• SCOTUS via Fischer Frees Trump from J6 Charges?

    July 10, 2024

    Tags: , , , , ,
    Posted in: Biden, Democracy, Trump

    This is how lawfare works. The Supreme Court on June 28 likely exonerated 350 of 351 defendants, rebuking Biden’s Department of Justice for abusing an existing law to go after January 6 participants and turn them into felons. You wanna guess who the one last defendant still in trouble is?

    Donald Trump remains charged with two counts of obstructing an official proceeding. At issue was part of the Sarbanes-Oxley Act of 2002 (Title 18, Section 1512(c)(2)), which was enacted after the collapse of the energy giant Enron and contains a broad catchall provision that makes it a crime to corruptly obstruct, influence or impede any official proceeding. The justices rejected the idea this statute, initially intended to criminalize things like shredding documents or tampering with evidence in corporate malfeasance cases, could be stretched by the Justice Department to include the disruptions of the counting process that took place on January 6.

    The SCOTUS case is Fischer v. United States, brought by defendant Joseph Fischer, a former police officer seeking to dismiss the charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory. It involves a federal law 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 was repurposed against J6 defendants, claiming their protest obstructed the business of Congress certifying the election of Joe Biden to the presidency. This was a novel use to create a felony out of the J6 protestors’ actions, as typically illegal or disruptive protesting is just a misdemeanor.

    There are also First Amendment issues with criminalizing protests against the government that were more or less ignored in these cases (though Justice Amy Coney Barrett did touch on the 1A in her dissent, and during oral arguments stated “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.)

    Trump is in the picture because he too 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 (that this was Constitutionally and technically impossible is somehow not relevant.) One aspect of this was Trump’s efforts to “exploit” the Capitol riot to his own ends, 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.”

    SCOTUS said in its recent decision the interpretation used to convict 350 men was wrong. They said prosecutors overstepped the bounds of the law in using an obstruction statute to charge members of the group that stormed the Capitol. Chief Justice John Roberts, writing for the majority, read the law narrowly, saying it applied only when the defendant’s actions impaired the integrity of physical evidence. Lower courts will now apply that new, stricter standard, and it will no doubt lead them to dismiss charges against many defendants. Those already in jail will likely see their sentences reduced and future trials will not include the obstruction charge. Left unspecified at present is the fate of the 52 people convicted exclusively under the law challenged in Fischer, with no other charge — 27 of whom are still serving sentences for that in federal prison.

    But don’t worry about those J6 guys getting off too easy. The New York Times, practically salivating, writes “Some federal judges in Washington who are handling the January 6 cases have already signaled that they are willing to increase the sentences defendants receive on crimes other than the obstruction count in order to make up for any loss in prison time.” Still, Trump saw the decision as a plus, posting on Truth Social this was a “a massive victory for J6 political prisoners.”

    But what about Defendant 351, Trump himself? Special counsel Jack Smith stated Trump’s charges will not be affected, saying Trump’s conduct could be considered a crime under even the narrow SCOTUS reading of the law. The former president is accused of tampering with documents (the law reads “have taken some action with respect to a document, record or some other object”) through his plot to create false slates of electors claiming he won in states actually carried by President Biden. The accusations against him include that scheme to concoct illegitimate documents to disrupt Congress’s processing of electoral college votes, namely, fake elector ballots “cast” for Trump by fake electors. In other words, the J6 guys obstructed the vote count through their protest, acts now deemed by the Supreme Court to be an over-application of the Sarbanes-Oxley Act of 2002. Trump is charged under the same law but for different actions, those fake elector ballots.

    Because that’s how lawfare works, ignoring the intent of any given law — common sense, in many cases — in favor of microscopically picking out and if necessary reinterpretating those parts of the law might lead to a conviction. The goal is not justice or a search for truth, it is 3D Tetris designed to see if some set of actions can be twisted to fit any available law that might lead to a conviction.

    That was the essence of Trump’s felony counts in the so-called “hush money” trial. What was essentially a bookkeeping error, labeling money paid to lawyer Michael Cohen as “legal expenses” when it was actually something else (reimbursement for money he supposedly gave to Stormy) grew into serial felonies because the prosecutor wanted it to. As an example, the Clinton campaign committed the exact same bookkeeping error, labeling money for Michael Steele to produce the infamous Russian dossier as legal expenses, and faced only a fine of $8000. No jail time hanging, no attempt to overturn the campaign for president, not even a decent slap on the wrist. That’s lawfare. Republican lawmakers, including Senator Tom Cotton and Representative Jim Jordan, filed a brief in Fischer’s case saying the Justice Department is using the law as an “all-purpose weapon against perceived political opponents.”

