Fischer v. The United States Heard Today -- Appears a Clear Victory on Track!

The Supreme Court heard the Fischer case today - and it appears that the Government had a terrible day.  The January 6ers can breathe much easier now as soon Obstruction of an Official Proceeding will fall by the wayside.

The specific statute under review is 18 U.S.C. § 1512(c)(2) and its application to January 6th protesters at the Capitol:

Tampering with a witness, victim, or an informant 
(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. 

Congress created this law, found at 18 U.S.C. § 1512(c), as part of the 2002 Sarbanes Oxley Act in response to the Enron accounting fraud scandal.  Congress wrote this rule to close loopholes in the existing criminal laws relating to the destruction or fabrication of evidence and the preservation of financial records.

Today, central to the discussion at the Supreme Court was the cannon of construction called Ejusdem Generis, a statutory and constitutional construction principle that provides where general words or phrases follow a number of specific words or phrases, the general words are specifically construed as limited and apply only to persons or things of the same kind or class as those expressly mentioned.

The government, represented by Elizabeth Prelogar, argued that the requirements of 1512(c)(1) do not transfer kind or class restrictions or limits to 1512(c)(2).  The government argued that (c)(2) is broader in this regard because it only must consider "otherwise obstructs, influences, or impedes any official proceeding", and not be of the same kind or class as the elements of document destruction featured in 1512(c)(1).

While this interpretation violates Ejusdem Generis and should therefore cause the government’s case to fail, the government went further in trying to cover up their misguided effort by adding different elements to make up laws as they see fit.

Apparently recognizing the risk that their interpretation of the statute would be overbroad without the document destruction related elements from 1512(c)(1) – yet not wanting to be subject to 1512(c)(1) as January 6ers clearly didn’t do any document destruction, the DOJ had to make up a few constraints to narrow the application of their manufactured law.

In making stuff up, the government imposed upon itself certain constraints to prevent an appearance of an overbroad and therefore unconstitutional statute.  The DOJ’s attorney Elizabeth Prelogar at least twice brought up the idea that time and place must be considered in charging a violation of 1512(c)(2). This would narrow its application creating an appearance that the statute was not over-broad. 

In Prelogar’s response to a Justice’s hypothetical, she explained that blocking the bridges between Virgnia and DC so that Virginia members could not get to a vote was not sufficiently close in location to cause 1512(c)(2) to apply.  Perhaps a bit arbitrary, but more interestingly, this time and place restriction seemed to come out of nowhere.

The self-imposed time and place constraint represents the government’s case perfectly – a house of cards built on the goal of punishing political opponents.  This house of cards fell at the end when during rebuttal, Jeffrey Green, Mr. Fischer’s attorney, pointed out (with some excitement) that 1512(f) expressly provided that (f) For the purposes of this section — (1) an official proceeding need not be pending or about to be instituted at the time of the offense. . .

Boom! When destroying evidence such as contemplated in 1512(c)(1), the matter need not be pending – this makes sense – if you destroy a key document a year in advance, that would be just as useful or even more useful to obstruct a proceeding than destroying it the day before the proceeding.  However, this also applies to 1512(c)(2), but doesn’t work under the government’s interpretation.  The government wanted a sufficiently narrow rule as explained above – and yet narrowed (c)(2) in a manner that was expressly inconsistent with 1512(f).  Alas the Government’s interpretation simply does not fit – they incorrectly interpreted the law given this glaring inconsistency.

Said differently, Jeffrey Green pointed out that under 1512(f) there is no time connection regarding the official proceeding, hence January 6ers could have been held to commit the violation on the 5th – hence no nexus!  The government had argued multiple times of the need for proximity in time and place for them to meet their own fabricated reading of the law – yet being near in time was expressly not required.

Prelogar will lose – the Government will lose.  The case is a fraud and January 6ers shall not suffer further from any claims of obstructing an official proceeding except for the time that it takes for the Court to issue their decision.
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