Because I’ve followed the progress of so many of the January 6 defendants’ trials, I was fully aware of the implications — and the government’s misapplication — of the much-discussed Section 1512(c)(2) felony that has been applied to more than 350 cases. But it wasn’t until I heard the nine members of the U.S. Supreme Court grill Solicitor General Elizabeth Prelogar that I became genuinely frightened by the overreach of the Justice Department’s never-before-used application of this law.

Sitting in the press gallery during last week’s oral arguments in Fischer v. United States, I wrote in my notebook, “The questioning by the Justices of the solicitor general made me realize how dangerous 1512 could be.”

The background

18 U.S. Code Section 1512, titled “Tampering with a witness, victim, or an informant,” was enacted by Congress in 1982 to protect witnesses and victims in criminal cases from harassment and intimidation. Subsection 1512(c) was added in 2002 in response to the Enron scandal as part of the Sarbanes-Oxley Act to punish corporate executives and their accounting firms for the willful destruction of documents and other evidence with the intent of obstructing investigations into alleged financial crimes.

1512(c)(1) reads: “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.”

The first part of this subsection could hardly be applied to anyone charged with entering restricted spaces at or inside the U.S. Capitol on January 6, 2021. It also certainly has no bearing on even those who engaged in violence against law enforcement officers or property destruction that afternoon.

The controversy began with the government’s interpretation and application of 1512(c)(2), which reads: “[Whoever corruptly — 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.”

The mostly peaceful, nonviolent protesters on January 6 are being charged for the “intent” behind their entrance into the Capitol Building.

Before its application in January 6-related charges, 1512(c)(2) had never been utilized by federal prosecutors in any crimes unrelated to evidence tampering. The questions, debates, and controversies begin with the question why federal prosecutors are applying this felony charge — clearly enacted to punish destruction of evidence — to more than 350 January 6 defendants when it had never been used against any protesters who had temporarily impeded or interrupted any federal proceeding.

Why?

The first reason seems to be the Justice Department’s response to outcries from the left that the charges and subsequent punishments by the court against nonviolent January 6 protesters weren’t severe enough. Leftist politicians, media, and grassroots social media users have accused protesters of being “terrorists” and “insurrectionists.” No January 6 defendants have been charged with terrorism or insurrection.

Prosecutors have also used 1512(c)(2) as a cudgel to frighten January 6 defendants into quick plea deals on lesser misdemeanor charges. The threat of a felony with a maximum 20-year prison sentence can be very persuasive. The Justice Department gets its guilty plea to those lesser charges, and prosecutors move on to the next victim without the costly and time-consuming preparations for trials.

Even for those initially charged with only misdemeanors, the threat of a superseding 1512(c)(2) felony indictment — assuming the defendant refuses to take a deal — also looms large.

Then, there is the seemingly random and selective application of 1512(c)(2) against some January 6 defendants and not others. Some who were more aggressive or boisterous that day were not charged with obstruction. Others who were more passive in their activities were so accused.

Enter Fischer v. United States

Joseph W. Fischer of Jonestown, Pennsylvania, was a police officer with the North Cornwall Township Police Department. Fischer was charged in February 2021 with seven crimes for his actions on January 6: civil disorder; assaulting, resisting, or impeding certain officers; entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building; parading, demonstrating, or picketing in a Capitol building; and the 1512(c)(2) obstruction of an official proceeding.

In March 2022, U.S. District Judge Carl Nichols dismissed the obstruction charge against Fischer, ruling that prosecutors had improperly applied the evidence-tampering law in his case. But in April 2023, the D.C. Circuit Court reversed Nichols in a 2-1 ruling, finding the statute covered “all forms of corrupt obstruction of an official proceeding,” including Fischer’s actions on January 6. Fischer appealed this ruling to the Supreme Court, and in December the justices agreed to hear his case.

Alito, Gorsuch, and other justices come out swinging

During last week’s oral argument on behalf of Fischer by attorney Jeffrey T. Green, Justices Elena Kagan and Sonia Sotomayor seemed to support the government’s application of 1512(c)(2) to the January 6 defendants by using baseball terminology.

Kagan observed that Congress intended 1512(c)(2) “to function as a backstop” to “fill the particular gap that they found out about in Enron.” Sotomayor added, “[Congress] wanted to cover every base, and they didn’t do it in a logical way, but they managed to cover every base.”

