Supreme Court Accepts Case Challenging Jan. 6 Obstruction Charges

United States Supreme Court Justices pose for their official portrait at the Supreme Court in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The U.S. Supreme Court will take up a Jan. 6 defendant’s appeal of the Department of Justice’s novel use of evidence-tampering law to prosecute hundreds of defendants for obstruction of Congress.

A miscellaneous order released by the high court on Dec. 13 granted the petition of Joseph Wayne Fischer, challenging the most widely charged felony in Jan. 6 cases, which carries up to 20 years in prison.

The Fischer case is one of three identical petitions for case review by Jan. 6 defendants who were charged with corruptly obstructing an official proceeding, namely a joint session of Congress convened for the counting and certification of Electoral College votes on Jan. 6, 2021.

The DOJ had charged nearly 330 defendants and former President Donald Trump with obstruction as of Dec. 6.

President Trump was charged in August with several counts related to obstruction of the joint session of Congress on Jan. 6. A grand jury indicted him for obstruction of an official proceeding, attempting to obstruct an official proceeding, and conspiracy to obstruct an official proceeding, among other counts.

Defendant Thomas Caldwell, who was tried in the same case as Oath Keepers founder Stewart Rhodes and three other Oath Keepers, asked U.S. District Judge Amit Mehta to suspend his sentencing hearing until the Supreme Court resolves the obstruction case.

“The government is requesting a 14-year sentence for Caldwell based almost entirely upon his finding of guilt as to Count 4 [obstruction],” defense attorney David Fischer wrote in the motion for delay. “Additionally, Caldwell’s potentially high sentencing guidelines are driven almost entirely by Count 4.”

Defense attorney William Shipley predicted that the Supreme Court’s decision to take up the obstruction case would put an end to the D.C. prosecution of President Trump.

“The decision by SCOTUS today to take up the appeal on the 1512 ‘obstruction of an official proceeding’ case means the Trump D.C. case will not be going to trial,” Mr. Shipley wrote on X, formerly known as Twitter. “This is the easy way to make that happen without directly acting on the Trump case on an expedited basis.”

Marina Medvin, a defense attorney who co-authored a friend-of-the-court brief supporting the challenge of the DOJ’s prosecutions, said the 327 cases at issue should never have been felonies.

“If the case turns in favor of the defendants, this will be life-altering for hundreds of people who were unjustly persecuted for a felony offense instead of the misdemeanor that was crafted by Congress for the trespass behavior at issue,” Ms. Medvin wrote on X.

Fritz Ulrich, a federal public defender who represents Mr. Fischer and filed the Supreme Court petition, told The Epoch Times, “We’re very happy that the court has decided to clarify the scope of Section 1512(c)(2).”

Mr. Fischer’s petition was joined by petitions by defendants Edward Jacob Lang and Garret Miller.

An amicus curiae brief filed by the FormerFedsGroup Freedom Foundation said the co-opted evidence-tampering law “means whatever a creative prosecutor lacking caution wishes it to mean.”

“To be charged is to be convicted because the criminal charge has no fixed meaning,” attorneys Thomas Renz and Bradford Geyer wrote in a 61-page brief filed with the Supreme Court on Sept. 29.

The FormerFedsGroup brief follows an amici curiae brief filed on Aug. 30 by attorneys for three other Jan. 6 defendants—Christopher J. Warnagiris, 43, Christopher J. Carnell, 21, and William Robert Norwood III, 40.

“The tide has turned,” William Pope of Topeka, Kansas—a defendant charged with obstruction—wrote on X.

“The Supreme Court taking up the obstruction of an official proceeding appeal is a clear message to the DOJ that government extremism has gone too far; that more than three hundred Americans, including President Trump, myself, and many currently in prison, were wrongfully charged,” Mr. Pope wrote.

“Sadly, the DOJ has for the last three years used the obstruction charge—which the Supreme Court is now primed to throw out—to pressure January 6 defendants into taking bad plea deals,” he wrote. “The outcomes of many cases would be far different if not for this DOJ malpractice.”

Rachel Powell, a Jan. 6 defendant sentenced to 57 months in prison for obstruction and other counts, said she cried at the announcement.

“I read this and couldn’t stop the tears from flooding,” Ms. Powell wrote on X. “This could be life-changing for my family.”

The same jurist—U.S. District Judge Carl Nichols—threw out the 18 U.S. Code Section 1512(c)(2) charges in the cases of Mr. Fischer, Mr. Lang, and Mr. Miller. Most other judges in the D.C. Circuit upheld the charges.

Judge Nichols said the statute doesn’t apply to the Jan. 6 prosecutions because the cases don’t involve evidence tampering.

Judge Nichols wrote that it “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”

Judge Nichols threw out the obstruction charge against Mr. Miller on March 7, 2022, Mr. Fischer on March 17, 2022, and Mr. Lang on June 7, 2022.

The current version of the 1512 statute was approved by Congress to close a loophole in cases involving evidence tampering. This came in the wake of the Enron accounting and fraud scandals.

“Congress was faced with a very specific loophole: that then-existing criminal statutes made it illegal to cause or induce another person to destroy documents, but did not make it illegal to do so by oneself,” Judge Nichols wrote in a March 2022 memorandum opinion. “Congress closed that loop by passing subsection (c), and nothing in the legislative history suggests a broader purpose than that.”

Columnist Julie Kelly said she can’t see a scenario in which the Supreme Court upholds the unusual use of the law in Jan. 6 cases.

“Hard to overstate the total humiliation of DOJ and 15 D.C. district court judges who upheld 1512c2,” Ms. Kelly wrote on X. “Only one—Judge Carl Nichols—dismissed the count in 3 cases. The beauty here is that DOJ appealed Nichols. If DOJ would’ve left it alone, this wouldn’t be at SCOTUS now.”

The severe prison time that comes with conviction on the obstruction charge was a major factor in the 2022 suicide of defendant Matthew Perna, his aunt said.

Mr. Perna, 37, hanged himself in the garage of his Sharon, Pennsylvania, home after learning that the DOJ would seek even more prison time via sentencing enhancements for terrorism.

“I am hopeful and disgusted at the same time,” Geri Perna said in a statement to The Epoch Times after the Supreme Court announcement.

“When my nephew Matthew was charged with the four misdemeanors after January 6, we all thought that this would result in a fine and community service, as most misdemeanors do,” Ms. Perna said. “But when he was later charged with the felony of obstruction, his entire case took a huge turn for the worse.”

Defense attorney Joseph McBride said the novel use of Section 1512(c)(2) by the DOJ is rooted in “corruption and political hatred.”

“For the love of God, what do the Sarbanes-Oxley Act and election-related protests have to do with each other?” Mr. McBride said in a statement to The Epoch Times, referring to the 2002 act that created the 1512 statute. “I’ll tell you: absolutely nothing.

“Were protestors running around capturing ballots or shredding documents to obstruct an official proceeding on January 6, 2021? No, they most certainly were not. So how is it that a law designed to prosecute white-collar document shredders was applied to a bunch of blue-collar J6 protestors?”