United States v. Joseph Fischer — A January 6 Case That Could Blow Up SCO Smith’s Prosecution of Former President Trump.

by Shipwreckedcrew

This might turn out to be for former President Trump the most important federal criminal case decided in 2024, and his name doesn’t appear anywhere in relationship to it. But Joseph Fischer of Jonestown, Pennsylvania, may turn out to be among the most significant names to come out of the events of January 6 at the Capitol.

On April 19, 2024, the Supreme Court will hear oral arguments in Joe Fischer’s case. When the Supreme Court agrees to hear a case, it accepts a specific question(s) to be addressed and resolved — it does not review the case in its entirety. In Joe Fischer’s case, the question is 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?

The Department of Justice has made use of a variety of charges against January 6 defendants, but the most consequential charge employed against non-violent offenders has been a violatino 18 U.S.C. Sec. 1512(c)(2) — “corruptly interfering with an official proceeding.” The statute defines “official proceeding” to include “proceedings before Congress.”

Violations of Sec. 1512(c)(2) are subject to a maximum penalty of 20 years in prison. The Sentencing Guidelines applicable to this section, as used by the Government in plea offers and applied by the Court, almost assure that the applicable sentencing guideline range will be between 3 and 4 years in prison.

Two of the four counts in the indictment brought against former President Trump charge him with violations of Section 1512(c). Both rely on the same legal rationale and facts from the events of January 6 as those being used against January 6 defendants such a Joe Fischer. If the Supreme Court reverses Joe Fischer’s conviction, those two counts alleged in Special Counsel Jack Smith’s indictment will be dismissed — and with them the heart of the D.C. prosecution.

There are other criminal statutes that have been charged as well. For defendants actively engaged in some form of physical confrontation or violence with law enforcement that day, the DOJ has charged violations of 18 U.S.C. Sec. 111(a) and (b) — assulting, interfering, impeding, etc., a law enforcement officer —and Sec. 231, “civil disorder.” They have also charged a combination of two different misdemeanor statutes that related to being unlawfully on the grounds of the Capitol, and unlawfully entering the Capitol building — variations of “trespassing.”

But the Sec. 1512(c)(2) charge has been DOJ’s “go to” felony from the start because of how the sentencing guidelines are made to apply in plea agreements. Defendants are presented with plea agreements by DOJ and told to “take it or leave it” as to the terms offered. When the government is winning 99.75% of the cases that go to trial, there isn’t much leverage for defendants to “bargain” with as to the terms of the “plea bargain” being offered.

To be accurate — contrary to what you might have read or been told elsewhere — there are some District Judges on the DC Court who have the view that 3-4 years for “obstructing Congress” is overly harsh where there was no physical encounter with law enforcement, and have given substantially shorter sentençes than the 3-4 years called for in the plea agreements. In fact, there are some judges who have given less time even when there was significant contact with police officers at some point during the day.

But the 1512 count is the lynch-pin to the Biden DOJ’s narrative that the riot was all about subverting democracy and was an “insurrection” to prevent the transfer of power to the incoming Biden Administration. Without the narrative that flows from “obstructing Congress,” the events of the day become simply a protest over which the police lost control because they were undermanned and unprepared — among other reasons.

If you know nothing about the Fischer case or how it impacts the pending prosecution of former President Trump, this column should give you a foundation for understanding about what the Supreme Court will be deciding and how the outcome of Joe Fischer’s case could lay waste to the theory of SCO Jack Smith’s prosecution of former President Trump.

If you have an understanding of the issue raised by Fischer and how it is connected to the Trump case, this column should give you a better understanding as to how the decision will likely be reached.

I begin with the hopeful view and premise that the Supreme Court didn’t need to take Joe Fischer’s case to affirm DOJ’s use of Sec. 1512(c)(2) under the facts. It only takes 4 Justices to agree to hear a case, but it takes 5 votes to overturn the lower court.

It is a well established and understood practice that four Justices do not vote to take a case if there is little chance of a fifth Justice joining them in the outcome. The Court takes a limited number of cases each year, and if a minority view of the Court — four or fewer Justices — is not likely to be converted to a majority view with five votes, it is a waste of the Court’s time and resources when “denying Cert” accomplishes almost the same objective as taking a case and affirming the decision of the Appeals Court below.

The Supreme Court most often takes up cases when here is a split in the Circuit Courts of Appeal — there are 12 of them — and the Supreme Court needs to sort out the issue in order to bring uniformity to the law nationwide. In that instance one Circuit is “affirmed” while other Circuits are reversed.

But that is not the case here — and that is an oddity in the facts that further supports the view that the Supreme Court has taken the Fischer case in order to reverse the Appeals Court.

The application of Sec. 1512(c)(2) here involves Congress. That makes the application unique to the District of Columbia, so there will only ever be one District Court and one Appeals Court that will ever consider the issue. Every District Judge except one has ruled in favor of DOJ and endorsed its use of Sec. 1512(c)(2) on the facts. The Circuit Court of Appeals produced a 2-1 decision in favor of DOJ as well — with a fractured opinion that is not easily understood.

So only two Judges in the Courts below have dissented from DOJ’s use of the statute in the manner in which it has been used. If the Justices believed the outcome of Fischer in the Appeals Court was correct, it could have just left it to later opinions by the Appeals Court on other cases to sort out the issues left unresolved by the Fischer panel’s fractured opinions.

