The Damnable Lie Told To The Supreme Court By DOJ's Solicitor General During Oral Argument in Fischer v. United States
I'm Not Talking About An Act of Aggressive Advocacy -- I'm Talking About Misrepresentations In Downplaying the Sentencing Realities in January 6 Cases.
I listened very closely — twice — to the audio of the oral argument before the Supreme Court on April 16 in the case of Fischer v. United States, concerning whether the Department of Justice’s use of a particular criminal “obstruction of justice” statute to prosecute defendants charged in connection with the Capitol protest on January 6, 2021. The question before the Court is whether DOJ’s use of the particular statute — 18 U.S.C. Sec. 1512(c)(2) — is consistent with the purposes for which Congress passed that statute to criminalize wide-scale document destruction of business records by the accounting firm Arthur Andersen ahead of the DOJ investigation into ENRON.
This article isn’t about the overall nature of the oral argument or what it might portend for the outcome of the case — that’s a deeper dive that is going to require more time than I have right now.
This article is about the exchange over sentences imposed on January 6 defendants who have been convicted on of violating Sec. 1512(c)(2), and the duplicity of the Solicitor General on the subject when she tried to “pour cold water” on concerns expressed by multiple Justices over the use of “20 year felony” to address actions by defendants on that day.
The following are excerpts the transcript on the subject so you can understand precisely the exchange that had me wanting to throw my coffee cup across the room:
This exchange developed from earlier comments by other Justices questioning whether Congress meant for a statute with a 20 year maximum sentence to be applied in circumstances where the logical extension of DOJ’s application of the statute to January 6 defendants could also bring in much more minor and benign forms of “obstructive” conduct. Examples given were a handful of protesters interrupting a Supreme Court session or someone — Rep. Jamal Bowman — pulling a fire alarm to stop a congressional vote.
In an effort to deflect attention away from the maximum sentence provided for in the statute, the Solicitor General pointed the Court in the direction of looking at the application of the sentencing guidelines, which led her to later quote the numbers to Justice Kavanaugh above.
Here is one of the earlier exchanges that caused her radar to go off:
This is just wrong in so many ways that it raises a question for me as to whether Solicitor General Prolegar has ever been a DOJ prosecutor. Different obstruction statutes have different statutory maximums — some as low as 3 years. That means that a judge cannot impose a sentence of more than 36 months for a violation of that particular statute with that statutory maximum.
As noted in more detail below, the government has sought sentences under the Sentencing Guidelines far in excess of 36 months for Sec. 1512(c)(2) convictions. The reason they have been able to do that is because the maximum sentence allowed for a Sec. 1512(c)(2) violation is 20 years — 240 months. So while the Guidelines might be the same, using Sec. 1512(c)(2) gives DOJ massive amounts of “running room” to ask for whatever length of sentence they crave for a particular January 6 defendant.
The Solicitor General saw the obvious need to downplay the significance of the fact that Sec. 1512(c)(2) has a 20 year maximum, while many other subsections of Sec. 1512, and other obstruction statutes as well, have much lower statutory maximums — some as low as 3 years.
In attempting to take the focus off the 20 year statutory maximum — by representing that relatively “short” sentences she claimed have been imposed for Sec. 1512(c)(2) offenses make the statutory maximum something that should not concern the Court — what the Solicitor General did not confess is that DOJ prosecutors have advocated in writing and at sentencing hearings for sentences far longer than the 24-26 month sentencing figures she gave the Court.
The 50 specific cases she referred to in order to come up with those numbers — cases where Sec. 1512(c)(2) was the only felony conviction according to her — almost exclusively involve defendants coerced into pleading guilty to that offense pursuant to a plea agreement where the government dictated the terms with a “take it or leave it” offer. Because they were guilty pleas, the defendant benefitted from having done to the tune of about 18 months compared to defendants who go to trial and are convicted. So her “cherry-picked” data set of 50 out of 350 — the number who have been convicted on Sec. 1512(c)(2) — produces the lowest possible numbers in terms of mean and median sentences imposed that she could have come up with.
