• Trump May Duck Obstruction Charges with SCOTUS Help

    May 30, 2024

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    Posted in: Democracy

    The Department of Justice charged approximately 350 people under the obstruction statute for their role in J6. One of them is Donald Trump. All of them, including Trump, may see those charges dropped based on an expected Supreme Court ruling. The ruling, if favorable, would also significantly protect First Amendment rights.

    In between the start of Trump’s criminal “hush money” trial in New York, and oral arguments in his immunity case, and before his two J6 cases go forward, the Supreme Court earlier this month heard oral arguments in the case of Fischer v. United States. Fischer (brought by defendant Joseph Fischer, a former police officer who is seeking to dismiss the charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory on J6) involves a federal law —  Title 18, Section 1512(c)(2)  — which provides anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a felony and can be imprisoned for a maximum of 20 years. The law, which was passed in the shadow of the Enron scandal and was designed to speak to document fraud and altering evidence, nonetheless is for the first time ever being repurposed against J6 defendants, claiming their protest/riot obstructed the business of Congress. This is a novel use of the law and is being challenged in the instant case. Typically illegal or disruptive protesting is a misdemeanor punishable by only a year or less in prison.

    Though not mentioned by name in the SCOTUS case, Trump enters the picture because he is charged with obstruction and conspiracy to obstruct, with the government claiming he worked in a variety of forms to overturn the 2020 election and make himself president for a second term. One aspect of this effort was Trump’s efforts to “exploit” the Capitol riot to his own ends (Tellingly, Trump is not charged with incitement or insurrection, crimes of their own with very specific legal definitions) from which the obstruction charge arises. Specifically, the indictment says “Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.”

    As Justice Alito put it, “What happened on January 6 was very, very serious,” but we need to figure out the “outer reaches of the statute.” Several other justices expressed concerns about people being charged with a felony for what Alito called “minor impediments,” such as if a heckler forced a proceeding to be delayed for a few minutes or if street protesters made it more difficult for members of Congress to enter the Capitol. The concern appeared to be that people who engage in minimally disruptive First Amendment-protected political protests could be charged with a very serious felony, something that rubs raw against the 1A. Alito continued: “Yesterday protestors blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco. What if something similar to that happened all around the Capitol so… all the bridges from Virginia were blocked, and members from Virginia who needed to appear at a hearing couldn’t get there or were delayed in getting there? Would that be a violation of this provision?”

    “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Gorsuch asked. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” Note Rep. Jamaal Bowman (D-N.Y.) pulled a fire alarm in the Capitol without punishment just before a vote; for protests inside the Court itself, the Justice Department has never charged any serious offenses.

    Justice Thomas asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?” The answer is no.

    Justice Coney Barrett asked how to distinguish the attack on the Capitol from other actions that have disrupted official proceedings. “Tell me why I shouldn’t be concerned about the breadth of the government’s reading?” she asked. Barrett said she was “concerned” the law as applied to the J6 defendants might cover some conduct protected by the First Amendment. One of Fischer’s attorneys said the government’s reading of the obstruction statute will “chill” protected activities. “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.

    Changes are already underway in anticipation the Supreme Court will say J6 defendants cannot be charged with obstruction. Over the past several weeks, federal judges agreed to release three defendants who were serving prison terms because of the obstruction law, saying the defendants could wait at home as the court determined whether the law should have been used to keep them locked up. Another 60 cases, including Jacob Chansley, the QAnon shaman wearing a fur-lined headdress with horns, of those already serving time could also be affected. Still, a reversal of the obstruction of an official proceeding charge would not affect the majority of the 1,350 defendants in J6 riot cases, most of whom are charged either with violent felony offenses or with misdemeanor violations such as trespassing or disorderly conduct at the Capitol.

    Prosecutors have also adjusted; there are currently no defendants facing only the obstruction charge, meaning even if the obstruction law is removed, there would not be any cases that would dismiss entirely. Joseph Fischer, the current SCOTUS case’s namesake, for example, faces six other charges in addition to obstruction. Some lower court judges have already signaled they would increase the sentences stemming from other charges if the obstruction count was not available to them. For example, a judge could increase a defendant’s total time in prison by imposing consecutive, not concurrent, terms on misdemeanor charges.

    Though there remains a convoluted interpretation of the law under which Trump could still be charged with obstruction even if SCOTUS rules in favor of Fischer and the charges against him are dismissed, it is likely that two of the four J6-related charges against Trump would have to be dropped if the Supreme Court rules in favor of Fischer in late June.

