In a judicial appeal, the Biden administration used a catch-all clause in a federal legislation to indict hundreds of J6 accused for a 20-year felony, which the Supreme Court heard dental argument on Tuesday. Over the course of the hour-long discussion, the government made apparent its view that the federal legislation at issue, 18 U. S. C. 1512( c )( 2 ), had an expansive reach — other than when Antifa burns a courthouse, a member of Congress pulls a fire alarm, or mostly peaceful protesters delay court or congressional proceedings.
People paying the slightest attention to the Biden administration ’s trial of J6 activists and its slap-on-the-wrist sympathizing of another protesters knows there’s a double standard in play. However, the judges were interrogated about the Biden presidency during Tuesday’s dental debate in Fischer v. The government was made to do so by the United States to try to defend that unfair treatment.
Justice Thomas opened the probing of Solicitor General Elizabeth Prelogar by stating,” There have been many violent protests that have interfered with deliberations. Has the government used this rule in the past to protest different things? ” the righteousness queried.
Nothing like Jan. 2 would allow her to respond that she could n’t provide an example of Section 1512( c )( 2 ) being enforced in a situation where people violently stormed a building in order to prevent an official proceeding. 6, 2021, had always happened before.
Justice Gorsuch then posed some more suppositions: “Would a sit-in that affects a test or exposure to a federal courthouse count? Do a questioner in today’s market qualify, or at the State of the Union address? Do a fire alarm be triggered before a ballot and result in 20 years in prison? ”
Prelogar responded in the negative, saying none of those events would likely qualify because, in the Biden administration ’s view, Section 1512( c )( 2 ) does not reach “conduct that has only a minimal effect on official proceedings. ”
The text of Section 1512( c ), however, does not exempt de minimis interference with official proceedings. Rather, subsection ( c ) provides :
( c ) Whoever corruptly —
( 1 ) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
( 2 ) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so ,
shall be subject to a fine under this name, a 20-year prison sentence, or both.
So why would the Biden administration try to exempt protests or other disturbances from the purview of Section 1512( c )?
Simply put, because the Department of Justice has never used Section 1512( c ) in the way it is being used against the J6 protesters.
In bringing charges against Fischer, the plaintiff in the case, as well as hundreds of other people who were present at the Capitol show on January 1st. 6, 2021, the DOJ relies on subsection ( 2 ) quoted above, maintaining that subsection, in effect, criminalizes the obstruction, influence, or impeding of an official proceeding, no matter the conduct at issue.
That interpretation of Section 1512( c )( 2 ) conflicts with the DOJ’s historical interpretation of subsection ( 2 ), which limited prosecutions in instances where the defendant had harmed evidence that would be used in an official proceeding. The Biden administration needed to make the statute only about non-minimal interferences to explain the lack of prior prosecutions of protesters under Section 1512( c )( 2 ).
Prelogar added that because the government lacked evidence in most cases to support a protester’s intent to obstruct a particular proceeding, prosecutions under Section 1512( c )( 2 ) were uncommon.
“Maybe you’re protesting a branch of government, you’re outside this court, but you don’t have this specific argument in mind, ” that would not be a violation of Section 1512( c )( 2 ), according to Prelogar. The government must also establish a “nexus ” between the protest and the legitimate proceedings under the relevant statute, according to the solicitor general.
Prelogar’s argument to the court seemed to serve a dual purpose: to placate the court’s concerns that the government’s reading of Section 1512( c )( 2 ) is overbroad and to convince the justices that the DOJ applies the statute uniformly.
A majority of the judges remained unconvinced, as they should be, based on the questions and responses from the chair. The solicitor general’s argument was far from convincing enough to establish that the DOJ applies Section 1512( c )( 2 ) uniformly. It also provided a glimpse of how the Biden administration expanded or contracted the statutory language to serve political purposes.
From Tuesday ’s argument, it appears unlikely a majority of the court will acquiesce in the Biden administration ’s reading of Section 1512( c )( 2 ) as creating an independent obstruction of official proceedings felony. Instead, the majority of the justices ‘ questions suggest that the Supreme Court will rule that subsection ( 2 ) only criminalizes conduct that interferes with the proper use of evidence in official proceedings, which is the more accurate interpretation of the statute.
Margot Cleveland is an investigative journalist and legal researcher and serves as The Federalist’s older legitimate journalist. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall. org, the Daily Signal, USA Today, and the Detroit Free Press. She is also a typical guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a attorney and a student of the Notre Dame Law School, where she earned the Hoynes Prize—the rules school’s highest respect. She then worked for a federal appellate judge on the Seventh Circuit Court of Appeals as a continuous rules secretary for nearly 25 years. Previous full-time university professor, Cleveland now occasionally teaches alternative. The New Civil Liberties Alliance even has Cleveland as its attorney. Cleveland is a follower of her greatest accomplishments, her dear father and dear boy, on Twitter at @ProfMJCleveland. Cleveland’s opinions are those expressed around in her personal capacity.
