The Supreme Court Has Agreed To Review The Justice Department’s Use Of 18 U.S.C. Sec. 1512(c) In January 6 Prosecutions — A “Lawsplainer”

by ShipWreckedCrew

This one reviews a hotly contested legal issue that normally gets resolved long before a case makes it to trial. Oftentimes a bad outcome for the defense on important motions pretrial is the key variable that leads to a guilty plea. That has been the case when it comes to the manner in which the Biden DOJ has employed the “Obstruction of Congress” charge under 18 U.S.C. Sec. 1512(c), as well as the manner in which district court judges have determined sentences for people convicted of that charge Let’s cover a few basics before we get to the text and disputed meaning of the statute.

When a defendant pleads guilty pursuant to a plea agreement, there are normally provisions in the agreement that each side will abide by at the time of sentencing in making arguments and recommendations to the judge. Those agreements are not binding on the judge, but in the vast majority of cases the judge goes along with what the sides have agreed to because there is generally no “miscarriage of justice” in doing so. There is no reason for the judge to upset the expectations of the two sides absent such a miscarriage of justice [such as would have happened in the case of the Hunter Biden plea agreement].

With regard to the Jan. 6 cases, where defendants have pled guilty to the Sec. 1512 count, the government has almost uniformly insisted defendants agree that two particular sentencing enhancements will be applicable. The combination of those two enhancements results in a recommended sentencing range for most defendants — in the mid-teens to the low 20s (months) without the enhancements — increasing to a range in the low 40s to low 50s with the enhancements. In other words from less than 2 years to between 3.5 to 5 years.

In counseling clients about the practical reality of how sentences are actually served, a sentence in the high teens (months) means a period of actual incarceration of between 8 and 12 months. A sentence in the mid-40s (months) means a period of incarceration in the high 20s to low 30s.

The two sentencing enhancements are the difference between less than one year in custody, and between 2 and 3 years in custody. If a defendant goes to trial on the 1512(c) count and is convicted, the likely sentencing range goes up into the 50s to 60s in terms of months – actual custody time of around 4.5 to 5 years.

What if this statute was never meant to be applied in factual circumstances such as those that took place on January 6? What if, rather than the statue being a broad prohibition on all conceivable forms of “obstructive behavior”, the statute as passed by Congress, based on the language used, was only meant to extent an existing statute to “obstructive behavior” towards evidence and witnesses that adversely impacted fact-finding processes such as found in courts of law?

The January 6 case taken up by the Supreme Court this past week is United States v. Fischer. In the Petition for Writ of Certiorari — the filing by which the Supreme Court is asked to review a lower court decision — the question posed by Fischer for the Court to answer reads as follows:

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

Before going further, let me give a word of caution to readers — if you are reading legal analysis regarding this subject on the internet from individuals who are not attorneys, you are likely to get over-simplified, incomplete and inaccurate information about complicated legal issues, particularly such as here where the issue is pending before the Supreme Court. It takes much thought, research, and drafting to advance a case to this point. Comprehension of the issues and arguments is not going to be gained from reading a few sources online and talking to a few people who claim they know about the issue. The arguments reflected in briefing to the Supreme Court — in most instances — are the result of hundreds of hours of work by multiple attorneys who are well-versed in the subject before they get started. Those arguments are directed to the most sophistical legal actors in the U.S. legal system — the Justices of the Supreme Court and their law clerks. These arguments are not directed at the untrained laymen.

Here is the text of the statute now at issue before the Court:

(c)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.

As noted in the question posed in the Petition, the title of Sec. 1512 is “Witness, Victim, or Informant Tampering.” Such titles are not themselves limiting on the scope of the conduct that falls within the statute — but they give you some indication about the subject matter covered by the statute.

Section 1512 has ten subsections — (a) through (k). In those subsections there are 20-25 specific prohibitions on conduct (depending on how you count them) that are subject to criminal prosecution — things like causing a person to “withhold testimony, or withhold a record, document, or other object, from an official proceeding…” or “alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding…”

Section 1512 is one of 21 sections under Chapter 73 of Title 18. Here are all the titles of those sections:

From the titles of those sections it is clear that Chapter 73 of Title 18 concerns conduct that interferes with or obstructs various types of governmental functions, almost all of which involve the justice system, or agencies/ departments of the Executive Branch operating in an investigative or quasi-adjudicative function.

Generally speaking, Jan. 6 defense counsel such as myself have filed motions from the start seeking to dismiss the Sec. 1512(c) counts, arguing that the statute is intended to protect the “fact-finding” process of various types of proceedings by criminalizing purposeful impairment of evidence — witness testimony or objects/records of interest to the fact-finder — and extends only to congressional proceedings of a similar character, i.e., evidence gathering at committee hearings and the like.

It is not, as DOJ has used it, a general prohibition on obstructing any congressional proceeding. To be covered, the congressional proceeding must be of a particular character, and the obstructive conduct must be of the specific nature contemplated by the statute — i.e., a fact-finding process, and the impairment of evidence/witness availability to such a process, respectively.

