Freedom

By Tom Ozimek

A recent 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 breach.

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 offenses for his role in the Jan. 6 incident, including obstruction of law enforcement during a 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.”

That’s 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 Justice Department (DOJ) to prosecute Jan. 6 cases.

Mr. Fischer challenged the obstruction charge, claiming that 1512(c)(2) doesn’t 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 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 effect on some Jan. 6 cases.

Challenges Based on Supreme Court Review

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,” it reads.

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.

Early Release and Postponement

A federal judge on Jan. 10 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 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 prison, 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.”

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Three other federal judges have postponed pending Jan. 6 cases in which obstruction is the only felony charge, according to Politico, which cited a spokeswoman for the U.S. attorney’s office in Washington as saying that about 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 DOJ, it could significantly affect the former president’s trial, currently set for March, potentially leading to a retrial.

Concerns About Overreach

Defense lawyer Kira Anne West, who has been involved in more than 50 Jan. 6 cases, has accused the DOJ of overreach in prosecuting some of the about 1,300 Jan. 6 cases.

Ms. West, who volunteered to defend dozens of Jan. 6 defendants, said during a recent episode of C-SPAN’s “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” in the Fischer case.