Apparently 8 Months Was Not Enough Time For DOJ To Figure Out A Solution To Its Fischer Problem.
DOJ is asking for as long as another 60 days to come up with a creative solution to how it might still use Sec. 1512(c)(2) after Fischer v. United States -- while punting on some cases now.
The Supreme Court issued its decision in Fischer v. United States on June 28, 2024 — three weeks ago as of tomorrow. In that decision the Court held that the Dept. of Justice had been wrongly using 18 U.S.C. Sec. 1512(c)(2) to prosecute January 6 defendants for "obstructing Congress" -- that statute only applied to impairing objects or things of evidentiary value, with that impairment resulting in the obstruction of Congress.
As most know, DOJ was misinterpreting the language of the statute by employing it as a “dragnet” -- covering any conduct that "obstructed" Congress, of whatever kind or nature, as the basis to charge and convict January 6 defendants. The general approach was to charge a violation of Sec. 1512(c)(2) for any obstructive conduct directed at the proceedings, as opposed to conduct intended to impair evidentiary records/objects/things that might be used in the proceedings as was intended by Congress when it amended the statute in 2005.
Before I start, it is worth revisiting the sequence of events that led to the Fischer case being decided by the Supreme Court — and why the decision should not have come as a surprise.
The decision of the Appeals Court, which Joseph Fischer appealed to the Supreme Court, was handed down in April 2023. Mr. Fischer’s attorneys filed a Petition for Writ of Certiorari with the Supreme Court in September 2023. The Petition is only a request that the Court hear the case — it is not the actual “briefing” of the case. That comes only after the Court agrees to hear and decide the issue.
In federal criminal cases, the Solicitor General’s Office receives a copy of every Cert Petition filed by a defendant in a federal case. The SG has the option of filing a Response or a notice with the Court that it will not respond. In Fischer’s case, the SG’s Office filed a notice that it would not file a Response to the Petition.
But in early October 2023 the Supreme Court directed the SG’s Office to file a Response to the Petition — it wanted to hear from DOJ on the question of whether it should consider the question posed by Fischer as to DOJ’s broad interpretation of Sec. 1512(c)(2). That was the first indication DOJ should have taken note of that its legal position was not necessarily on solid ground.
The SG’s Office filed a Response on October 30, 2023, urging the Court to not take up the Fischer case and arguing that the Appeals Court had correctly resolved the question by endorsing the DOJ’s broad interpretation of the statute.
On December 13, 2023 — six weeks later — the Supreme Court granted the Petition and scheduled the case for briefing and oral argument. The Court would decide if DOJ had been correctly interpreting and applying the statute to January 6 cases. That was more more that six months before the decision, and more than 8 months since the Court directed the SG’s Office to Respond to the Petition.
But based on the events of the past 3 weeks, it’s almost like no one at DOJ ever imagined they might lose Fischer — they need ANOTHER 60 days to decide what they are going to do.
Because Joseph Fischer's case had never been prosecuted -- the Judge in his case dismissed the 1512 count and the Government appealed -- his case must return to the District Court for further proceedings consistent with the Supreme Court’s ruling. But, the "remand" by the Supreme Court was not back to the District Court, but rather to the Appeals Court.
After the District Judge dismissed the 1512 count, that decision was reversed by the Appeals Court and the count was reinstated. The Supreme Court then reversed the Appeals Court, sending the case back to the Appeals Court for it to correct its error(s) in its decision. The Appeals Court will then send the case back to the District Court for trial or other resolution with instructions on how the District Judges should apply the Supreme Court’s interpretations.
The facts of Joseph Fischer's case were not before the Supreme Court -- only the use of the statute by the DOJ. Now the Appeals Court must consider the facts of Fischer's case and issue a new opinion or at least some guidance when sending the case back to the District Court. That is because the Supreme Court didn't toss out the Sec. 1512 charge altogether, it simply held that the charge didn't cover the broad spectrum of conduct in the manner the DOJ has been using it. The next step in Joseph Fischer's case is to determine whether DOJ can use the Sec. 1512(c)(2) charge based on the facts of his case under a much narrower interpretation of that statute. So far, the Appeals Court has not given its guidance to the lower court judges on how to address that question.
