It’s unlikely that many Americans sat down with a second cup of coffee and listened to last Tuesday’s oral arguments before the Supreme Court in Fischer v. United States. Nonetheless, it was an edifying tutorial on how the Department of Justice abused a federal law in order to charge J6 rioters with a serious felony. The statute is part of the Sarbanes-Oxley Act, passed in 2002 to prevent corporations from tampering with evidence to obstruct congressional inquiries or other official proceedings. For 19 years, the law was used only for that purpose. Then, in 2021, the DOJ redefined “official proceedings” to mean anything the government does, including certification of Electoral College votes.
Trump won’t be out of the woods … but he will be able to claim a victory against the forces of darkness.
This arbitrary revision became necessary because the actual “crimes” committed by most of the J6 defendants amounted to little more than trespassing and disorderly conduct. This obviously conflicted with the narrative being pushed by President Biden, congressional Democrats and the corporate media, all of whom insisted from the beginning that the riot was a “deadly insurrection.” Consequently, the DOJ had to come up with something that would sound more serious to the public than charging a few hundred knuckleheads with misdemeanors. At length they landed on Section 1512(c)(2) of Sarbanes-Oxley, which includes language that was distorted by prosecutors to charge roughly 350 rioters with felonies:
1512(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.
Joseph W. Fischer was among those charged with “obstruction of an official proceeding.” However, when his case got to an actual court, U.S. District Judge Carl J. Nichols dismissed the “obstruction” charge because Fischer did nothing “with respect to a document, record, or other object in order to corruptly obstruct, impede or influence Congress’s certification of the electoral vote.” The DOJ took their case to the D.C. Circuit Court of Appeals, which reversed Judge Nichols’s ruling. Fischer then appealed to SCOTUS, which granted certiorari in December. It’s risky to predict a SCOTUS ruling based on oral arguments, but most of the justices were dubious about the DOJ’s use of Sarbanes-Oxley in J6 prosecutions. (READ MORE from David Catron: Trump Owns the Working Class Vote)
Predictably, Justices Kagan and Sotomayor went after Fischer’s attorney, Jeffrey T. Green, in an attempt to undermine his argument that the key problem with the DOJ’s case is its misinterpretation of “otherwise” in 1512(c)(2). As Green phrased it, “This Court has said that ‘otherwise,’ when used in a criminal statute, means to do similar conduct in a different way.” It may seem odd that oral arguments in such an important case would revolve around a conjunctive adverb, but it appears in the transcript 57 times. Moreover, Justice Kavanaugh categorically stated that the key word in dispute was “otherwise.” Justice Jackson also questioned Solicitor General Prelogar about the DOJ’s broad use of that term:
So you’ve emphasized several times that Congress wasn’t writing on a blank slate in 1512(c) … It was in the wake of Enron, there was document destruction, and, you know, there was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally. They had this particular problem and it was destruction of information that would have — could have otherwise been used in an official proceeding … I guess I’m struggling with leaping from what’s happening in (c1) in the context in which it was actually enacted to all of obstruction in any form.
Chief Justice Roberts also pressed Prelogar on the DOJ’s broad interpretation of “otherwise.” Referring to a unanimous opinion he wrote in Bissonnette v. LePage Bakeries that was just released on April 12, he cited it as an example of the proper interpretation of “otherwise:” “[W]hat it said is you had specific terms, a more general catchall, if you will, term at the end, and it said that the general phrase is controlled and defined by reference to the terms that precede it.” He also explained to her what a misinterpretation looks like: “You can’t just tack it on and say look at it as if it’s standing alone because it’s not.” Prelogar is smart and extremely articulate, but she couldn’t deny that this is precisely what the DOJ did. (READ MORE: The Greedflation Canard)
If the Court does indeed rule in favor of Fischer, as it probably will, you won’t have to wait for someone on X to post the news. The shrieks of outrage from the White House, congressional Democrats and the corporate media will be audible from coast to coast. Not only will 350 convicted “insurrectionists” have an opportunity to get their sentences reduced, Special Counsel Jack Smith will be forced to recalibrate his prosecution of the Bad Orange Man. Former President Trump won’t be out of the woods, of course, but he will be able to claim a victory against the forces of darkness. More importantly, such a ruling will provide a glimmer of hope that our justice system will survive the assaults of the anti-democratic left.
