On Tuesday, April 16, many January 6 defendants had a shot of relief from the Supreme Court in the case Fischer v. United States. Novel applications of the law that punish a political adversary must always be suspect. It appears to have become more commonplace, however, not only for the former president but also for his supporters. Those who broke the law, trespassed, and worse at the Capitol on Jan. 6, 2021, were charged with evidence preservation crimes. Why? Perhaps to crush them with sentences that are far longer than what otherwise would be possible.
Violating a federal law restricting building access, for instance, carries a one-year sentence upon conviction – if no gun were used. However, the statute the government used in a new way, come with a sentence of 20 years! It's a big reason why Biden's prosecutors were able to get such long sentences for MAGA defendants.
The federal government used a statute here that was enacted after the Enron scandal. Congress enacted a law -- 18 U.S. Code § 1512(c)(2) Tampering with a witness, victim, or an informant -- "in the wake of the large-scale destruction of Enron's financial documents." As Mr. Joseph Fischer's lawyer, Jeffrey T. Green, put it:
"Until the January 6th prosecutions, Section 1512(c)(2), the ‘otherwise’ provision, had never been used to prosecute anything other than evidence tampering, and that was for good reason …
"The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxley-based, Enron-driven evidence-tampering statute is not one of them."
It's a big reason why Biden's prosecutors were able to get such long sentences for MAGA defendants.
Fischer heard Trump speak at the Ellipse that morning. Then, after going home, Fischer returned to the area and entered the Capitol at 3:25 p.m. -- after Congress had recessed. He simply walked inside. He exited four minutes later when he and others were pepper-sprayed. Yet he was charged with violating a law prohibiting any act that "obstructs, influences, or impedes any official proceeding, or attempts to do so."
What's Enron Got to Do With It?
Congress enacted a law -- 18 U.S. Code § 1512(c)(2) Tampering with a witness, victim, or an informant -- "in the wake of the large-scale destruction of Enron's financial documents." As Fischer's lawyer, Jeffrey T. Green, put it:
"Until the January 6th prosecutions, Section 1512(c)(2), the ‘otherwise’ provision, had never been used to prosecute anything other than evidence tampering, and that was for good reason …
"The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxley-based, Enron-driven evidence-tampering statute is not one of them."
Green's arguments seemed to get a charitable reception from the Court's conservatives, especially Justice Neil Gorsuch. He used the phrase "mostly peaceful" in what surely was a dig against the government for its kid-glove treatment of those who rioted in and shut down city centers for much of the summer in 2020. The justice also asked about pulling a fire alarm to frustrate congressional proceedings, an obvious allusion to Rep. Jamaal Bowman (D-NY), who pled guilty to falsely triggering a fire alarm to stop a vote on a spending bill. He was not charged with any federal crime.
The case is expected to be decided by the end of June, after which the Court takes a long break until the fall.