    But never mind Trump. At larger issue here is taking away a nasty legal tool the government can use to suppress protest and thus speech. If the Court rules against Fischer, it leaves the window open to future misuses. For example, if protesters sitting in a road prevented a citizen from getting to jury duty or voting in a local election, they could potentially be charged under this law. It would make it easy for the government to suppress dissent by finding someone inconvenienced by a protest as being involved in an “official proceeding.” With no limiting principle, as the Court is trying to establish in Fischer, the obstruction could be applied abusively as a dragnet by prosecutors to untold types of otherwise legal conduct.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

  • Recent Comments

    • Rich Bauer said...

      1

      All these charges, convictions, etc are meaningless as Diapers will appeal them all well past the election. BUT the weight of the charges, convictions etc are meaningful as Diapers collapses in the homestretch and sent to the glue factory. All the MAGA Cult money will be lost on a bad bet on a handicapped candidate. Of course, the MAGGOTS are already claiming foul, that the race was fixed. The Trump Dumpsterfire Court will no doubt try to get the winner DQed. Trump having lost the popular vote by more than 8,000,000 may scare even Alito into silence, lest he too is sent to the glue factory.

      I witness this mob psychology at the racetrack. Rather than bet objectively on current performance, losers bet on emotion, such as they like the color of the horse. White horses are often over-bet. I blame the education of these bettors, just as I blame the poor education of AMERICAN VOTERS. If only public schools taught a course on spotting con men and Catholic schools taught a course on spotting pedos, think how much money would have been saved.

      Was it our DESTINY to have the greatest con artist elected presidence? Why were some many willing to believe his lies? Yes, we have been programmed to believe lies. How else to explain how we lost trillions on lies about Vietnam, Iraq, and Afghanistan? Perhaps Americans should start thinking for a change and not follow the mob. Dems lies led US into the Vietnam swap.. Repugs lies led US into the Iraq and Afghan quicksand. How about we abolish both parties and vote for the person?

      But don’t bet on it.

      05/31/24 10:04 AM | Comment Link

    • Rich Bauer said...

      2

      If he walks like a duck…

      The myriad of cases against Donald Duck will be dropped after he lays an egg in November. He will still face years of probation for his NY felony convictions. He will fly South to his empty nest and stuff himself until his heart decides it has had enough.

      As for the MAGGOTs on the Supreme Court, their goose is cooked. Biden is hatching three new birds for the Court. Better by the dozen.

      05/31/24 6:14 PM | Comment Link

    • Rich Bauer said...

      3

      Sometimes it is best to put a cork in your First Amendment rights…when you are talking shit:

      Diapers:They want to stop you from having cars …
      We went through many experiences … Our people were not able to testify, but these people, they were able to
      salacious, as salacious as can be …
      Imagine a machete … on what they call crimes …
      You all know what the confliction is …
      I am the leading person for President…
      This is larger than me or anything … Nobody ever says that about me, l’d like them to say they have sorrow
      for me, but maybe I’m better that they don’t …

      06/1/24 7:27 AM | Comment Link

    • Rich Bauer said...

      4

      Diapers just shit himself with his free speech:

      “ As far as the trial itself, it was very unfair,” Trump said.
      “You saw what happened to some of the witnesses that were on our side. They were literally crucified by this man, who looks like an angel, but he’s really a devil,” Trump added, referring to Merchan.

      If any of his demented fuck supporters endanger the judges’ life, Put his fat ass in jail with the other serial killers.

      06/1/24 10:14 AM | Comment Link

    • Rich Bauer said...

      5

      Donnie Diapers, the Damn Turd Pol, faces his destiny on July 11.

      7 COME 11, HE CRAPS, HE LOSES.

      06/2/24 11:03 AM | Comment Link

    • John Poole said...

      6

      Bauer- your Javert like obsession with Trump’s comeuppance is very unbecoming. He could be POTUS again and you might find him very forgiving to all his vicious detractors. You should be able grant him understanding due to his broken psyche via childhood trauma.

      06/3/24 4:51 PM | Comment Link

    • Rich Bauer said...

      7

      JP,

      Once again you can’t see the forest for the rotten trees. Trump is not the problem. The psyche of his ignorant cult is the problem. He is a grifter doing what grifters do. Putin ditto.

      06/4/24 7:59 AM | Comment Link

    • Rich Bauer said...

      8

      JP,

      Of course, It is unfair to mention CONVICT TRUMP in the same sentence as MASS MURDERER putin.

      06/4/24 10:31 AM | Comment Link

    • Rich Bauer said...

      9

      Donnie Diapers says prison ain’t no bigly. Would be interesting to see his reaction if he was sexually assaulted. When you are famous, the guards let them do it.

      06/4/24 11:51 AM | Comment Link

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