    Same for those classified documents. Classified was found purloined and improperly stored by Joe Biden (never mind Hillary Clinton and her email server) but no charges were filed. Trump faces a raft of charges for essentially the same act, without much explanation other than “face it kid, that’s lawfare.”

    Justice Ketanji Brown Jackson, surprisingly voting this time with the majority, wrote courts concerned about the uneasy fit between this law and the J6 protestors’ actions should not lose sight of “the backdrop of a real-world context” Congress wrote into the law after the document destruction in the Enron scandal. “There was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally,” she said. Nothing but lawfare, she might have added.
    There’s one last wrench to throw into the works, immunity. Following the verdict in Fisher, the Court one work day later ruled in Trump v. United States the former president is entitled to absolute immunity from prosecution for official acts, and sent his J6 case back to the lower court. The SCOTUS ruling does draw a critical distinction between official and private conduct. VP-hopeful J.D. Vance called it a “massive win,” as did Trump himself on Truth Social. Practically speaking, this all likely delays any verdict on Trump’s J6 actions until after the election, when it will not matter. Lawfare, however, is here to stay with us and it is unlikely that Trump will be its last victim.

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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

    • John Poole said...

      1

      My decades old premise is that the Founders were conflicted while secretly smitten with the idea of the “divine rights of kings”. A King’s special privileges is pretty appealing to high achievers. They were most likely very reluctant to sign on to the concept of a Republic with no king.

      07/10/24 6:05 PM | Comment Link

    • Rich Bauer said...

      2

      Given Diapers’ ability to commit crimes on a scale that would make Capone blush, can’t wait for the next four years. A country gets the Presidense it deserves. It has committed war crimes on a scale that make Germany blush. German Trump is the man for the job.

      MAGA – make Amerika Germany again.

      07/11/24 10:47 AM | Comment Link

    • John Poole said...

      3

      Instead of Biden being charged with a felony for impeding an official proceeding (a just election) Biden will instead be given an honorary chair at the new MAGA university with a, thanks for your self service.

      07/11/24 3:59 PM | Comment Link

    • Rich Bauer said...

      4

      Of course, if Diapers gets elected, none of these criminal acts will see him end in jail. What people don’t admit is Diapers was never tried by a jury of his peers. Where are you going to find a jury of pathological liars/sex pervert/ tax cheat/ sadists? The troubling finding is voters choose the candidate that most represents their morals. Lady Liberty, your slip is showing.

      07/11/24 4:07 PM | Comment Link

    • Rich Bauer said...

      5

      JP,

      If Amerika is on the way to the Fourth Reich, how many Russkies are going to die when it does?

      07/11/24 4:10 PM | Comment Link

    • Rich Bauer said...

      6

      Justice Is Swift

      While Peter ponders the decisions of the Supreme Court pandering to the powerful who pay for Clarence the Clown’s vacations, the rest of US ponder the decision of The Biden Cult to hide the ball until the clock runs out on the election. While Biden certainly did better at the press conference than the debate(how could he have done worse?), the facts are:

      1. The Biden Cult has now admitted Joe has good days and bad days. This explains why the Cult kept Joe out of dangerous situations that would magnify the bad days.

      2. Joe isn’t getting any younger, and the number of bad days will increase.

      3. No way in hell can Joe stay in the White House for four more years. The plan obviously was to hand over the position to Kamala when the bad days outnumbered the good days.

      4. The munchkins unfortunately have seen the wizard behind the curtain ain’t Joe. Who really is running the show?

      5. The next debate won’t be as bad as the first. But Biden will not be able to convince the independents, especially the young voters that he has the strength to lead the nation.

      6. That is why I am advocating TAYLOR SWIFT to be nominated at the Demo convention as president or VP. SHE WILL BE 35 before Jan. 1. How could the Bidens refuse Kamala or Taylor as Joe’s replacement?

      7. Yes, the Gym Jordan efforts to tie Hunter Biden into a grand conspiracy will have been wasted. J.D. Vance will have to go back to making money off hillbillies.

      8. If any of this sounds ridiculous, consider the GOP candidate appeals primarily to sex perverts, pathological liars, racists, and old white men who have guilty consciences for forcing their girlfriends and mistresses to get an abortion.

      .

      07/12/24 12:40 PM | Comment Link

    • John Poole said...

