As I have been following much of the defendant’s trial on January 6, I have been wondering how the much-debated Section 1512(c)(2) felonies are affecting them and the government’s misuse of them. was fully aware. More than 350 items. But it wasn’t until I heard nine members of the U.S. Supreme Court harshly criticize Attorney General Elizabeth Prelauger that I was genuinely horrified by the Justice Department’s overreach of a law that had never been used before. I felt it.
I was sitting in the press gallery during oral arguments last week.
Fisher v. United StatesI wrote in my notebook, “The attorney general’s cross-examination made me realize how dangerous 1512 was.”
background
18 US code
Section 1512The law, titled “Tampering with Witnesses, Victims, or Informants,” was enacted by Congress in 1982 to protect witnesses and victims in criminal cases from harassment and intimidation. Section 1512(c) was added in 2002 as part of the Sarbanes-Oxley Act in response to the Enron scandal, and provides protection against corporate management for intentionally destroying documents or other evidence for the purpose of obstructing an investigation into an alleged financial crime. It was intended to punish the public accountant and his accounting firm. .
1512(c)(1) reads as follows: “Anyone who unlawfully alters, destroys, mutilates, or conceals, or attempts to do so, any record, document, or other object with the intent to compromise the integrity or availability of the object for public use.”Continue Masu. ”
The first part of this subsection generally does not apply to a person charged with entering the Capitol or a restricted space within the Capitol on January 6, 2021. Also, anyone involved in violence against law enforcement officers or destruction of property is definitely irrelevant. afternoon.
The controversy began with the government’s interpretation and application of § 1512(c)(2) as follows:[Whoever corruptly — or] Any other person who obstructs, influences, or attempts to interfere with a public proceeding is subject to a fine under this title or imprisonment for not more than 20 years, or both. ”
of
almost peacefulnonviolent demonstrators on January 6th have been charged with “intent” behind their entry into the Capitol.
Until its application in the January 6-related charges, federal prosecutors had never used § 1512(c)(2) for crimes unrelated to evidence tampering. Questions, debates, and debates have raised the question: Why should this felony, clearly enacted to punish the destruction of evidence, be used against demonstrators who temporarily obstruct or disrupt it? It begins with the question of whether federal prosecutors will apply the January 6th ruling to the more than 350 defendants. Any federal proceeding.
why?
The first reason appears to be the Justice Department’s response to left-wing protests that the court’s charges and subsequent punishments against nonviolent demonstrators on January 6 were not severe enough. Left-wing politicians, media and grassroots social media users have denounced the protesters as “terrorists” and “insurrectionists.” None of the January 6 defendants have been charged with terrorism or rioting.
Prosecutors also used § 1512(c)(2) as a cudgel to intimidate the defendant on January 6 into a quick plea bargain on a misdemeanor charge. The threat of a maximum sentence of 20 years in prison for a felony charge is very convincing. The Justice Department pleads guilty to these minor charges, and prosecutors move on to the next victim without preparing for a costly and time-consuming trial.
The threat that even those originally charged with only misdemeanors will be replaced by 1512(c)(2) felony charges if the defendant refuses to transact also looms large.
Second, 1512(c)(2) applies seemingly randomly and selectively to some defendants on January 6 and not to others. Some of those who were more aggressive or rowdy that day were not charged with obstruction. Those who were more passive were also so condemned.
input Fisher v. United States
Joseph W. Fisher of Jonestown, Pennsylvania, was a police officer with the North Cornwall Township Police Department.
Fisher was indicted In February 2021, he was charged with seven counts for his actions on January 6: insurrection. Assaulting, resisting, or obstructing certain police officers. Remain in restricted buildings or grounds. Disorderly and destructive conduct in restricted buildings or grounds. Acts that disrupt the order within the National Diet Building. parades, demonstrations, or picketing inside the Capitol; and 1512(c)(2) obstruction of official proceeding.
In March 2022, U.S. District Judge Carl Nichols dismissed obstruction charges against Fisher, ruling that prosecutors improperly applied evidence tampering laws to his case. But in April 2023, the D.C. Circuit Court of Appeals reversed Nichols in a 2-1 decision, ruling that the law covers “obstruction of official proceedings due to corruption in all its forms,” including Fisher’s actions on January 6. Certified. Fisher appealed this decision to the Supreme Court.And in December, the judge
agreed to hear his case.
Alito, Gorsuch, and other justices come out in full force.
During last week,
Oral argument Attorney Jeffrey T. Green represented Fisher, and Justices Elena Kagan and Sonia Sotomayor used baseball language to uphold the government’s application of 1512(c)(2) to the January 6 defendants. It seems like I did.
