As we mentioned in the last post, we have had three blockbuster cases today. We have already covered Loper, where the Supreme Court basically threw out 40 years of administrative law. While it is not as sexy as discussing a January 6 case, it’s far more likely to impact you personally. As we wrote when covering Loper:
As of this morning, hundreds, thousands, maybe even millions of decisions by the Supreme Court and lower courts and actions by federal agencies have been called into doubt. And many of them will be overturned or overruled. The case is that significant.
But still we do tend to think that the January 6 defendants have been treated unfairly. We have absolutely no sympathy for rioters in general, but the officials in D.C. clearly do if they are the right rioters.
For instance, we keep pointing out that the January 6, 2021 riot was no different in principle than the January 20, 2017 riot in D.C. Many people who don’t live in the D.C. area don’t even know there was a riot—which also speaks to media bias—but as Trump was attempting to be sworn in as president, leftists rioted. And like the January 6 riot, the January 20, 2017 riot was plainly designed to prevent the peaceful transfer of power: If they had prevented Trump from taking the oath of office, then under the Constitution he technically would not be president. Yet, there were no Congressional hearings about that riot, no nationwide FBI dragnet, and no one was convicted of any charges related to it. The Supreme Court said in RAV v. St. Paul, 505 U.S. 377 (1992) that the government ‘has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.’ Yet, that is precisely what we have seen: Riots are fine if they are done for the right reasons.
Thus this author believes that while their behavior is indefensible in a vacuum, these rioters are being treated unfairly because they are not being treated equally, regardless of viewpoint. So, we are gratified to see a victory for the January 6 defendants in Fischer v. U.S.
As usual, Turley broke the news:
...Roberts again writes for the majority. https://t.co/1x9BMSviEL
— Jonathan Turley (@JonathanTurley) June 28, 2024
Roberts is having a huge day.
...D.C. Circuit is reversed in the J6 case...
— Jonathan Turley (@JonathanTurley) June 28, 2024
...Smith has made a trial before the election an overriding priority. The court has pushed to achieve that result. However, they are fast running out of runway and this decision rips the wings off the plane for Smith in my view...
— Jonathan Turley (@JonathanTurley) June 28, 2024
...As for the other cases, the DOJ relied heavily on obstruction but also charged trespass in many cases. That could produce problems on sentencing. Many J6 defendants were not charged with obstruction and will not be impacted...
— Jonathan Turley (@JonathanTurley) June 28, 2024
And do we have to tell you Julie Kelly is happy?
In a massive victory for J6 political prisoners and an unprecedented defeat for the corrupt Biden/Garland/Monaco/Graves DOJ, SCOTUS has overturned the DOJ's use of 1512(c)(2), obstruction of an official proceeding, in J6 cases.
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
THIS MEANS THE DEPARTMENT OF JUSTICE HAS UNLAWFULLY…
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THIS MEANS THE DEPARTMENT OF JUSTICE HAS UNLAWFULLY PROSECUTED 350+ AMERICANS FOR THEIR PARTICIPATION IN JANUARY 6--A FLAGRANT ABUSE OF THE LAW TO PUNISH THOSE WHO PROTESTED BIDEN'S ELECTION AND TO CRIMINALIZE POLITICAL DISSENT.
Roberts for 6-3 court: "The Government’s theory would also criminalize a broad swath of prosaic conduct, exposing activists and lobbyist to decades in prison. Our usual approach in obstruction cases has been to “resist reading” particular sub-provisions “to create a coverall…
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
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Our usual approach in obstruction cases has been to ‘resist reading’ particular sub-provisions ‘to create a coverall statute.’ Yates, 574 U. S., at 549 (plurality opinion). Nothing in the text or statutory history gives the Court a reason to depart from that practice today. And the Government’s interpretation would give prosecutors broad discretion to seek a 20-year maximum sentence for acts Congress saw fit to punish with far shorter sentences. By reading (c)(2) in light of (c)(1), the Court affords proper respect to ‘the prerogatives of Congress’ in carrying out the quintessentially legislative act of defining crimes and setting the penalties for them. United States v. Aguilar, 515 U. S. 593, 600. 64 F. 4th 329, vacated and remanded.’