      7

      Bauer: an addendum to Trump supporters: old white and black guys who molested their daughters, step daughters, foster care females, nieces or any vulnerable and powerless vulvas.

      07/12/24 5:58 PM | Comment Link

    • Rich Bauer said...

      8

      JP,

      MAGA ain’t gonna like Putin anymore. Putin on Friday signed a bill that raises income taxes for the rich, part of efforts to help fill government coffers depleted by the war in Ukraine. The tax hikes were being presented domestically as “systemic reforms”.

      Trump better cut Putin off fast. The guy is acting like a commie.

      07/12/24 6:22 PM | Comment Link

    • Rich Bauer said...

      9

      Putin Is horrified about the Trump incident

      Having seen the photos of Trump’s ear bleeding from shattered glass by the assassin’s bullet, a spokesman for the Kremlin has commented on the shooting at the Trump rally.

      “We do not believe that the attempt to eliminate and assassinate Trump was organised by the current authorities,” Dmitry Peskov told reporters. And they know this how?

      “But the atmosphere around candidate Trump … provoked what America is confronting today,” he argued.

      “After numerous attempts to remove candidate Trump from the political arena – using first legal tools, the courts, prosecutors, attempts to politically discredit and compromise the candidate – it was obvious to all outside observers that his life was in danger.”

      They should know. These guys know all about getting rid of political enemies including Aleksei Navalny, Yevgeny Prigozhin, Sergei Yushenkov, Aleksandr Litvinenko, and Sergei Magnitsky.

      07/14/24 7:30 AM | Comment Link

    • Rich Bauer said...

      10

      The more things change…

      Two former FBI agents have expressed surprise that the rooftop where a gunman fired multiple shots at a Trump rally had not been secured given how close it was to the stage.

      Authorities say the building rooftop where the gunman fired the shots from was just outside the venue where former President Donald Trump held a rally Saturday. A CNN analysis showed the rooftop was about 400 to 500 feet (120 to 150 meters) from Trump.

      Steve Moore, a retired FBI supervisory special agent who worked as a counter sniper for two years, told CNN the rooftop should have been guarded.

      Another retired FBI field agent, Bobby Chacon, also told CNN Sunday he was surprised no one was guarding the rooftop, which he called “the perfect perch.”

      “That building… is the closest building with a clear line of sight to where the stage was. I’m shocked that they didn’t have somebody on that roof,” Chacon said. Moore said that “the fact that somebody allowed that roof to be unmonitored, unguarded” could have been a flaw in planning or execution.

      The lone gunman in the perfect spot, aided by Secret Service bad decisions. Time for another Warren Commission.

      07/14/24 7:36 AM | Comment Link

    • Rich Bauer said...

      11

      Crooks- Cruz

      How long before Trump suggests Cruz had something to do with this?

      Trump said Tuesday during a phone interview with Fox News. “What is this, right prior to his being shot, and nobody even brings it up. They don’t even talk about that. That was reported, and nobody talks about it.”

      07/14/24 10:32 AM | Comment Link

    • Rich Bauer said...

      12

      The NRA expressed shock that a home defense weapon was used to assassinate Trump.

      Americans own nearly 25 million AR and AK platform home defense weapons.

      07/14/24 10:40 AM | Comment Link

    • Rich Bauer said...

      13

      “Lawfare, however, is here to stay with us and it is unlikely that Trump will be its last victim.” Exactly.

      An estimated 26% of Americans ages 18 and older — about 1 in 4 adults — suffers from a diagnosable mental disorder in a given year.

      With 25,000.000 AR15 type assault weapons in circulation in the US, it is a miracle this doesn’t happen every damn day.

      07/14/24 3:50 PM | Comment Link

    • Rich Bauer said...

      14

      At least media entertainment is happy; these Trump assassin ratings are killer!

      I recommend you idiots in Amerika watch The Killer. Letting psychos have access to assault weapons of mass destruction, you have to wonder who is the crazy person here.

      Script:
      My process is purely logistical, narrowly focused by design. I’m not here to take sides. It’s not my place to formulate any opinion. No one who can afford me, needs to waste time winning me to some cause. I serve no god, or country. I fly no flag. If I’m effective, it’s because of one, simple, fact: I. Don’t. Give. A. Fuck.

      And that goes for you fucking idiots.

      07/14/24 5:40 PM | Comment Link

    • Rich Bauer said...

