On Monday, the Interim U.S. Attorney for the District of Columbia, Ed Martin, announced that his office would undertake a review of the decision-making that led to the charging of hundreds of January 6 protesters with “obstructing Congress” in violation of 18 U.S.C. Sec. 1512(c). That was a statute passed by Congress in 2005 to address an alleged hole revealed in an obstruction of justice statute criminalizing the destruction of records, documents, materials, etc., to obstruct an investigation. The “hole” was the fact that the language of the existing statute made it a crime to direct third parties to undertake such obstructive acts, but it did not – by its plain language – make it a criminal act to take such action yourself.
This was the finding of the Supreme Court in Arthur Andersen v. United States, an infamous case related to the Enron scandal where then-U.S. Attorney Andrew Weissmann put one of the “Big 5” accounting firms out of business – costing maybe 80,000 Arthur Andersen employees their jobs – only to eventually be reversed by the Supreme Court in a 9-0 decision.
The crime that Arthur Andersen supposedly committed? It followed its internal policy for destroying client records – Enron in this case – before it received a federal grand jury subpoena for those records as part of the probe into Enron’s accounting practices. Arthur Andersen was charged under Sec. 1512(b)(2) – there was no subsection (c) at that time – which made it a crime to “knowingly [and] … corruptly persuade another person … with intent to … cause” that person to “withhold” or “alter” documents intended for use in an “official proceeding.”
To get around the problem of Enron not having instructed Arthur Andersen to shred documents, Weissmann and crew focused on Arthur Andersen’s management directing Arthur Andersen employees to shred Enron documents. But no one at Arthur Andersen knew Enron was under investigation.
Ultimately, the Supreme Court’s decision was that because Arthur Andersen was following its internal policy, and was not aware the records were relevant to a federal grand jury investigation, it could not have acted “corruptly” in directing its employees to destroy Enron’s records.
It was in response to this decision that Congress created Sec. 1512(c)(1-2). The new statute began, “Whoever … engages in acts set forth in the statute….” The new subsection (c) wasn’t limited to directions given to others to take the unlawful action — a defendant could now be prosecuted for his/her own “corrupt” acts that interfered with an official proceeding. By inserting this provision into the middle of an existing obstruction of justice statute, any violation became subject to the same potential maximum sentence of 20 years.
The Biden DOJ decided to use this new statute against hundreds of non-violent January 6 defendants when there was no evidence of another felony it could charge and was often used in the absence of any illegal activity other than simply going inside the Capitol.
So, shredding all the documents of an international corporation under grand jury investigation = possible 20-year prison sentence.
Walking through the Capitol building participating in chants/cheers such as “Whose House, Our House” after Congress had adjourned, but by doing so preventing Congress from reconvening = possible 20-year prison sentence.
There is a second problem involved that goes beyond the question of, “How did this statute come to be the “go-to” felony for otherwise non-violent protesters?” That bigger question is, “Who came up with the solution to, ‘How do we get around the problem that the new statute targets evidence destruction and not simply disruptive conduct such as happened January 6?'”
Section 1512(c) has two subsections that follow “Whoever corruptly”:
- 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
- otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so ….
January 6 defendants were charged under (c)(2) based on a reading of “otherwise obstructs, influences, or impedes” as an all-encompassing “catch-all” provision that covers any conduct obstructing Congress, and was independent of the Sec. 1512(c)(1)’s references to “records,” “documents,” “witnesses,” etc. The Biden DOJ viewed (c)(2) as a “dragnet” — criminalizing just about any conduct on January 6 that the Biden DOJ thought interfered with Congress that day.
But last summer, in Fischer v. United States, the Supreme Court held that Sec. 1512(c)(2) was never meant by Congress to be a “dragnet” statute as it was used by the Biden DOJ, and was inapplicable to the events of January 6. But the Biden DOJ had already used that statute to secure hundreds of guilty pleas or convictions at trial, largely resulting in sentences from 4-6 years.
And the Supreme Court said the Biden DOJ had been wrong in doing so from the very start.
READ MORE: DOJ Is Dropping Nearly Half of the J6 Obstruction Charges
The issue that U.S. Attorney Ed Martin needs to address is where the dishonest legal reasoning came from that was relied upon to justify the use of Sec. (c)(2) as a “dragnet” that would survive Supreme Court scrutiny. Over the 16 years between the passage of Sec. 1512(c) in 2005 and the events of January 6, the Supreme Court has repeatedly struck down criminal convictions because of over-expansive uses of statutes by DOJ in the area of “obstruction of justice.” The Biden DOJ had to ignore that line or cases to conclude that the boundless use of Section 1512(c)(2) as a dragnet was legal.