After Green finished his argument, the solicitor general began her defense of the government’s use of 1512(c)(2). But the more conservative justices were having none of it, and the most significant pushback against the government’s arguments began.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Neil Gorsuch asked Prelogar. “Would a heckler in today's audience qualify, or at the State of the Union address?”

Referring to last year’s incident in the Cannon House Office Building, when U.S. Representative Jamaal Bowman (D-N.Y.) pulled a fire alarm to delay a congressional vote, Gorsuch asked, “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

Gorsuch’s question drew sideways glances and raised eyebrows in the press gallery.

Prelogar argued that such an act wouldn’t fall within the “actus reus” or “guilty act” guidelines. Gorsuch pushed back. “The pulling of the fire alarm, the vote has to be rescheduled, or the protest outside of a courthouse makes it inaccessible for a period of time,” he said. “Are those all federal felonies subject to 20 years in prison?”

Prelogar tried to argue that the government would need to prove the “corrupt intent” of otherwise “peaceful protesters” for the felony charge to apply.

Thought crime. But who gets to make that determination?

Gorsuch shot back: “So a mostly peaceful protest … that actually obstructs and impedes an official proceeding for an indefinite period would not be covered?”

“Not necessarily,” Prelogar replied. “We would have to have the evidence of intent, and that’s a high bar, we argue.”

There it is. The mostly peaceful, nonviolent protesters on January 6 are being charged for the “intent” behind their entrance into the Capitol Building. Anyone who jokingly posted on social media, “Hey! We stormed the Capitol today!” could be nailed for “intent.” But what about those who firebombed the federal courthouse in Portland? Apparently not.

Justice Samuel Alito piled on. “Let’s say that today, while you’re arguing or Mr. Green is arguing, five people get up, one after the other, and they shout either ‘Keep the January 6th insurrectionists in jail’ or ‘Free the January 6th patriots.’ And as a result of this, our police officers have to remove them forcibly from the courtroom … and it delays the proceeding for five minutes … so would that be a violation of 1512(c)(2)?”

“I think it would be difficult for the government to prove that,” the solicitor general said.

I wish Alito had followed up and asked her why. How could it possibly be anything other than their “intent” to “obstruct” or “impede” this “official proceeding"?

Justice Brett Kavanaugh added another pointed question “There are six other counts in the indictment here [against Fischer] … why aren’t those six counts good enough, just from the Justice Department's perspective, given that they don’t have any of the hurdles?”

Prelogar attempted to explain that Fischer’s “intent” was indeed to stop the function of government on January 6. Citing Fischer’s own words, “He said [before going to D.C.] they can't vote if they can't breathe.” But Kavanaugh seemed perplexed, asking, “The sentence available is longer for this count than for any of the other counts or all of them together?”

In other words, how is a possible 20-year prison sentence for the thought crime of “intent” worthy of a significantly longer sentence than committing violence against a police officer?

But we’ve already seen the government successfully use the thought crime argument against the likes of Oath Keepers founder Stewart Rhodes. Unable to present any evidence to the jury of Rhodes having given either a verbal or written order for his nonviolent group to stop the election certification, storm the Capitol, attack Congress members, or overthrow the government, the Justice Department convinced the jury that Rhodes and other Oath Keepers engaged in an “implied” seditious conspiracy.

Implied. A telepathic thought crime that earned Rhodes — who committed no violence and never entered the Capitol Building — an 18-year prison sentence.

Jeffrey Green during his rebuttal laid out the danger of applying Section 1512(c)(2) to January 6 protesters.

“I would point the Court to 1752 [of the U.S. Code], which is civil disobedience in a restricted space, which is what Mr. Fischer is charged with,” Green told the justices. “That’s a misdemeanor. If you cause substantial bodily injury, that is a 10-year maximum penalty. The government wants to unleash a 20-year maximum penalty on potential peaceful protests.”

“That in and of itself is a bad idea because it’s going to chill protected activities,” Green said, emphasizing that the law has never been used in such a way. “People are going to worry about the kinds of protests they engage in, even if they’re peaceful, because the government has this weapon.”

A new precedent of a never-before-used weapon is now aimed selectively by this government against those who think and speak of disapproved ideas, regardless of their actions or inaction. Call it a weapon of mass First Amendment destruction.

Let’s pray the Supreme Court terminates the government’s weaponization of 1512(c)(2) with extreme prejudice.