      15

      By Hook or by Crooks

      The psych profile of the Trump killer is very troubling for law enforcement who want to catch assassins and mass shooters before they act. Crooks was a registered Republican who wanted to be on his high school gun club. But the Pennsylvania man was rejected for being a “terrible” shot and making “off-color” jokes. He had no record of violent behavior, and worked in a nursing facility and was well liked by his coworkers.

      That alone should put the Lee Harvey Deep State conspiracy theory to bed. But how can law enforcement red flag someone like that. He apparently had more social compassion than TRUMP.

      Oh I know. How about we Get these weapons of mass destruction off the streets. If Crooks had a handgun, the best choice for home defense, he may hit someone in the back row if he was lucky.

      But the Crooks in DC will never allow that. You have to wonder if we should red flag them.

      07/14/24 7:22 PM | Comment Link

    • Rich Bauer said...

      16

      USAUSA, incompetence everyday

      Boeing got a lot of flak for sheer incompetence to the MAX, but the Secret Service (can we please come up with a name that isn’t so comical?) has reached new lows in sheer incompetence. Its latest Crooked defense to the Trump assassination was it knew the roof where the sniper reached to fire seven bullets was a vulnerability but gave the responsibility to the Local Keystone Kops to handle.

      It is a miracle that Trump or Biden haven’t been assassinated before this, given the appalling level of incompetence by our SS. Of course the SS has shown its incompetence dating back to the JFK assassination, as it knew the Dallas Book Depository was a vulnerability and didn’t bother to check it.

      If it isn’t SS incompetence, then the USG got much bigger problems.

      07/15/24 1:12 PM | Comment Link

    • Rich Bauer said...

      17

      Biden: Okay, it was me, you hear me? I ordered the Secret Service to cut back protection for the Trump rally. It was an official sanction act. I got immunity. Thank you, Clarence the Clown. And I got until November to make more official sanctions.

      07/15/24 1:54 PM | Comment Link

    • Rich Bauer said...

      18

      Assault weapons don’t kill Republican candidates, crazy Republicans do.

      07/15/24 2:15 PM | Comment Link

    • Rich Bauer said...

      19

      History tends to repeat

      While “America’s Hitler” makes nice with Ras-Putin, the Ruskkies shouldn’t get too relaxed. The Molotov–Ribbentrop Pact was just an agreement for both sides to benefit (adios Poland) until they turned on each other.

      07/15/24 7:01 PM | Comment Link

    • John Poole said...

      20

      Bauer- I’ll have to disagree. The best home defense would be a Serbu Shorty not a hand gun or attack rifle.

      07/15/24 8:54 PM | Comment Link

    • Rich Bauer said...

      21

      MAGA HAS BEEN AROUND SINCE NIXON

      According to a poll conducted by Gallup just days before the NIXON IMPEACHMENT vote, only 38 percent of Americans were in favor of impeachment.

      This country loves criminals. It is our national identity.

      07/15/24 10:34 PM | Comment Link

    • Rich Bauer said...

      22

      Lend me your ear, Mr. Trump. While your strange pick of JD is “keeping your enemies close” you better watch your back. Vance has a lean and hungry look like a wolf.

      07/16/24 12:35 AM | Comment Link

    • Rich Bauer said...

      23

      Trump Assassination Update

      1. While the MAGA assassin crawled onto the roof with perfect sightline to target Trump, there was a local police sniper team stationed inside the building, which was used as a command post. That sound ain’t Santa Claus, boys. The SS initially blamed the local police, but thought better after the FOP pointed out the SS was in charge of the entire situation.

      2. The shooter’s high school associates said the guy was very conservative, loved guns…you know MAGA. LIKE MAGA, HE SAW NO FUTURE AND JUST WANTED TO BURN THE WHOLE SYSTEM DOWN.

      3. Secret Service Director Kimberly Cheatle said she will not resign after the assassination attempt on Trump, she told ABC News.

      Cheatle is expected to testify before the House Oversight Committee on July 22 amid mounting scrutiny of her and the Secret Service for failing to prevent the attack.

      Cheatle called the assassination attempt “unacceptable” and assumed responsibility for investigating what went wrong.

      “The buck stops with me,” she told ABC News. “I am the director of the Secret Service, and I need to make sure that we are perfor…

      “Kim, they just called. You’re fired.”

      07/16/24 10:53 AM | Comment Link

    • Rich Bauer said...

      24

      Trump: Take down those metal detectors.

      Secret Service Agent (with tears in his eyes): But sir, they have weapons.

      Trump: They are MAGA. They are my people.

      07/16/24 4:37 PM | Comment Link

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