The problem now facing the District Judges and DOJ is what is to be done with the hundreds of defendants who have already been convicted under the broad interpretation used by DOJ for more than three years, and the dozens of remaining cases where that charge is part of the pending indictments that are rapidly on track for trials.
Starting the first few days of July, as some defense counsel -- including myself -- began to press DOJ for answers on these question, the response was that DOJ needed 60 MORE days to digest the Fischer decision and evaluate how it might go forward in pending cases. Apparently, the last 8 months hasn’t been enough time to consider the possibilities. The problem is that almost every case involves a use of Sec. 1512(c)(2) based on the "obstructing the proceeding" theory that was rejected by the Supreme Court, and there are no obvious factual scenarios where "evidence impairment" was among the intended actions taken by the defendants in the cases.
DOJ is now starting to make some decisions -- because it is being pressed to do so by the calendar. It has to decide what it is going to do in the next few weeks in cases that are about to go to trial and a 1512(c)(2) count is among the charges.
There is most certainly, without a doubt, a dynamic at work that DOJ wants to resolve as many cases with either guilty pleas or trials prior to the November election. I have two cases with upcoming trial dates, a Sec. 1512(c)(2) count is included in both indictments, and DOJ has now communicated that it will be dismissing the Sec. 1512 count in order to keep the trial date.
Rather than take more time to try to figure out whether there is a legally sufficient way to present the evidence in cases that might still support the Sec. 1512 charge, the DOJ is going to dismiss that charge in order to not have the trial dates changed. What does that suggest is the top priority?
But DOJ is being less than forthcoming in other cases without upcoming trial dates, and is stalling making any decisions on what to do with Sec. 1512 counts -- most notably in cases involving defendants already convicted by DOJ using the now invalidated broad interpretation of the statute. DOJ wants to salvage those convictions any way possible, and is not anxious to explain to the defendants or the Court’s how it proposes to try and do that.
From the perspective of defense counsel, the order of priority are defendants now sitting in prison based on a conviction under that charge. The past 10 days has shown movement for this group, with some being granted bail pending the outcome of their appeals and possible resentencing without the Sec. 1512(c)(2) being part of the sentencing cacluations.
A second set of defendants -- smaller in number -- are individuals already convicted and sentenced, but not yet serving their sentence. The possibility of resentencing is starting to be advanced as a basis to delay their surrender to the Bureau of Prisons. But where those defendants have convictions on other charges as well, the ability to remain out of custody pending sentencing is diminished.
A third set of defendants are those who have already served their prison time, but remain subject to "Supervised Release" where the length of their time on SR is the product of a likely illegal sentence. My client Jake Chansley fits into this category. He has served his prison sentence but has two more years to serve on Supervised Release. The Sec. 1512 count is the only charge supporting his sentence and if that conviction is invalid, he should not be serving any sentence -- including the remaining SR time. We are looking at that issue now.
As of today, I am not aware of a single case so far where DOJ has put forth a formal position as to how it believes it can maintain either a prosecution under Sec. 1512(c)(2) or sustain a conviction already obtained under Sec. 1512(c)(2) under the narrower interpretation pursuant to Fischer, based on the events of January 6 and the facts specific to any particular defendant. I have one case with an early September trial date, where a Sec. 1512(c)(2) count is the only charged felony, and I have yet to receive an answer as to how DOJ proposes to go forward.
Some of the district judges gave DOJ only 30 days to put forth a basis for how it intends to go forward with Sec. 1512(c)(2) charges — or to dismiss them. I have one such case where the deadline given to the Government is July 30. Several other cases have deadlines during that first case of August.
I’m sure there have been many late night brain-storming sessions inside DOJ trying to craft a theory of prosecution involving “evidence impairment” and the events of January 6. But if there was an easy or obvious solution to the Fischer problem, I suspect we would have heard about it already.
"I’m sure there have been many late night *brain-storming* sessions inside DOJ trying to craft a theory of prosecution involving “evidence impairment” and the events of January 6."
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While I get that these people aren't stupid I'm having a hard time envisioning what they are doing... this "brain-storming"... as real intelligence using the human portion of their 'brains' rather than the lizard portions of their 'brains'.
Great piece... once again.
Our tax dollars at work.