So while my view is biased, I think it unlikley that the Court took up Joe Fischer’s case for the purpose of answering the question posed above as “No, the DC Appeals Court did not err in the manner it construed Sec. 1512(c)(2).”

This view comes not just from an analysis of the use of the statute in relationship to January 6, but also taking into account that the Supreme Court has repeatedly reversed DOJ’s use of criminal statutes over the past 18 years where the error involved an over-expansive application of statutes to factual circumstances not envisioned by Congress as reflected in the statutory language.

Criminal statutes are passed by Congress to address specific instances of conduct that Congress chooses to define as “criminal” — obviously. But the Court has repeatedly rejected expansive definitions employed by DOJ to use the language of statute to broaden its reach to encompass conduct DOJ wants to criminalize by application, and not allow itself to be limited by what Congress intended.

Enter United States v. Joseph Fischer and the application of Sec. 1512(c)(2) to the events of Janaury 6.

Here is the first subsection of 1512 — which is titled “Tampering with a Witness, Victim, or an Informant.”

(a) (1) Whoever kills or attempts to kill another person, with intent to: (A) prevent the attendance or testimony of any person in an official proceeding; (B) prevent the production of a record, document, or other object, in an official proceeding; or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;

shall be punished as provided in paragraph (3).

(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to: (A) influence, delay, or prevent the testimony of any person in an official proceeding; (B) cause or induce any person to (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (iv) be absent from an official proceeding to which that person has been summoned by legal process; or

(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings;

shall be punished as provided in paragraph (3).

Section 1512 is one of 22 seçtions under Chapter 73 of the United States Code, which is itself captioned “Obstruction of Justice.”

 
At issue in the Fischer case, and all the other January 6 prosecutions is Subsection 1512(c), which reads as follows:

(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.

Here is the issue in a nutshell — J6 defendants are being charged under (c)(2), and the DOJ has argued — successfully thus far — that “otherwise obstructs, influences, or impedes” is all-encompassing language to be read independent of the other language anywhere in Sec. 15121, and reflects an intention by Congress to capture any conduct — of whatever kind or nature — that “obstructs, influences, or impedes” an “official proceeding.“

According to DOJ, the nature of the language is such that the offending conduct can be unrelated to “records,” “documents,” “witnesses,” etc., and it’s not necessary that the act have the result of “impairing” the “integrity” or “availability” of such items, for the conduct to fall within Subsection (c)(2).

So a riot at the Capitol that stopped the ongoing electoral vote counting was conduct that fits within the description of (c)(2) notwithstanding the fact that (c)(2) is joined with (c)(1).

And that’s where we arrive at the meaning and purpose of the word “otherwise” within the text and structure of the statute. The defense argument in Fischer is that “otherwise” links the two subsections to each other in a manner that requires commonality between the nature of the unlawful acts meant to be covered by each. Subsection (c)(2) is a “residual clause” for subsection (c)(1).  It operates as a “catchall” for other prohibited conduct of a similar kind and/or nature to that conduct specifically described in subsection (c)(1).

This interpretation is consistent with the Supreme Court’s decision in Begay v. United States, where the majority opinion rejected the government’s argument

“that the word ‘otherwise’ is sufficient to demonstrate that the examples – coming before “otherwise” in the statute — do not limit the scope of the clause following the word “otherwise.”  As the Court put it, “the word ‘otherwise’ can … refer to a crime that is similar to the listed examples in some respects but different in others.”

The Court held that “listed examples … indicate[ ] that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.”

The structure and scope of Sec. 1512 shows that subsection (c)(2) was meant to have a narrow focus, and not intended for a broad application to all manner of conduct unrelated to “evidence impairment” prohibitions set forth. Other subsections criminalize specific acts happening in narrow range of factual contexts.

If the scope of subsection (c)(2) is not limited by the language of subsection (c)(1) then there would exist a textual inconsistency in the drafting choices made by Congress.  Subsection 1512(c)(2) would be the only provision in the entirety of Sec. 1512 not focused narrowly on specific types of evidence impairment fitting within described factual scenarios.  This divergence from an otherwise consistent and narrowly phrased statute would come in the form of an amendment to a sub-subsection of a subsection nestled in the middle of an otherwise internally consistent statute.

Further, the unbounded expansive definition employed by the Government swallows all the other more precisely defined statutory prohibitions on conduct with the all-encompassing phrase that folds in anything that “obstructs, influences, or impedes an official proceeding.”

Why I think the Supreme Court has decided to take up the conviction of Joe Fischer under Section 1512(c)(2) is informed by a string of cases over the past 15+ years in which the Court has repeatedly ejected expansive definitions of criminal statutes by DOJ. Not every case involved “obstruction of justice” statutes. But each case did involve a rejection by the Court of DOJ’s aggressive effort to expand the reach of criminal statutes to suit DOJ’s purpose in bringing the prosecution even when it was clear Congress did not share that purpose in passing the statute.

It is beyond this particular column to go through each of these cases in detail, but I identify each below with short passages from the Court’s opinions that I see as supporting this point — I’ve omitted from the quotes below citations to other cases and source material just to enhance ease of reading and comprehension:

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