Fortunately for America, unlike Captain Ahab, the Biden DOJ has to answer to someone with the power to constrain them – namely, the Supreme Court of the United States (SCOTUS). As such, judging by this week’s oral argument in Fischer v. United States, we are cautiously optimistic that the legal Left’s mad chase may at last be coming to an end.
For those not versed in the minutia of Supreme Court cases, Fischer v. United States is a case which directly challenges one of the most counterintuitive, even bizarre elements of the Biden DOJ’s legal strategy against J6 defendants: their usage of an arcane provision of the Sarbanes-Oxley Act of 2002 which altered section 1512(c) of the US code to read,
(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.
Now, Biden’s DOJ has long used the section about corruptly obstructing, influencing, or impeding any official proceeding to go after January 6 defendants, arguing that storming the Capitol constituted a corrupt attempt to obstruct the official proceeding of certifying the election. However, Joseph Fischer, the eponymous petitioner in Fischer v. United States, disagrees. He argues that these charges are based on a misreading of the law, which was passed in response to the Enron scandal, and which therefore most likely was intended to target people who tried to actively obstruct justice, rather than simply people who protested – even violently -- at a government function. The legal arcana of the case are too complicated to explain, but in essence, the government is arguing that this one line, stripped of context or legislative intent, puts the January 6 protesters at risk of multidecade prison sentences, sometimes for things as simple as touching tables or bike racks. The January 6 defendant, obviously, disagreed, and so, for that matter, did the DC Circuit Court of Appeals, which threw out the charges in a 2-1 decision. It was against that backdrop which SCOTUS heard the case.
With the obvious disclaimer that reading anything into oral argument is a tricky business, at best, we think it’s safe to say that the results were not good for the government. True, Joseph Fischer’s lawyer faced more than his share of sharp questioning, including even from conservative Justices such as Clarence Thomas and Samuel Alito, but when Solicitor General Elizabeth Prelogar stood up, things took on a different character entirely.
Why? Because it became very clear, over the course of Prelogar’s argument, that the government’s answers to key questions were either evasive or simply nonexistent. For example, when Justice Neil Gorsuch asked whether, say, Rep. Jamaal Bowman’s attempt to halt Congress by pulling a fire alarm counted as obstructing an official proceeding, Prelogar could only answer that her office wouldn’t prosecute the case because it would be too hard to prove corrupt intent.
Which sounds insane, until you remember something: the January 6 protesters will freely admit that they did what they did because they thought they were trying to stop a literally corrupt proceeding, namely, the theft of an election. Whether you agree with them or not is beside the point; that’s what they believe they were doing, and they admit it. Since this is an admission to breaking the law, the Biden DOJ treats their intent as corrupt automatically, even though the only reason it can do that is because the people involved are being honest about their motives. Bowman, on the other hand, has pretended that he pulled the fire alarm because he thought it would open the door, which would, if true, make him even stupider than Rep. Hank Johnson of Georgia, who famously worried that Guam would capsize due to overpopulation. We are not prepared to assume that Bowman is quite that dumb; we think, instead, that he is simply lying. So to recap: because the January 6 protesters are honest about their motives, they get prosecuted for corruption, but because Bowman lies, the DOJ leaves him alone, because proving he’s lying would be too much work. This is the upside-down nature of justice in Washington.
But leave that aside for the moment and consider this: when Prelogar was asked whether Bowman’s act constituted an obstruction of an official proceeding, she didn’t say “no,” she just said “we couldn’t prove it.” In other words, yes, under their legal theory, it does constitute such an obstruction. And by that logic, so would blocking the bridges into Washington, DC, as Justice Samuel Alito pointed out, because it would delay members of Congress from voting. This, too, Prelogar could only demur on because it would be too hard to prosecute. In other words, under her legal theory, any protest in a government building could be prosecuted for “obstructing an official proceeding,” if DOJ could “prove” the intent was corrupt. Which from this DOJ basically means, “if the intent was to push back on our power, go directly to jail, do not pass go, do not collect $200.”
But devastating though these exchanges were, you might say, let’s be honest: we all knew that Gorsuch and Alito wouldn’t be persuaded by this case. What about the three swing votes, Roberts, Kavanaugh, and Barrett? Well, that is where our optimism comes from. Because as it turns out, neither Roberts, Kavanaugh, nor Barrett seemed entirely convinced by the government’s position. In fact, some of the sharpest questioning Prelogar faced came from Roberts and Kavanaugh, the latter of whom asked possibly the most important question of the case. To paraphrase Kavanaugh, “you’ve charged these people with assault and all sorts of other crimes, so why do you need the charge of obstruction of an official proceeding?”
And that is where Prelogar’s lawyerly mask cracked. She began ranting about how all the other charges brought by the Biden administration – again, including assault – didn’t “hold the defendants accountable” sufficiently for their crimes. Leave aside that this sounds more like a #Resistance Twitter feed than a legal argument, and just think about this for a second: if you had to choose between hiring two ex-cons, one of whom was convicted of assault, and the other of which was convicted of “obstructing an official proceeding,” which would seem safer to you, just based on the offenses? Obviously, the second.
So how on earth can Prelogar say, with a straight face, that convicting people for assault somehow doesn’t hold them accountable, but convicting them of “obstructing an official proceeding” does? Kavanaugh wryly suggested one answer – “obstructing an official proceeding” carries a higher maximum sentence than assault – but we think the answer is much simpler than that. Which brings us back to the big orange elephant in the room, Donald J. Trump.
Trump is not on trial for assault. Trump is not on trial for most of the charges that the January 6 defendants are facing. What Trump is on trial for is “obstructing an official proceeding.” That charge literally forms the backbone of Special Counsel Jack Smith’s case against former President Trump. So to answer Kavanaugh’s question of why Prelogar and the other Biden cronies need this specific charge to use against January 6 defendants who are already on trial for assault honestly, they don’t need it for those defendants. They need it for the only defendant they care about. The one whose case isn’t actually before SCOTUS (yet), but which they are desperately afraid will be crippled by their decision in this case. In a word, they need this charge because they need to get Trump. It’s as simple as that.
But while that may be a political reason to need the charge, it’s not a legal reason why the law should be applied. “We need this charge to stand so that we can use it against someone else” is, in fact, the exact kind of reasoning that SCOTUS is supposed to shut down. So Prelogar had to twist herself into knots before the court, unable to admit the truth, with only occasional reprieves provided by partisan liberal Justices like Elena Kagan and Sonia Sotomayor. And while it is obviously hard to judge, we suspect that her twisting didn’t manage to persuade the five Justices required to allow this farce to continue. Kavanaugh, Roberts, Alito, Thomas, and Gorsuch seemed clearly unconvinced, and there were flashes of skepticism even from some of the liberals. At minimum, it seems that the prosecutions may be limited, if not outright thrown out, for the simple reason that in this case, the Supreme Court asked the right questions.
And thank heaven for that. Because, as is obvious to everyone watching, the people who are really determined to obstruct an official proceeding are the very legal operatives like Prelogar who are doing their damnedest to obstruct the most sacred official proceeding in the United States: the right of Americans to choose their own president. And that, even if it will never be prosecuted, is the real crime at issue.
