United States v. Joseph Fischer -- A January 6 Case That Could Blow Up SCO Smith's Prosecution of Former President Trump.

What Survives if "Corruptly Obstructing Congress" Is Not a Crime That Relates to the January 6 Riot at the Capitol?

Captain’s Log: I converted this Substack column from free to subscription the first week of March 2023. It has been a success beyond my wildest dreams. I suspect that is in large part because the revenue is used to support the criminal defense costs related to my representation of clients charged in connection with January 6. The anniversary date is crucial because it means those who signed up and paid the annual subscription price will face a choice in a few weeks — whether or not to renew that subscription. I’m sure there will be some who opt against doing so because they have lost interest in the content, and others who have Bidenomics challenges this year that are different from last year.

But when I made the decision last year to turn this into a source of revenue I did so because my legal practice was facing a financial crisis. Fifteen weeks of trial in two Oath Keeper cases from late November to mid-March, combined with significant drop in fundraising the first three months of 2023 — common for non-profits — left me in a decent hole and facing an AmEx bill about which all I could do was scratch my head. I was able to solve that problem to some degree with help from an unlikely source — the annual subscription revenue from the first round of subscribers to this column.

When I converted this column, the options were $6 a month or $60 for a year at the start. I had assumed the large majority of subscribers would chose the monthly option — which was attractive to me because that stream of revenue on a monthly basis would keep the lights on and the dog fed. But I was surprised by the significant percentage of subscribers who opted for the annual option, and the result was an unexpected flow of several thousand dollars right at the start — which pleased AmEx greatly.

With the anniversary date fast approaching, I considered increasing the rates to $8 monthly and $80 annually. But I have decided against it because those of you that subscribed at the start last year bailed me out of a tough spot — and it was largely unexpected by me the degree by which the annual subscribers helped solve an immediate problem in March 2023. So, in a spirit of gratitude and loyalty appreciation, I’m not going to change the annual subscription rate at this time.

The game has not changed since this time last year. The revenue from this column helps smooth out the ebbs and flows of contributions to the January 6 Legal Defense Fund on GiveSendGo. Fundraising for Janaury and February is better than last year, but there was one particularly sizeable donation that made that so. Without that, I’d once again be losing sleep at night over finances given that I’ve taken on six new clients since January 1. The recent surge in arrests by DOJ leads me to suspect my phone will continue to ring .

---

This might turn out to be for former President Trump the most important federal criminal case decided in 2024, and his name doesn’t appear anywhere in relationship to it. But Joseph Fischer of Jonestown, Pennsylvania, may turn out to be among the most significant names to come out of the events of January 6 at the Capitol.

On April 19, 2024, the Supreme Court will hear oral arguments in Joe Fischer’s case. When the Supreme Court agrees to hear a case, it accepts a specific question(s) to be addressed and resolved — it does not review the case in its entirety. In Joe Fischer’s case, the question is as follows:

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering"), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

The Department of Justice has made use of a variety of charges against January 6 defendants, but the most consequential charge employed against non-violent offenders has been a violatino 18 U.S.C. Sec. 1512(c)(2) — “corruptly interfering with an official proceeding.” The statute defines “official proceeding” to include “proceedings before Congress.”

Violations of Sec. 1512(c)(2) are subject to a maximum penalty of 20 years in prison. The Sentencing Guidelines applicable to this section, as used by the Government in plea offers and applied by the Court, almost assure that the applicable sentencing guideline range will be between 3 and 4 years in prison.

Two of the four counts in the indictment brought against former President Trump charge him with violations of Section 1512(c). Both rely on the same legal rationale and facts from the events of January 6 as those being used against January 6 defendants such a Joe Fischer. If the Supreme Court reverses Joe Fischer’s conviction, If the Supreme Court upholds the dismissal of the Sec. 1512 count in Joe Fischer’s case, those two counts alleged in Special Counsel Jack Smith’s indictment will be dismissed — and with them the heart of the D.C. prosecution.

[Note: H/T to Julie Kelly for correcting me here. There are 3 different cases where the same District Judge dismissed the 1512 count. All 3 cases went up on appeal. The Supreme Court only accepted the Fischer case for review. Joseph Fischer was not convicted. His case is stayed while the issue of the Sec. 1512 count is being reviewed. One of the other defendants, Garrett Miller, ended up pleading guilty to other charges while the Sec. 1512 count remained unresolved in his case as well for the same reasons as Fischer — it was dismissed by the District Court. So the status of all three pending cases is that the Sec. 1512 count was dismissed in each case, the Appeals Court reversed that decision and sent it back to the District Court for trial, but the Supreme Court has now agreed to hear the Fischer case. All three defendants have their cases in the District Court suspended while the issues surrounding the Sec. 1512 count are decided.]

There are other criminal statutes that have been charged as well. For defendants actively engaged in some form of physical confrontation or violence with law enforcement that day, the DOJ has charged violations of 18 U.S.C. Sec. 111(a) and (b) — assulting, interfering, impeding, etc., a law enforcement officer —and Sec. 231, “civil disorder.” They have also charged a combination of two different misdemeanor statutes that related to being unlawfully on the grounds of the Capitol, and unlawfully entering the Capitol building — variations of “trespassing.”

But the Sec. 1512(c)(2) charge has been DOJ’s “go to” felony from the start because of how the sentencing guidelines are made to apply in plea agreements. Defendants are presented with plea agreements by DOJ and told to “take it or leave it” as to the terms offered. When the government is winning 99.75% of the cases that go to trial, there isn't much leverage for defendants to “bargain” with as to the terms of the “plea bargain” being offered.

To be accurate — contrary to what you might have read or been told elsewhere — there are some District Judges on the DC Court who have the view that 3-4 years for “obstructing Congress” is overly harsh where there was no physical encounter with law enforcement, and have given substantially shorter sentençes than the 3-4 years called for in the plea agreements. In fact, there are some judges who have given less time even when there was significant contact with police officers at some point during the day.

But the 1512 count is the lynch-pin to the Biden DOJ’s narrative that the riot was all about subverting democracy and was an “insurrection” to prevent the transfer of power to the incoming Biden Administration. Without the narrative that flows from “obstructing Congress,” the events of the day become simply a protest over which the police lost control because they were undermanned and unprepared — among other reasons.

If you know nothing about the Fischer case or how it impacts the pending prosecution of former President Trump, this column should give you a foundation for understanding about what the Supreme Court will be deciding and how the outcome of Joe Fischer’s case could lay waste to the theory of SCO Jack Smith’s prosecution of former President Trump.

If you have an understanding of the issue raised by Fischer and how it is connected to the Trump case, this column should give you a better understanding as to how the decision will likely be reached.