Amicus Brief: Legal Experts Urge SCOTUS To Reject Incorrect Claim Of What Constitutes Obstruction In Jan. 6 Case
In an amicus brief filed Wednesday with the Supreme Court, 11 leading legal experts explained why the Court should reject the claim made by the petitioner in Fischer v. United States, a case related to the January 6 criminal prosecutions, that raises the issue of what constitutes obstructing, influencing, or impeding an official proceeding under 18 U.S.C. § Section 1512(c)(2).
The statute, created in response to the Enron scandal, makes it a crime to “obstruct, influence, or impede any official proceeding.”
As the amicus brief filed Wednesday states: The statute “makes clear that it covers all conduct that corruptly obstructs, influences, or impedes an official proceeding.”
In contrast to this straightforward reading of the statute, the brief continues, “petitioner proposes an invented reinterpretation of the text according to which only a small subset of corrupt obstruction of an official proceeding qualifies: conduct that achieves its corrupt purpose by affecting the availability or integrity of evidence for use in that official proceeding.”
Joseph W. Fischer, the petitioner in the case, argues that his actions as part of the mob attack on the Capitol on January 6, 2021 – including a physical encounter with police and entering the Capitol as part of the violent effort to stop the certification of the 2020 election results – did not meet that very narrow reading of the statute. The D.C. Circuit Court of Appeals correctly rejected his interpretation and Fischer appealed to the Supreme Court.
The amici on the brief filed include former prosecutors, elected officials, other government officials, and constitutional lawyers who have collectively spent decades defending the Constitution, the interests of the American people, and the rule of law. They include:
>> Laurence Tribe, Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard;
>> Ty Cobb, former special counsel to the President in the Trump Administration;
>> Philip Allen Lacovara, Deputy Solicitor General in the Nixon Administration, and Counsel to the Special Prosecutor, Watergate Special Prosecutor’s Office;
>> Fern Smith, former U.S. District Court Judge, Northern District of California, appointed by President Reagan;
>> George Conway, attorney and Board President of the Society for the Rule of Law; and
>> former Massachusetts Governor William Weld.
(See full list of amici here.)
The brief was written by Matthew A. Seligman, Partner, Stris & Maher LLP; Democracy 21 Education Fund President Fred Wertheimer; and E. Danya Perry, Joshua Stanton, and Victoria Recalde Feldman, all of Perry Law.
The brief outlines in detail two key legal arguments:
1) Section 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding; and
2) Petitioner’s proposed evidence impairment interpretation improperly excludes corrupt obstruction that falls within Section 1512(c)(2)’s scope.
According to the brief:
“Even if petitioner were correct that Section 1512(c)(2) covers less than its text commands, the narrowing construction he suggests is incorrect. His proposed evidence impairment interpretation of Section 1512(c)(2) improperly excludes corrupt obstructive conduct that indisputably falls within the statute’s scope. […] The statutory text, the history of its application, and this Court’s cases demonstrate that—at a bare minimum—Section 1512(c)(2) encompasses all conduct that corruptly interferes with official proceedings to thwart their proper functioning, regardless of the particular means the defendant corruptly employs to achieve that interference.
“For these reasons, the Court should reject petitioner’s unwarranted interpretation to hold that Section 1512(c)(2) applies to all conduct that corruptly interferes with official proceedings.”
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