Posted on 01/21/2024 7:52:51 PM PST by SeekAndFind
A recent U.S. Supreme Court decision to review a case called Fischer v. United States, which experts say could weaken prosecutors’ hand in hundreds of Jan. 6 cases, including former President Donald Trump’s, is already upending some defendant cases and sentencing proceedings.
In December, the Supreme Court decided it would take up the appeal by Jan. 6 defendant Joseph W. Fisher of the Biden administration’s novel use of an Enron-era evidence-tampering law to prosecute hundreds of defendants for obstruction of Congress during the Jan. 6, 2021, Capitol incident.
The obstruction of Congress charge—which carries a sentence of up to 20 years in prison—is the most widely charged felony in Jan. 6 cases, including against President Trump.
Mr. Fischer was indicted for various alleged offences for his role in the Jan. 6 incident, including obstruction of law enforcement during civil disorder, violent entry, and disorderly conduct on Capitol grounds—and obstruction of Congress based on 18 U.S. Code Section 1512(c)(2), or “Tampering with a witness, victim, or an informant.”
This is an evidence-tampering provision that’s part of the Sarbanes-Oxley Act, which experts say was conceived largely to curb wrongdoing on Wall Street—but is now used by the Department of Justice (DOJ) in Jan. 6 cases.
Mr. Fischer challenged the obstruction charge, claiming that 1512(c)(2) does not prohibit his alleged conduct on Jan. 6. A district court agreed but the U.S. Court of Appeals for the D.C. circuit reversed that decision, siding with a broader reading of the provision, namely that it applies other forms of obstructive conduct, not just ones related to investigations and evidence.
While it’s unclear when the Supreme Court will hold the first hearings in Mr. Fischer’s appeal, several legal experts told The Epoch Times in earlier interviews that the high court is likely to find that 1512(c)(2) is being improperly used against Jan. 6 defendants.
If the challenge proves successful, the Supreme Court’s decision could have far-reaching consequences, potentially erasing some charges against President Trump and overturning felony convictions for numerous Jan. 6 defendants.
The implications extend beyond individual cases to the core strategy employed by the Justice Department (DOJ) in securing convictions.
Meanwhile, the fact that the Supreme Court has agreed to hear Mr. Fischer’s challenge to the provision is already having an impact on some Jan. 6 cases.
Since the Supreme Court agreed in mid-December to take up the Fischer appeal, a number of Jan. 6 defendants have asked judges to pause their trials and sentencing proceedings pending the outcome of the case.
One of these is John Strand, a former underwear model convicted of obstructing Congress on the basis of 1512(c)(2), who describes himself as a “political prisoner.” He was sentenced to 32 months in prison.
On Jan. 19, Mr. Strand’s attorneys filed a motion for release pending the Fischer appeal and a motion for reduction of sentence based on the zero-point offender guideline, which gives defendants with no criminal history an extra two points off their sentencing calculations, court filings show.
The DOJ has taken the position that Jan. 6 defendants are ineligible for sentence reduction on the basis of the zero-point offender guideline, which has some exceptions, including for violent crimes.
Noteworthy in Mr. Strand’s filing is the singling out of the obstruction charge, which in his case is the only felony he’s been found guilty of.
“In particular, a substantial question exists as to whether the statute underlying Strand’s sole felony conviction, 18 U.S.C. § 1512(c)(2), applies to his conduct on January 6, 2021, in light of the Supreme Court’s recent decision to grant certiorari in United States v. Fischer.”
While it’s too early to know whether the judge in Mr. Strand’s case will side with his request to reduce his sentence, several other Jan. 6 defendants have won early release based on the Supreme Court’s decision to review the Fischer case.
Last week, a federal judge ordered the early release of Thomas Adams, who was found guilty of two counts for his role on Jan. 6, including the obstruction charge, his sole felony.
U.S. District Judge Amit Mehta noted in his Jan. 10 order that Mr. Adams would probably have received a lighter sentence than the 14 months he was given (in addition to 36 months of supervised release) absent the obstruction charge.
While prosecutors argued Mr. Adams should be kept in jail, the judge disagreed, saying that the Supreme Court’s decision to take up the case suggests the outcome is a “close question” at a minimum.
One day after Judge Mehta ordered Mr. Adams to go free, U.S. District Judge John Bates ordered the release of Alexander Sheppard, who was previously sentenced to 19 months in prison for several misdemeanors and one felony (the obstruction charge).
Mr. Adams’s attorneys asked that he be released from prison at the end of his misdemeanor convictions, citing the pending Fischer appeal. The judge agreed, with the caveat that if the Supreme Court rules against Mr. Fischer and upholds his sentencing based on the obstruction charge, Mr. Sheppard may be required to serve out his full sentence.