ACB joins DISSENT.
KBJ joins Roberts, Thomas, Alito, Kav, Gorsuch.
There goes any 'evil conservative justices support insurrection' narrative. Barrett joined the dissent, and Jackson joined the majority. We admit we did not see that coming.
Comment by @Jim_Jordan to me:
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
“The Supreme Court’s decision is an affirmation of the rule of law and a reminder that Congress—not out of control prosecutors—writes the law.”
That seems to be the theme of today with this and Loper.
So, let’s take a moment to explain what the Supreme Court did and why. The whole case involved how to interpret 18 U.S.C. § 1512(c)(2). So this is just statutory interpretation—the Constitution is not involved. The entire subsection reads:
(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.
The zealous prosecutors argued that the phrase ‘otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so…’ refers to every single way you can impede an official proceeding (and a Congressional session counts as an official proceeding), so rioting counts, shooting a Congresscritter counts, standing up and yelling in the middle of a hearing counts, and so on.
But the problem is that if you look at the statute as a whole, that becomes less obvious. Subsection § (a)(1) covers obstruction by killing people, § (a)(2) covers obstruction by physical force or the threat of physical force in general, § (b) deals with …
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person
… in order to obstruct, and § (d) deals with harassment designed to obstruct. The point is that each subsection seemed to deal with a specific subject. And so Roberts applied the canon of statutory interpretation known as noscitur a sociis. As Roberts put it:
the canon of noscitur a sociis teaches that a word is ‘given more precise content by the neighboring words with which it is associated.’
So, the Supreme Court interpreted § (c)(2) as limited to conduct like that seen in § (c)(1), which is about harming records, and not all the different ways a person could obstruct a congressional proceeding. The defendant in this case, Joseph Fischer, wasn’t charged with anything related to records. He was basically charged with trespassing in the Capitol and assault and battery of law enforcement. Apparently, he has not yet been convicted of anything and part of his indictment will be dismissed, but he faces other charges. Naturally, we presume he is innocent.
Reminder that Biden appointee Flo Pan, married to Democratic activist and Kavanaugh accuser Max Stier, wrote the DC appellate court decision.
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
Basically what SCOTUS decided today is that the vague "c2" subsection is tethered to "c1" which specifically addresses tampering with a… pic.twitter.com/9lLvknLlra
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Basically what SCOTUS decided today is that the vague ‘c2’ subsection is tethered to ‘c1’ which specifically addresses tampering with a record or document.
This is what DOJ will have to prove if they want to continue prosecuting J6ers and what judges will have to determine.
It will be impossible because no J6er is accused of tampering with a document or record related to the ‘official proceeding’ of counting electoral votes.
Right, we don’t believe anyone from January 6 has been alleged to have done that.
And of course there is an impact on our Outlaw President:
The 1512c2 charge represents half of Jack Smith's indictment against Donald Trump in his J6 case.
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
Smith will go with the farfetched "fake electors" to prove up the document/record tampering aspect of the statute SCOTUS just said is necessary to demonstrate.
Has Jack Smith ever won before the Supreme Court?
The dissent by ACB is a juvenile embarrassment. She is mimicking the words of DC judges who claimed the 4-hour disturbance at the Capitol was so unthinkable that Congress never envisioned that such an event would happen so 1512c2 applies.
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
Either a dunce or a pawn or both pic.twitter.com/miW2ss0Lpv
We haven’t read Barrett’s opinion, so we have no idea if she is right.
And we have heard from some people who have been convicted under this statute:
It's official. I just spent 3 years in prison for something that isn't a crime. #J6 #Fedsurrection
— Tim Hale - Criminally Funny J6er (@LouisofMonmouth) June 28, 2024
Texts pouring in from J6ers.
