The Patriot Post® · SCOTUS Slaps Down Biden DOJ on J6 Prosecutions

Independent journalist Julie Kelly called it “a gratifying but heartbreaking day,” and she’s right.

On Friday, the Supreme Court ruled that Joe Biden and Merrick Garland’s Department of Justice used an improperly expansive interpretation of a federal statute to prosecute Joseph Fischer, a former cop who was charged for his involvement in the January 6, 2021, riot at the Capitol.

“The justices on a 6-3 vote handed a win to defendant Joseph Fischer, who is among hundreds of Jan. 6 defendants — including Trump — who have been charged with obstructing an official proceeding,” reported NBC News in the wake of the decision, probably after a shot of bourbon.

In Fischer v. United States, the DOJ said the defendant was guilty of “obstruction of an official proceeding” under the 2002 Sarbanes-Oxley Act, the massive anti-fraud law enacted in the wake of the Enron accounting scandal to improve auditing and reporting practices of major corporations. It’s hard to figure out where political protest figures into this statute — especially when we’re talking about felony charges against more than 300 defendants who are thus facing prison sentences of up to 20 years.

“These people should be in jail,” Joe Biden mumbled on Thursday night about those filthy J6ers. “And they should be the ones who are being held accountable.”

Actually, as we noted on Friday, the ones who tangled with police should be in jail, but not the hundreds more who were let into the Capitol as tourists by the police.

Chief Justice John Roberts wrote for the majority, arguing that “to prove a violation” of Sarbanes-Oxley, “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so,” but that the DOJ’s expansive interpretation “would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.”

So, the Fischer case now goes back to a lower court for reconsideration. The Biden DOJ threw everything and the kitchen sink at J6 defendants, but, at least for now, using an obscure and unrelated statute isn’t going to cut it.

“It’s a win for the defense,” writes National Review’s John McLaughlin. “The Court’s decision not only sweeps aside a lot of the January 6 convictions that carried serious jail time (other than those for violent crimes), it will also require a lot of creativity on the part of Jack Smith to avoid having to dismiss the two counts in his indictment of Donald Trump under the same statute.” McLaughlin adds:

The government’s cause was also harmed by the self-destructive approach of Solicitor General Elizabeth Prelogar at argument. She could have stood sternly for a strict reading of the statutory text but instead tried to convince the Court that the statute contained other, unwritten limitations that would protect it from being used against familiar left-leaning types of obstructive protests. That lent the entire position of the Justice Department a powerful air of making up the law as it went along, which offended many of the usually textualist conservatives on the Court.

Perhaps Prelogar should’ve pushed a bit more forcefully on those penumbras and emanations.

The indefatigable Kelly, who proudly calls herself a “J6 conspiracy theorist” and “insurrection denier,” added that the DOJ had “weaponized this very vague [1512(c)(2)] language to say that anybody who interrupted the events of January 6 was obstructing an official proceeding [and was therefore] guilty of this felony punishable by 20 years in prison. Now, the DOJ has brought this felony count against more than 350 J6ers. About 120 of them are in prison or have already served prison time. … This has been the driving charge that has put people in prison for years.”

The other cases are pending, and Kelly expects “a flood of motions … to grant release to these defendants who have been wrongfully prosecuted by Joe Biden’s DOJ.”

“This means,” says Kelly, “the Department of Justice has unlawfully prosecuted 350+ Americans for their participation in January 6 — a flagrant abuse of the law to punish those who protested Biden’s election and to criminalize political dissent.”

How does this affect Jack Smith’s case against Donald Trump? Kelly notes that two of Smith’s four felony counts against Trump involve this same vague and now discredited statute, 1512(c)(2), which charges evidence tampering, destruction of records, and impairing an investigation. This puts Smith’s case on “shaky ground,” but she expects Smith to figure out “a way to make it work” with Trump-hating, Obama-appointed Judge Tanya Chutkan.

Could it ultimately mean that Smith concocts some all-new charges under a creative new convolution of law? Yep.

Once again, though, Hatchet Jack Smith has overreached. Once again, he’s tried to pervert the law in order to ruin the life of the man he’s prosecuting. He tried it against former Virginia Governor Bob McDonnell, and the Supreme Court rejected his tactics unanimously. And now, in a 6-3 decision, with leftist Ketanji Brown Jackson crossing over to join the conservative majority, the High Court has once again slapped Smith.

Speaking of the Court, Trump won at least partial immunity this morning. Chief Justice John Roberts wrote for the majority, “The nature of presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” On the other hand, “There is no immunity for unofficial acts.” That could mean Smith’s charges end up being tossed.

The Supreme Court has made it all but impossible for Smith to ram through a trial between now and November 5. So, at least in this one instance, the Democrats’ efforts to criminalize political dissent — and to interfere in the 2024 presidential election — have hit a roadblock.

But they’ll be back. We know they will.