The Patriot Post® · A J6 Defendant's Case Goes to SCOTUS
Did the feds go too far in charging rioters with obstructing Congress under the Sarbanes-Oxley Act? That question was posed Monday by the Wall Street Journal’s editorial board — a board that has hardly been sympathetic to those who participated in the January 6, 2021, riot at the Capitol.
Sarbanes-Oxley? you ask. Yes, Sarbanes-Oxley. For those too young to remember, that’s the massive 2002 statute inspired by the Enron scandal and enacted by Congress to ensure that public companies and their corporate boards adhere to proper financial record-keeping and reporting practices.
So what the heck does SOX, as it’s called, have to do with the Biden DOJ’s prosecution of January 6 defendants? It’s a great question — such a great question, in fact, that the U.S. Supreme Court wants an answer.
The case is Fischer v. U.S., which refers to J6 defendant Joseph Fischer. He says he spent four minutes inside the Capitol, then, as the Journal reports, “‘exited,’ after ‘the weight of the crowd’ pushed him toward a police line, where he was pepper sprayed.”
The Journal continues, giving us the government’s side of the story: “Mr. Fischer was a local cop in Pennsylvania. ‘Take democratic congress to the gallows,’ he wrote in a text message. ‘Can’t vote if they can’t breathe … lol.’ The government says he ‘crashed into the police line’ after charging it.”
Based on this, it’s fair to say that Fischer wasn’t one of the many J6 “tourists” who’ve felt the full wrath of Joe “81 Million Votes” Biden’s Department of (Two-Tiered) Justice. But using Sarbanes-Oxley to prosecute him? The Journal continues:
One section [of SOX, Section 1512(c)(2)] makes it a crime to shred or hide documents “corruptly” with an intent to impair their use in a federal court case or a Congressional investigation. That provision is followed by catchall language punishing anybody who “otherwise obstructs, influences, or impedes” such a proceeding. Now watch, as jurists with Ivy degrees argue about the meaning of the word “otherwise.”
In Mr. Fischer’s view, the point of this law is to prohibit “evidence spoliation,” so the “otherwise” prong merely covers unmentioned examples. The government’s position is that the catchall can catch almost anything, “to ensure complete coverage of all forms of corrupt obstruction.” The feds won 2-1 at the D.C. Circuit Court of Appeals.
I’m no lawyer, nor do I play one in our humble editorial shop, but this doesn’t seem like a proper and good-faith application of the law. Instead, it sounds like an administration run amok, reaching for any obscure statute it can find to punish its political enemies — and, yes, Team Biden treats anyone who’d dare question the results of the rigged 2020 presidential election as enemies of the state.
A federal district judge, Carl Nichols, had dismissed Fischer’s charge under Section 1512(c)(2), but a federal appeals court reversed Nichols, reinstating the charge, at which point the High Court agreed to hear the case. Oral arguments were heard Tuesday, and, as SCOTUSblog reports:
Some justices expressed concerns that the government’s interpretation of the law could sweep in too much conduct, while others appeared to agree with the government that the law was intended as a “catchall” provision to cover all kinds of conduct. And still others appeared to propose a narrower reading of the statute that would still allow the charge against Fischer to stand.
Constitutional law professor Jonathan Turley seems to agree: “The Court just ended argument. The three liberal justices offered support for the government and Justice Barrett seemed on the fence at points. It is hard to tell where Barrett may end up. However, there was clearly a skepticism from four justices, including Chief Justice Roberts.”
SCOTUSblog adds: “The court’s decision in Fischer’s case could affect charges against more than 300 other Jan. 6 defendants. It could also affect the proceedings in the case brought by Special Counsel Jack Smith against former President Donald Trump in a federal court in Washington, D.C.”
The Federalist’s Mollie Hemingway was less reserved than Turley. “Government,” she said, “is using an obscure financial crimes statute about delaying Congressional proceeding to destroy the lives of J6 protesters. Gorsuch just asked whether pulling a fire alarm before a Congressional vote could qualify (e.g., what Democrat Jamaal Bowman did recently) and government atty says no. LOL.”
Justice Gorsuch did indeed steal the show during orals: “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” he asked. “Would a heckler at today’s audience qualify, or a heckler at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
This last part was a clear reference to Democrat Congressman Jamaal Bowman, who recently received a wrist-slap for his unlawful efforts to obstruct a House vote, which, last we checked, was a public proceeding.
Gorsuch’s colleague, the inimitable Justice Clarence Thomas, was even more blunt: “There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past?” Why do we have a sense that Justice Thomas knew the answer to this question long before he asked it?
Interestingly, former Trump Attorney General William Barr knows a lot about Section 1512(c)(2). While Barr was a private citizen, before he was confirmed as Trump’s AG, he wrote a 19-page paper on exactly this statute. In it, he argued that it’s been stretched and expanded and incorrectly applied in all sorts of cases beyond its initial meaning — the Enron meaning — which involved impairment of access and destruction of documents. He says it needs to be reined back in, and the actions of a few lower courts lately lead him to believe that the Supreme Court will agree with his assessment.
Hundreds of J6 defendants are now in jail because of this statute. “This was a misapplication of the law,” Barr says. I agree, and I expect the Supreme Court will ultimately do the right thing.
Updated with a good question from Justice Clarence Thomas.