“The Court will order Sheppard released after he has served six months in prison—on May 2, 2024. The parties shall contact the Court within three days of the Supreme Court issuing its decision in Fischer with their positions as to what if any further proceedings are necessary,” Judge Bates wrote in his order.
“The Court may ultimately conclude that a further period of incarceration is warranted upon a potential remand after a decision in Fischer,” the judge added.
Three other federal judges have postponed pending Jan. 6 cases in which obstruction is the only felony charge, according to Politic, which cited a spokeswoman for the U.S. attorney’s office in Washington as saying that around 100 Jan. 6 defendants face charges in which 1512(c)(2) is the only felony charge.
The same law challenged by Mr. Fischer is instrumental in charges against President Trump. Should the Supreme Court limit or disagree with the Justice Department, it could have a significant impact on the former president’s trial, currently set for March, potentially leading to a retrial.
Defense lawyer Kira Anne West, who has been involved in more than 50 Jan. 6 cases, has accused the Justice Department of overreach in prosecuting some of the approximately 1,300 Jan. 6 cases.
Ms. West, who volunteered to defend dozens of Jan. 6 defendants, said during a recent C-SPAN “Booknotes” podcast that most of her Jan. 6 clients had neither a criminal history nor did they engage in any violence that day.
“Some simply went into the building, turned around, and went out,” she said. “Many were in for a very short period of time, less than 20 minutes. Yet the government is charging them with felony charges that you can get up to 20 years in prison for. That makes absolutely no sense to me.”
She said it’s unusual for so many minor cases to go to federal trial, calling it a waste of money.
“I think in my whole career, I’ve had one misdemeanor case in federal court before Jan. 6. Now, I have tons of them,” Ms. West said.
While she did not downplay whatever violence took place that day, saying it was a “serious crime” for people to attack police officers, she did say she saw the Biden administration’s approach to Jan. 6 cases part of a longstanding pattern of federal “overreach.”
“What I’ve experienced as a defense lawyer, which I’ve experienced for years, is that there is quite a bit of government overreach as far as who they’re prosecuting and what they’re charging them with,” she said.
Jim Burling, vice president of legal affairs for the Pacific Legal Foundation, a nonprofit public interest law firm that challenges government abuses, told The Epoch Times in a recent interview that it is “utterly absurd” for the Biden administration to charge Jan. 6 protesters with the felony obstruction charge that carries a 20 year sentence.
“I think both the liberals and the conservatives on the Supreme Court are going to be very wary of this overcharging,” he said of the Fischer case that the high court will weigh.
Matthew Vadum contributed to this report.
I hope the J6R’s can sue the guards and the wardens personally for their treatment. It’s one thing to send them to prison, but their treatment in prison has been horrendous and it’s been with permission of the guards and wardens.
Fixed.
The implications extend beyond individual cases to the core strategy employed by the Justice Department (DOJ) in securing convictions to oppress opposing views and try to secure power for the corrupt Deep State of which the DoJ is clearly a part.
Fixed again.
One would suspect that the SCOTUS judges understand that what’s been happening since DJT went down that escalator in 2015 is a concerted conspiracy to use false charges and accusations in order to neutralize him...a lot like in the way they operate in banana republics.
Well Sarbox should be thrown out as it is crap law. Like to see all of these felonies be cancelled cuz at the end of the day it is free speech and right of assembly, petition.
There all gonna be sprung when Trump gets back.
Meanwhile, all the looters and burners are still running around free as birds.
Finally, the Supreme Court gets involved, albeit two years after the commencement of the J6 political witch hunt!
J6 is clearly a massive sham.
At some point I hope many heads roll when the air clears.
Note the protests at the White House, as violent as they
have been in recent days, and there is no call at all to
treat them like J6.
We have very devious people on the Left that have no
limits to what they would do.
Has anyone been charged with insurrection?
Has anyone been convicted of insurrection?
📌
Not even a top 1000 issue here.
Bookmark
CONCERNS OF OVEREACH!? How about FBI collusion with the democratic party
AMEN!
Amen. I stand in agreement with this
“The obstruction of Congress charge—which carries a sentence of up to 20 years in prison—is the most widely charged felony in Jan. 6 cases”
How about the “obstruction of the executive branch” by the Russia collusion hoax? When are they being charged? Starting with Hillary, they ALL knew it was a hoax yet went through with the fake investigation anyway for THREE YEARS!! Three years of hindering, obstructing, a sitting President.
No.
No.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.