Kagan said Congress intended 1512(c)(2) to “act as a backstop” to “fill in certain gaps that we identified with Enron.” Sotomayor added:[Congress] We wanted to cover all bases, and they didn’t do it in a logical way, but they managed to cover all bases. ”
After Greene finished her argument, the Attorney General began defending the government’s use of § 1512(c)(2). But the more conservative justices had no such idea, and the most significant backlash against the government’s arguments began.
“Does a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Neil Gorsuch asked Preloger. “Does anyone in the audience today qualify to heckle, or at the State of the Union?”
Gorsuch referenced an incident at the Cannon House office building last year in which Rep. Jamal Bowman of New York set off a fire alarm to delay a congressional vote. “Would you set off the fire alarm before the fire breaks out?” Federal prison? ”
Mr. Gorsuch’s question drew sidelong glances and raised eyebrows in the press gallery.
Mr. Preloger argued that such conduct did not fall within the guidelines of “actus reus” or “culpable conduct.” Gorsuch pushed back. “Fire alarms going off, voting rescheduled, protests outside the courthouse will result in inaccessibility for a period of time,” he said. “Are all these federal felonies punishable by 20 years in prison?”
Mr. Preloger tried to argue that for the felony charge to apply, the government would have to prove the “corrupt intentions” of “peaceful protesters.”
Thought crime. But who can make that decision?
Gorsuch countered, “Does that mean that largely peaceful protests that actually disrupt and impede official proceedings for an indefinite period of time are not covered?”
“Not necessarily,” Preloger replied. “Proof of intent is required, but we contend that is a high bar.”
There it is.of
almost peaceful, nonviolent demonstrators on January 6th have been charged with “intent” behind their entry into the Capitol. Anyone who jokingly posted on social media, “Hey!” Today we stormed the Capitol! ” You can be nailed down by “intention.”But what happened to the people who firebombed the federal courthouse in Portland? Apparently not.
Justice Samuel Alito continued: “Today, while you or Mr. Greene were having a debate, five people stood up one by one and said, “Keep the January 6th insurrectionists in jail,” or “The January 6th patriots.” 1512(c), and our police officers have to forcibly remove them from the courtroom, delaying the proceedings for five minutes. Would it be a violation of (2)?
“I think it would be difficult for the government to prove that,” the attorney general said.
Alito should have followed up and asked why. How could there be anything other than their “intention” to “obstruct” or “obstruct” this “official process”?
Justice Brett Kavanaugh added another pointed question. “There are six other charges in the indictment here.” [against Fischer] … From the Department of Justice’s perspective, why aren’t these six counts sufficient when there are no hurdles?”
Preloger tried to explain that Fisher’s “intent” was indeed to shut down the government on January 6th. Quoting Fisher himself, “He said this.” [before going to D.C.] If you can’t breathe, you can’t vote. But Kavanaugh seemed confused and asked, “Is the sentence for this charge longer than any of the other charges or all charges combined?”
In other words, does a potential 20-year prison sentence for a “deliberate” thought crime merit a significantly longer sentence than for an act of violence against a police officer?
But we’ve already seen governments take advantage of this policy.
thought crime Rebuttal to Oath Keepers founder Stewart Rhodes and others. He could present evidence to a Rhodes jury that he gave verbal or written orders to his nonviolent group to halt election certification, storm the Capitol, attack members of Congress, or overthrow the government. First, the Department of Justice convinced the jury that Rhodes and Rhodes argued that: Other Oath Keepers were involved in an “unspoken” seditious conspiracy.
Implicit. Rose, who committed no violence and never entered the Capitol, was sentenced to 18 years in prison for telepathic thought crimes.
In his rebuttal, Jeffrey Greene discussed the dangers of applying Section 1512(c)(2) to the January 6 protesters.
“I would point the court to 1752.” [of the U.S. Code]”This is civil disobedience in a confined space, and Mr. Fisher is being charged with this,” Green told the judges. “It’s a misdemeanor. If it causes serious bodily injury, it’s punishable by up to 10 years in prison. The government wants to impose penalties of up to 20 years on potential peaceful protests.” ”
“That in itself is a bad idea because it would chill protected activities,” Green said, stressing that the law has never been used in that way. “Even if it’s peaceful, people are going to be worried about what kind of protests they’re going to participate in because the government has these kinds of weapons.”
A new precedent for weapons never before used is now being selectively targeted.
this The government will deal harshly with those who think or speak about ideas it disapproves, whether or not they act. Let’s call it a weapon of mass destruction under the First Amendment.
Let’s hope the Supreme Court stops the government’s weaponization of 1512(c)(2) with extreme prejudice.
