Saturday, April 20, 2024

Official Proceedings

Joseph Fischer in the Capitol, via

Following the reporting on the arguments in the Supreme Court on behalf of Joseph Fischer, a cop from Lebanon County, Pennsylvania, who had already started driving home from Trump's Stop the Steal rally on 1/6/20 when he heard on the radio about the crowd gathered around the Capitol and turned his car around to join the fracas, and made it as far as the East Rotunda where he turned on his phone's video recorder, yelled "Charge!" and went at a group of Capitol police who pepper-sprayed him as he slid to his ass on the slippery floor and into their line, and then hustled him back out of the building.

This behavior, while plainly illegal, did not do a lot of harm: it was already 3:24, well after the congressmembers had fled, and he was only there for about four minutes. How he became one of the 300-odd January 6 defendants, including former President Trump, to be charged with a felony count of "obstruction of an official proceeding" is something else, the insurrectionary violence of his intentions, as revealed in a series of texts and Facebook posts from before and after the riot: 

I mean, he wrote it to his chief!—that it might get "violent" when they basically lynched the Democratic congressmembers, to prevent them from voting on the election certification (the chief eventually fired him, when he was busted in February, as well as accompanying the FBI agents who arrested him)—and that it was "necessary" to demonstrate the power of "we the people" by which he clearly means the minority that lost the 2020 election—it's possible he doesn't know it's a minority, but more likely he thinks it's the majority of the "real Americans" who alone should be permitted to vote—the white nationalist message encoded in one of Trump's favorite lies, the one about illegal immigrants imported for the specific purpose of voting Democrats into office:

“I think they really are doing it because they want to sign these people up to vote. I really do,” Trump said in Mason City on Friday. “They can’t speak a word of English for the most part, but they’re signing them up.”

Fischer stated his intentions very clearly. He wanted to stop the procedure in the joint session from going forward, by any means necessary in the language of Malcolm X, to delay the peaceful transfer of presidential power from the election's loser to its winner, in the hope that something else might happen to stop it from happening altogether and keep Trump in the White House. I won't say the way he went about it was very smart, but he meant it, and he wasn't alone; special prosecutor Smith has found persuasive evidence for upwards of 300 people that they meant it too, including as I say the Former Guy, who is indicted in three such conspiracies, one of them the same as Fischer's, "to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified":

After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd— including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results— violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.  

So Tuesday's Supreme Court arguments focused on the meaning of the statutes under which Fischer was indicted, including   18 U.S. Code § 1512(c),

(c)Whoever corruptly—

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
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.

and I guess § 1512(k), which makes it a crime to join a conspiracy to commit any of the crimes listed under 1512, with a focus on that (2) clause, and the meaning of the word "otherwise", with solicitor general Elizabeth Prelogar claiming it means what it says 

"The case as it comes to this court presents a straightforward question of statutory interpretation: Did [the] petitioner obstruct, influence or impede the joint session of Congress?" Prelogar told the justices. "The answer is equally straightforward. Yes, he obstructed that official proceeding."

and Fischer's lawyer Jeffrey Green suggesting it could only refer to bad things you might do to documents other than altering, destroying, mutilating them or concealing them:

"Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document or creating a fake new document," Green told the court on Tuesday. The law is "about a direct effect ... on evidence that's to be used in a proceeding."

There's actually a reason for this, which is that the law it's taken from originated in a particular case that didn't have anything to do with congressional proceedings; it was the 2002 Sarbanes-Oxley Act, a reaction to the Enron scandal of 2000, in which falsified business records played an important role, which was evidently the motive behind writing that section. Nevertheless § 1512 goes well beyond the limits of the Enron case in section (a), which makes it a crime to murder or attempt to murder anybody in order to hinder an official proceeding, or section (b), which adds on "Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct" to hinder an official proceeding, or section (d), on "intentionally harassing another person" to hinder an official proceeding (sections (e) through (j) are about different kinds of limitation on the law). 

So it really adds up to something pretty comprehensive, and certainly not just a question of documents. And (2) is what's called a catch-all or omnibus clause meant to bring in everything else as opposed to only justice—"official proceeding" is defined elsewhere in the code as comprising proceedings before federal judges, Congress, federal government agencies, and regulators of insurance businesses. I don't know why none of the hotshots seem to have known that—I found it in Wikipedia.

What enraged me beyond bearing was the idea that six justices might well think it's not illegal to break into the Capitol building and violently attempt to stop Congress from doing its job. Or even that all of them might think it's illegal, but only since 2002. Like you could have pulled a January 6 any time from 1788 to 2001 and gotten away with it, but that was fixed after the Enron case, magically. Surely that can't be true! Surely this has always been unlawful!

Turns out I hold this view in common with the late Antonin Scalia, speaking with reference to the similar catch-all clause in the obstruction of justice statute § 1503: "Acts specifically intended to 'influence, obstruct, or impede, the due administration of justice' are obviously wrongful, just as they are necessarily 'corrupt.'" (It would have been wiser to say, "if corrupt, are obviously wrongful," because an attempt to influence doesn't have to be corrupt at all.)

That, of course, wasn't Scalia's "textualism" but an honest cry from the heart for a change. 

Incidentally, the idea of using the catch-all clause § 1512(c)(2) in a case of this kind seems to have come from former special counsel Robert Mueller, in his detailed instructions to the Justice Department on how to indict then-president Trump on ten counts of obstruction:

Consistent with precedent and the Department of Justice’s general approach to interpreting obstruction statutes, we concluded that several statutes could apply here. See 18 U.S.C. §§ 1503, 1505, 1512(b)(3), 1512(c)(2). Section 1512(c)(2) is an omnibus obstruction-of-justice provision that covers a range of obstructive acts directed at pending or contemplated official proceedings. No principle of statutory construction justifies narrowing the provision to cover only conduct that impairs the integrity or availability of evidence. Sections 1503 and 1505 also offer broad protection against obstructive acts directed at pending grand jury, judicial, administrative, and congressional proceedings, and they are supplemented by a provision in Section 1512(b) aimed specifically at conduct intended to prevent or hinder the communication to law enforcement of information related to a federal crime.  (Mueller Report vol. II, pp.7-8)

And William Barr protested against the idea in advance, before the Mueller Report was written and before he himself became attorney general, in the famously weird unsolicited memo some have regarded as his audition for the AG post.

Scalia and I were right, though. The acts of Fischer and the acts of Trump are obviously illegal, and could be prosecuted by some or all of the laws Mueller listed; the value of § 1512(c)(2) is that it covers them all with its omnibus character, so it doesn't all need to be spelled out. If the Court forces Smith to spell it out, it's a pity and a waste of time, but it won't stop Trump from being tried, in my opinion.

More on the arguments themselves here from Chris Geidner.

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