When the prosecution is winning 99.75% of jury trials, and their offer to you is “accept these terms or go to trial”, a defendant really doesn’t have much in the way of leverage to “bargain” for changes in the terms of the offer.
The plea agreements from DOJ offering a guilty plea to a single felony of violating Sec. 1512(c)(2) required the defendant to STIPULATE to certain sentencing enhancements — more on that below — and that the range of imprisonment under the Sentencing Guidelines based on those stipulated-to enhancements was typically 41-51 months for a first-time offender with no criminal history. The agreements provided that a defendant could argue to the judge at sentencing for a lower sentence — below the guideline range — but the defendant had to agree that the range set forth by the Government was correct. Under federal sentencing procedures, that range is where the sentencing judge begins his/her analysis. The judge could go lower — or higher — depending on a variety of factors, but the purpose of the guidelines is to bring some consistency to sentencing across the country. Most judges will typically impose a “guideline sentence” — meaning within the range — absent some significant mitigating factor favorable to a defendant that justifies “varying downward.” After all, the two sides agreed in the plea agreement that was the applicable range.
One group of defendants omitted by the cherry-picking of data by DOJ are defendants who went to trial and were convicted. If it was important to the Justices to know that sentences imposed were far below the 240 month maximum possible sentence when Sec. 1512(c)(2) was the only felony, it was just as relevant for them to know the range of sentences in other cases. Instead, DOJ culled the lowest possible outcomes it could isolate from complete list of defendants sentenced for the Sec. 1512(c)(2) offense. The sentences sought and imposed on defendants not in the cherry-picked data set are just as relevant to the inquiry made by Justice Kavanaugh as were the cherry-picked numbers she spouted.
Also omitted from the selected set of 50 defendants are any defendants who had more than one felony conviction. I’m quite certain — because I’ve seen dozens of examples over 30+ months of defending these cases — that many defendants have been given plea offers that required them to plead guilty to two felonies, not just one. The second felony is usually a violation of Sec. 111(a), Assaulting, Impeding, Interfering, etc. — with a Federal Law Enforcement Officer; or a violation of Sec. 231 — “Civil Disorder.” Defendants who have taken such plea offers would be excluded from the cherry-picked data set which was limited to defendants who were guilty of only one felony, the Sec. 1512(c(2) charge.
Why is this third group’s exclusion important? Because when you have more than one felony there are “grouping” provisions that increase the offense level under the guidelines, and that results in a higher guideline range and a longer sentence. I will not explain because you’ll want to stab yourself in the eyes with a fork.
The Solicitor General excluded defendants with more than one felony conviction from her data set.
These two excluded groups — comprising close to 300 defendants — have sentences or potential sentences much higher than the 24-26 month average given to the Court by the Solicitor General. And, as noted above, the DOJ has aggressively advocated for sentences in cases of 1512(c)(2) convictions far beyond this 24-26 month averages she cited to the Court.
I’m not going to do a sample guideline calculation for these three groups — you’re just going to have to trust the numbers below:
For a defendant who pled guilty to a single count charging a violation of Section 1512(c)(2) — absent aggravating or mitigating factors — the Guideline Range was 41-51 months. I’ve not seen a single case in more than two years of paying attention to sentencings where the DOJ recommended a sentence in below 41 months. This was the Guideline Range for Jake Chansley — he had no criminal history — and the prosecutor asked for 51 months. He was sentenced to 41 months.
A defendant who went to trial and was convicted does not receive a reduction for “acceptance of responsibility.” The guideline range — no aggravating or mitigating factors — for that defendant was 57-71 months.
If the defendant who went to trial testified and claimed that he/she did not intend to obstruct Congress, the prosecutors routinely sought another +2 level enhancement for “obstruction” via false testimony. For that defendant, the guideline range was 70-87 months — with no other aggravating factors.