Who was responsible for that decision? That’s what U.S. Attorney Ed Martin wants to find out.
READ MORE: Justice Department Launches ‘Special Project’ to Investigate J6 Prosecutors
It is beyond this particular column to go through each of the six Supreme Court cases between 2005 and 2021 in detail, but here is a brief passage(s) from each SCOTUS opinion that should have prevented the Biden DOJ from engaging in abusive prosecutorial tactics by using Sec. 1512(c)(2):
United States v. Arthur Andersen (2005) — Conviction reversed 9-0.
It is, however, one thing to say that a proceeding “need not be pending or about to be instituted at the time of the offense,” and quite another to say a proceeding need not even be foreseen. A “knowingly … corrupt persuader” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.
United States v. Skilling (2010) — conviction reversed 6-3.
It has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction…. We have accordingly instructed “the federal courts … to avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible….”
… The “vast majority” of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes….
In view of this history, there is no doubt that Congress intended § 1346 to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine. To preserve the statute without transgressing constitutional limitations, we now hold that §1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.
Yates v. United States (2015) — conviction reversed 5-4.
The words of § 1519 [an obstruction statute], the Government argues, support reading the provision as a general ban on the spoliation of evidence, covering all physical items that might be relevant to any matter under federal investigation.
Yates urges a contextual reading of § 1519, tying “tangible object” to the surrounding words…. Section 1519, he maintains, targets not all manner of evidence, but records, documents, and tangible objects used to preserve them, e.g., computers, servers, and other media on which information is stored.
We agree with Yates and reject the Government’s unrestrained reading. “Tangible object” in § 1519, we conclude, is better read to cover only objects one can use to record or preserve information, not all objects in the physical world.
United States v. McDonnell (2016) — Conviction reversed 8-0.
According to the Government, “Congress used intentionally broad language” in § 201(a)(3) to embrace “any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.” … The Government concludes that the term “official act” therefore encompasses nearly any activity by a public official.
[W]e conclude that a “question” or “matter” must be similar in nature to a “cause, suit, proceeding or controversy.” Because a typical meeting, call, or event arranged by a public official is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not qualify as a “question” or “matter” under § 201(a)(3).
Under the “‘standardless sweep’” of the Government’s reading, public officials could be subject to prosecution, without fair notice, for the most prosaic interactions. “Invoking so shapeless a provision to condemn someone to prison” for up to 15 years raises the serious concern that the provision “does not comport with the Constitution’s guarantee of due process.”
Kelly v. United States (2020) — Conviction reversed 9-0.
The wire fraud statute thus prohibits only deceptive “schemes to deprive [the victim of] money or property.” Similarly, the federal-program fraud statute bars “obtain[ing] by fraud” the “property” (including money) of a federally funded program or entity like the Port Authority. So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an “object of the[ir] fraud [was] ‘property.’”
That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials….
If U. S. Attorneys could prosecute as property fraud every lie a state or local official tells in making such a decision, the result would be … “a sweeping expansion of federal criminal jurisdiction….” In effect, the Federal Government could use the criminal law to enforce integrity in broad swaths of state and local policymaking.
United States v. Percoco (2023) — Conviction reversed 9-0.
And we observed that “[i]n the main, the pre-McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kick-backs supplied by a third party who had not been deceived.” We reasoned that those engaging in such schemes had sufficient reason to know that their conduct was proscribed…. But Skilling was careful to avoid giving § 1346 an indeterminate breadth that would sweep in any conception of “intangible rights of honest services” recognized by some courts prior to McNally.
What is also significant about each of the cases listed above is that the convictions in each case were affirmed by the federal Appeals Court — just like Joseph Fischer’s conviction was affirmed — before the convictions were reversed by the Supreme Court, and those reversals were unanimous in almost every case.
This unbroken line of decisions by the Supreme Court should have been warning enough to Biden DOJ prosecutors who decided to charge hundreds of January 6 protesters with a felony using a novel legal theory under a new statute.
Some involved in making that decision may now pay a price for having done with their jobs – and rightly so.