Resolving this dispute comes down to issues of “statutory construction” — the wording of the statute at issue, and how the provision at issue fits within the framework of the statute overall. In this case, two key questions involve the use and placement of a semi-colon, and the meaning of the phrase “or otherwise.”

It is the interplay between the language of (c)(1) and (c)(2), joined by the phrase “or otherwise” that will likely be the basis for the Supreme Court’s interpretation of the reach of the prohibitions set forth in the statute.

Subparagraph (c)(1) criminalizes conduct that “alters, destroys, mutilates, or conceals a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding….”

That is joined by a semi-colon with (c)(2) — known in statutory construction analysis as a “residual clause” — which reads “or otherwise obstructs, influences, or impedes any official proceeding….”

The issue for the court is whether “otherwise” should be read to open the door to conduct entirely different in kind and character from “altering,” “destroying,” “mutilating” or “concealing” evidence to impair the availability of that evidence. That is the Government’s position, one that has been adopted by all but one of the trial court judges in D.C.

The defense view is that “otherwise” only refers to other forms — not described with particularity — of conduct that impairs the availability of evidence in a manner synonymous with altering, destroying, mutilating, or concealing such evidence.

The conduct of January 6 defendants as a whole had the effect of stopping the congressional proceedings for several hours. But that stoppage did not “alter, destroy, mutilate or conceal — or “otherwise” work to impair the availability of or access to evidence/witnesses by the Congress on that day.

If the Supreme Court adopts the defense view, then a “riot” that causes Congress to merely pause for a period of time before resuming its “proceedings” does not fall within the “residual clause” of acts that “otherwise” obstructs or impedes a congressional proceeding.

Based on recent cases, how the Supreme Court might approach this case and how it might come to a decision on the reach of the “obstruction” statue at issue can be simply summarized in this fashion — if Congress had intended such a broad prohibition on conduct as under the interpretation advanced by DOJ, Congress needed to say so expressly in the text of statute. Over the past 40 years the Court has resisted broad interpretations of criminal statutes by DOJ where Congress could have spoken more clearly but failed to do so in the language used.

Here, if Congress had intended the “residual clause” to reach conduct that was entirely different in kind and character from the evidence-impairing conduct prohibited in Subsection (c)(1), then it needed to have said so. The modern “originalist” Court has rejected as part of its role the power to interpret a statute in order to accomplish what might have been the legislative goal where the language used is uncertain. The Court has consistently over that time rejected the expansive application of statutory language by DOJ in the area of “obstruction of justice.” It has narrowly construed language such that an “ordinary person” would realize when his or her conduct crossed the line into criminal “obstructive” behavior. If Congress wants broader application, Congress needs to speak clearly by using expressly broader language.

The simple encapsulation of this problem is reflected in the criminalization of the conduct of a vast number of January 6 defendants — the use of 1512(c)(2)’s “residual clause” to recast trespass and property damage crimes — oftentimes misdemeanors — into felony “obstruction” charges punishable by up to 20 years.

It has been 35 months since DOJ started presenting these cases to federal grand juries, which dutifully returned indictments charging violations of 1512(c)(2) against January 6 defendants using the definitions presented by prosecutors.

The first individual sentence for a violation of Sec. 1512(c)(2) was given only 8 months in custody. Approximately 6 months after that, my client Jacob Chansley (not my client at the time) was sentence to 41 months on the same exact charge. The only other crimes charged against Jake were misdemeanors — punishable by no more than 1 year in custody.

Over the 30+ months since the first sentencing on a 1512(c)(2) count, the Judges in the D.C. Circuit have imposed a huge range of sentences on defendants based on that count alone — from a matter of just a few months all the way to nearly 5 years in custody.

And yes, it is true, that DOJ had never before used Sec. 1512(c)(2) to prosecute any person for similar conduct in the manner in which it has used that statute against hundreds of January 6 defendants to turn misdemeanor offense conduct into felony offenses.

That is what is at stake in United States v. Fischer. It is no small matter that the Supreme Court has decided to take up the question in the first case that has made its way to the Court. The appeals court affirmed the DOJ’s use of the statute, but at the first opportunity to do so four Justices of the Supreme Court voted to review that decision. It is an unfortunate feature of our appellate system that it takes such a long time for a case to proceed from indictment to Petition to the Supreme Court. But the question is now finally before the Court.

It is also of no small consequence to Special Counsel Jack Smith’s case against former President Trump in D.C. The indictment in that case charges only 4 counts, and two of those counts are for violations of Sec. 1512(c)(2). If those counts are lost to a Supreme Court reversal in Fischer, what will be left is only a novel and legally dubious claim of “defrauding the United States,” and a voting suppression charge based on a statute targeting groups such as the KKK, where there is no allegation or evidence that any voter was prevented from voting in 2020. The statute has never before been used to prosecute post-election efforts to challenge the validity of votes that were cast.

Simply, SCO Smith’s DC case will be gutted.

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