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.