Joseph Fischer was charged with several crimes following the J6 Capitol riot. Among those crimes was 18 U.S. Code § 1512 (c)(2).
This section criminalizes “(c) Whoever corruptly—(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.”
However, the parent Code 18 U.S. Code § 1512 is titled “Tampering with a witness, victim, or an informant”. It is the so-called “Enron Law”, and deals with destroying, hiding, or altering evidence. It was passed following the Enron scandal when federal prosecutors were surprised to find that while federal law prohibited making others destroy evidence, it was not illegal for a person to actually do this themselves.
The Supreme Court found today that (c)(2) prosecution must show that there was an attempt to obstruct, impede etc. and that it must include something physical related to the proceedings. For example, had Fischer found the Elector’s ballots and destroyed them, this would be appropriate, but rioting about the counting of ballots in and of itself, does not qualify for prosecution under this section dealing with physical evidence.
Today’s decision wasn’t unanimous. It was a 6-3 decision as we’ve seen so frequently of late, but with a notable difference. A surprising concurrence by Justice Jackson joined the majority opinion, while a rather unpersuasive dissent was written by Justice Barrett.
The vacation of this conviction remands the case back to the DC District Court for resentencing, based only on his other convictions. In a just society, this would result in a lower sentence, however the DC judges have already indicated they will simply increase sentences on the former Pennsylvania Police Officer’s other convictions rather than reduce his overall sentence.
For many J6 defendants, 1512(c)(2) is the most serious charge they face, with a maximum of 20 years in federal prison. For many it is the only felony they face. I doubt however that they will receive much relief, as the judges will likely simply increase their sentences for their other convictions. More insidiously, DOJ may re-indict the 1512(c)(2) charge under the theory that the defendants were attempting to alter or destroy the Elector ballots or other relevant records.
In the end this probably will not provide much relief for most of the J6 defendants. They will likely continue to serve sentences far outweighing the severity of their supposed crimes.
What this decision does do is to further illustrate the lengths to which a corrupt Department of Justice will go to criminalize political opposition. They charged hundreds of Americans for behavior that was not criminal under this statute, using a novel legal theory never used prior to J6, in essence creating a crime with a 20 year maximum instead of pursuing more appropriate misdemeanor charges.
This behavior is becoming common with DOJ. All future political prospects for former Virginia Governor Bob McDonnell were destroyed by a DOJ persecution for what the Supreme Court later unanimously found wasn’t even a crime.
We see similar use of novel legal theory and creative application of law with the Trump Mara-a-Lago case in Florida. Worth noting is that the lead prosecutor against Governor McDonnell was a federal prosecutor named David Harbach. Harbach is also one of the lead federal prosecutors against President Trump in the Mar-a-Lago case.
Perhaps the greatest impact this case is likely to have will not be in providing any relief to falsely accused and/or convicted J6 defendants, but in further illuminating the corrupt and evil intentions of the Orwellian-named Department of Justice.
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