— Julie Kelly 🇺🇸 (@julie_kelly2) June 28, 2024
Here’s one pic.twitter.com/N8EUkNGoF4
For almost four years, Biden's extreme DOJ has falsely accused me of a 20-year felony based on their egregious, unbounded reading of the law. Many defendants have served time in prison for this charge. Today the Supreme Court rightly reprimanded the government for their tyranny. pic.twitter.com/f8GCReeW2B
— 🇺🇸 (@FreeStateWill) June 28, 2024
And naturally, ‘Shipwreckedcrew,’ who is a lawyer who has been representing many January 6 lawyers had his own commentary:
Fischer is out -- as all know.
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
And it's a big win for J6 Defendants. pic.twitter.com/dZ1FiMLYcl
I don't want to brag -- I never do as all of you know -- but this decision pretty much tracks what predicted months -- before the oral argument. In addition to the language below, the Court made the point of saying that it generally construes obstruction statutes narrowly so… pic.twitter.com/P5PwWTvFIh
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
Go ahead, brag.
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In addition to the language below, the Court made the point of saying that it generally construes obstruction statutes narrowly so that individual provisions don't end up swallowing the entirety of dozens of specific provisions carefully laid out by Congress with varying types of punishments.
The Gov't interp of 1512(c)(2) would swallow up nearly everything, and subject all types of conduct to a potential 20 year sentence based on nothing more than the DOJ choice of what particular subsection to charge.
Here is the second point. https://t.co/Na7IYueDMt pic.twitter.com/rW446BJFr0
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
And this: https://t.co/x7ohuiiiSp pic.twitter.com/zlRBqXUfGG
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
Let add something to my earlier post on Fischer.
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
This is NOT a categorical win across the board and everyone should be dancing in the streets.
It is a win AS FAR AS THE CASE ALLOWED GIVEN ITS POSTURE.
This is where expertise comes into play, and I'll be writing about this in…
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This is where expertise comes into play, and I'll be writing about this in more detail later.
This charge was dismissed based on the sufficiency of the language in the indictment.
The Appeals Court reversed and reinstated the charge.
The SCOTUS has now reversed the Appeals Court and said the District Judge was right to dismiss the charge.
******* BUT BUT BUT ********
In that situation, the Govt is generally going to be given the opportunity to correct the defect.
DOJ will likely be told it can go back to the GJ and try again by changing the language it uses. The path will be narrower, BUT the Court lefts some crumbs along the path for DOJ to follow.
For that - you'll need to wait for a RedState article later today.
Yes -- Fischer never went to trial. His case is still pending. So the Govt will supersede and try to fix the defect. The Judge might dismiss again -- or he might not.
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
The Govt is winning 99.9% of the trials.
The Govt isn't afraid of a trial. https://t.co/EBNBVNVYRk
Hmm.
This is where my repeated cautions come into play about where you find your information:
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
Non-practitioners -- and I'm not just talking about "journalists" but also attorneys who don't deal with federal criminal procedures -- do not understand the processes involved in… https://t.co/U5QS2u6X6I
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Non-practitioners -- and I'm not just talking about ‘journalists’ but also attorneys who don't deal with federal criminal procedures -- do not understand the processes involved in investigation, indictment, trial, appeal, etc.
Both sides typically have options when decisions go one way or the other.
The fact that this decision comes before there has ever been a trial on the merits on the charges means the losing side -- the Govt -- will likely be given an opportunity to correct its error because the law favors resolution of cases on their merits.
If the Govt cannot fix what SCOTUS has said it did wrong, then the case will be over.
But the general posture here is that the Govt will be given a chance to do that.
Whether it is successful or not is a question to be asked and answered later.
And of course, if you really want to end this travesty of justice, the best way to do it probably is at the ballot box:
Last night certainly made that a much better prospect.
— Shipwreckedcrew (@shipwreckedcrew) June 28, 2024
A Trump DOJ could also simply halt any cases put back in play and order any superseding indictments dismissed. https://t.co/KB5F8r1k6e
By 'last night,' we assume he means after last night’s debate and Joe Biden’s terrible, horrible, no good, very bad performance in it—a performance so awful that we are pretty sure Joe Scarborough is sleeping on the couch tonight.
Jokes aside, the courts can only do so much. If you agree that the January 6 defendants are not being treated fairly, you need to vote accordingly.
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