A defendant convicted of more than one felony, and therefore subject to a “grouping” enhancement for multiple felony convictions — usually +1 or +2 levels, but sometimes higher — was facing a guideline range potentially as high as 97-121 months.
I wrote all those examples in the past tense. The reason for that is two months ago, in United States v. Brock, the Circuit Court of Appeals for the District of Columbia invalidated the two major guideline enhancements that had been applied at sentencing to convictions under Section 1512(c)(2). Those two enhancements added eleven (11) levels in the guideline calculation. These were the two enhancements that DOJ was requiring defendants to stipulate to in the plea agreements — in the “take it or leave it” offer — and those enhancements were the basis for the guideline range calculations that I listed above.
With the Brock decision, telling DOJ and the District Judges that they have been wrong to apply those +11 levels of enhancements, the correct guideline ranges FROM THE BEGINNING on Sec. 1512(c)(2) offenses should have been:
Plead guilty to a single felony 1512(c)(2) — 10-16 months.
Go to trial and be convicted — 15-21 months.
Same as “2” but testify falsely warranting an enhancement — 21-17 months.
Convicted on multiple felonies — 24-40 months depending on the number of additional felonies.
What the Solicitor General did was falsely suggest to the Court that the post-Brock sentencing landscape has been the sentencing landscape that existed from the start, and that sentences of around 2 years have been typical. She did this to mollify the concerns about DOJ’s use of a statute with a 20 year maximum sentence.
That is simply as duplicitous as one might be without just blurting out a blatant lie.
Beyond the fact that the data-set relied upon by DOJ was cherry-picked to come up with the lowest possible numbers, and the “average” in that data-set was 24-26 months was DESPITE the best efforts of DOJ to ratchet those numbers up much higher. The averages cited by the Solicitor General reflect the unwillingness of some of the District Judges to impose even a sentence within the guideline range agreed to by the parties in the plea agreement.
These are only anecdotal examples, but I know of one case where the Judge sentenced a defendant to probation — no prison time — on a Sec. 1512(c)(2) conviction.
In another case, I represented a defendant sentenced to only 18 months on a Sec. 1512(c)(2) conviction.
The very first defendant sentenced for a violation of Sec. 1512(c)(2) — in July 2021 — was sentenced to only 8 months.
Those are just three examples among a few dozen others where the only reason the sentence imposed was in the range represented by the Solicitor General was because the sentencing Judge went below the guideline range and refused to follow the DOJ recommendation for a much longer sentence.
To have the Solicitor General represent to the Court that the shorter-than-expected sentences were somehow consistent with the prosecutorial efforts and decision-making made me want to retch given my experience in case after case — both personally and in observing others — fighting against demands from prosecutors for sentences approaching a decade in prison on a Section 1512(c)(2) conviction.
There are a few other aspects of the oral argument by DOJ’s Solicitor General that are contrary to the reality of the prosecution of these cases by DOJ prosecutors in the District Court.
More to follow as time permits.
In any other Administration, at any other time, I would expect more from the DOJ. But, now, with this rogue Regime and its rampant abuse of Federal law enforcement powers, this type of gamesmanship before the Supreme Court is par for the course.
What I found interesting was the Government's obvious effort to downplay the jail time sought by the DOJ in the J6 cases. That is the best indicator there is of how heavy-handed and over the top the use of the 18 USC 1512 has been: the Feds don't want to admit it to the Court.
That soft-pedal presentation to SCOTUS must irk you, since no doubt the DOJ's presentation to your clients is quite the opposite. The DOJ tells defendants "we are gonna hammer your arse" and then tries to put the people away for 20 years, then goes to SCOTUS and acts like their use of the same statute is judiciously and cautiously applied resulting in sentences a tiny fraction of that. What a mindless bunch of balderdash.
Anyone who reads the paper knows the SG was full of crap. I highly doubt her duplicity will fool the Justices. Let us hope anyway.
a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;