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“If the Biden DOJ’s adventurism is allowed to stand, it will permanently change the ability of the government to suppress the rights of American citizens,” Jonathon Moseley told The Epoch Times. “Every American will be at the whim of any prosecutor to terrorize them.”
Retired Harvard law professor Alan Dershowitz said the protests at the Capitol were protected First Amendment demonstrations.
“Look, these were not obstructions of justice,” Mr. Dershowitz told Newsmax on Dec. 15. “These were attempts to exercise First Amendment rights to petition the government for a redress of grievances. Some of the people went too far and destroyed property, but those people who just tried to influence the congressional hearings were exercising their constitutional right.”
Edward Tarpley, a defense attorney who represented Rhodes in the first Oath Keepers trial in 2022, said the Supreme Court’s decision to hear the appeal is a “tremendous victory.”
“Virtually everyone agrees that this statute was never intended to be used the way the DOJ has used it against the January 6 defendants,” Tarpley told The Epoch Times.
The statute was enacted by Congress in 2002 as the Sarbanes-Oxley Act. It was intended to close a loophole that hindered prosecutions in the Enron and Arthur Andersen financial fraud cases. The previous version of §1512 only involved actions directed at other persons, not documents or evidence.
Defense attorney Joseph McBride believes the DOJ’s novel use of the law is based on “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?”McBride said. “I’ll tell you, absolutely nothing.”
That was the view taken by U.S. District Judge Carl Nichols, who threw out the obstruction charge filed against Mr. Fischer and defendants Edward Jacob Lang, 28, of New York, and Garret A. Miller, 37, of Texas. Miller and Lang filed similar petitions of appeal with the Supreme Court, but the justices agreed to take up only the Fischer case.
In a March 2022 memorandum opinion, Judge Nichols said the charge against Miller “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. Miller, however, is not alleged to have taken such action.”
Judge Nichols said he was faced with a “serious ambiguity in a criminal statute.” Federal courts have traditionally exercised restraint when evaluating the reach of a statute and applied the rule of lenity to resolve any ambiguity in favor of the defendant, he said.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit muddied the waters in April 2023 with a fractured 1-1-1 decision. Only a partial concurrence by one of the judges appeared to reverse Judge Nichols and uphold the DOJ’s broad interpretation of the law.
Among the complicating issues in the case is the lack of a definition for the term “corruptly” and whether the term “otherwise” in §1512(c)(2) refers to conduct listed in §1512(c)(1)—altering, destroying, mutilating, or concealing a record, document, or other object—or has a much broader meaning.
Judge Nichols concluded that “legislative history supports a narrow reading of subsection (c)(2).”
The court is likely to hear arguments in the case during its spring term.