After Losing in the Supreme Court the DOJ Looks to be Doubling Down By Filing New Felony Charges Against January 6 Defendants

"Sorry, we were wrong" cannot seem to be found anywhere in the Justice Department Manual.

Continuing with the unfolding saga of how DOJ is dealing with its loss in the Supreme Court in United States v. Fischer, another shoe dropped on Thursday evening.

To recap briefly — for more than three years DOJ used 18 U.S.C. Sec. 1512(c)(2) as its “felony of choice” for any January 6 defendant who did not engage in a violent felony assault on a law enforcement officer. That statute made it a crime to “corruptly obstruct” a congressional proceeding such as the counting of Electoral Votes on January 6. That statute carried a potential maximum sentence of 20 years, and the manner in which the Sentencing Guidelines treated the offense left most convicted January 6 defendants facing three to five years in prison, even if they engaged in no violent conduct.

The application of that statute was contested repeatedly by hundreds of defendants who filed motions to dismiss. Every district judge denied those motions and endorsed the manner in which DOJ was charging the crime for conduct on January 6 — every judge except one. That judge agreed with the defense argument that the language of that statute suggested a much narrower factual scenario for it to apply, and that it was not correct to use it in a “dragnet” fashion for any act that “obstructed” a congressional proceeding such as was being done by the DOJ.

After that single judge was reversed by the Court of Appeals, defendant Joseph Fischer took his case to the Supreme Court where, on July 26, the Court ruled that the defendants and the lone judge had it right all along, and DOJ and every other district judge had gotten the issue wrong. That decision has now set the stage for a multi-faceted knock-down drag-out fight between DOJ and J6 defendants of the issue of whether DOJ can still make use of this statute under the much narrower interpretation given to it by the Supreme Court.

If you want more background about the Fischer decision, I have written previously about it here and here.