of obstructing an official proceeding.
Fischer and certain other J6 defendants have a lot riding on the statute’s proper reading, as does President Trump. The SCOTUS decision is expected in late June. The procedural history is here. The writ of certiorari is here.
sua sponte 