WASHINGTON, D.C. – Today, America First Legal (AFL) and Boyden Gray PLLC filed a brief in the Supreme Court of the United States on behalf of Senator Tom Cotton, Representative Jim Jordan, and 21 other Members of Congress in support of Joseph W. Fischer, an American who was subjected to a weaponized criminal prosecution by the Biden Administration for an alleged violation of 18 U.S.C. § 1512(c)(2).
Mr. Fischer was indicted for his alleged participation in events around the entrance of the U.S. Capitol building on January 6, 2021, and charged with a violation of 18 U.S.C. § 1512(c)(2)–a statute passed in the wake of the Enron scandal. Section 1512(c)(2) criminalizes obstruction of official proceedings and carries a maximum 20-year prison sentence–which has made it a desirable statute for the Biden Administration to use to target its perceived political opponents.
Section 1512(c)(2) is buried in a statute prohibiting the destruction or interference with documents and court records. It has never previously been used outside that context. Yet the U.S. Department of Justice has used the risk of serious prison time imposed by this statute as a cudgel to compel January 6 defendants to plead guilty. DOJ has even indicted President Trump using Section 1512(c)(2), even though he was never present at the Capitol on January 6, 2021.
In the brief filed on behalf of Senator Tom Cotton, Representative Jim Jordan, and 21 other Members of Congress, AFL argued against this weaponized, targeted use of a criminal statute for conduct related to January 6th. Specifically, the brief argues that:
- The lower court disregarded and misapplied numerous rules of statutory construction:
- Applying Section 1512(c)(2) beyond its document-based scope renders at least fifteen other statutory provisions completely meaningless.
- The historical context of Section 1512(c)(2) confirms it was adopted to address the destruction and fabrication of court records and evidence.
- The immediately preceding subsection refers exclusively to its documents/evidentiary scope.
- The government’s broad view of Section 1512(c)(2) turns it into a weapon for political prosecution.
- The government’s interpretation would criminalize political conduct. The government can claim that anyone standing in its way–from protestors to lobbyists–has interfered with official proceedings.
- The government has used Section 1512(c)(2) against hundreds of January 6 defendants and has also indicted President Trump using it.
- The government has consistently declined to apply its own interpretation of Section 1512(c)(2) to political sympathizers like Rep. Jamaal Bowman, who pulled a fire alarm to delay a vote; or against protestors who interrupted Rep. Jim Jordan’s field hearing on violence in New York City.
Statement from Gene Hamilton, America First Legal Vice President and General Counsel:
“The Biden Administration’s weaponization of a white-collar crime statute–passed in the aftermath of the Enron accounting scandal–to pursue politically-charged prosecutions against American citizens is the perfect example of what happens when radicals occupy the Department of Justice. There is no justification for this unprecedented power-grab, which is being used to destroy the lives of Americans across the country. Unless the Supreme Court puts an end to this abuse, the Biden Administration will continue its unrighteous crusade,“ said Gene Hamilton.
Read the brief here.
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