The cat came out of the bag at the United States Supreme Court on Tuesday.
Since the early summer of 2020, when surfers alone in the ocean were chased by police and protesters who set cities on fire were declared “mostly peaceful,” it has seemed that equal justice under law has been torn out of the Constitution and kicked to the curb.
More than a thousand people have been criminally charged in connection with their actions at the U.S. Capitol on Jan. 6. The government has been relentlessly hunting down misdemeanor offenders for years as if they were Nazi war criminals hiding in Argentina.
Justice Department prosecutors have used a particular provision in the law to charge more than 300 Jan. 6 defendants with a felony that carries a prison sentence of up to 20 years, much longer than the maximum sentences for nonviolent, protest-related misdemeanors such as civil disobedience in a restricted space.
The law is 18 U.S.C. Section 1512(c)(2). It was passed after the Enron accounting scandal as part of the Sarbanes-Oxley Act of 2002. Congress discovered that the law didn’t prohibit people from destroying their own records to foil an investigation and wrote this to close that loophole:
“Whoever corruptly — (1) 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 (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Joseph Fischer was charged with various misdemeanors related to his presence at the Capitol on Jan. 6, and he was also charged with violating Section 1512(c)(2), obstructing an official proceeding. A U.S. district court judge threw out that charge, but an appeals court reinstated it. That’s when the Supreme Court stepped in.
On Tuesday the court heard oral arguments in the case. The justices grilled the government’s lawyer like a plate of raw meat at a Fourth of July barbeque.
“There have been many violent protests that have interfered with proceedings. Has the government applied this provision to other protests in the past, and has this been the government’s position throughout the lifespan of this statute?” Justice Clarence Thomas asked, and also, “Have you enforced it in this manner?”
U.S. Solicitor General Elizabeth Prelogar answered that there hadn’t been another case that involved violently storming a building to stop an official proceeding.
There was a technical legal discussion of whether the law’s two parts could be applied separately, but Chief Justice John Roberts indicated that the issue was already settled.
“I’m sure you’ve had a chance to read our opinion released Friday in the Bissonnette case,” he told Prelogar. “It was unanimous. It was very short.”
He explained that the doctrine applied by the court in that case meant that “the specific terms ‘alters, destroy and mutilate’ carry forward into (2), and the terms ‘record, document or other objects’ carry forward into (2) as well” and that they “control and define the more general term.”
It sounded like the chief justice was saying Section 1512(c)(2) can’t be lifted out of context to arbitrarily add 20-year maximum sentences to other kinds of obstruction of other kinds of proceedings.
“You can’t just tack it on and say look at it as if it’s standing alone because it’s not,” he told Prelogar.
Justice Neil Gorsuch inquired about some not-hypothetical scenarios. Would Section 1512(c)(2) apply to “a sit-in that disrupts a trial or access to a federal courthouse?” he asked. “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
And that’s when the cat began to crawl out of the bag. Prelogar tried to explain that only “meaningful interference” qualifies, not some “minor disruption or delay,” and prosecutors have to “prove that they acted corruptly.”
“So a mostly peaceful protest,” Gorsuch said, “that actually obstructs and impedes an official proceeding for an indefinite period would not be covered?”
Justices Brett Kavanaugh and Samuel Alito drilled and grilled further until the Solicitor General finally let the cat all the way out of the bag and explained the lack of 1512(c)(2) charges in those other cases.
“If people are engaging in conduct that maybe they think is constitutionally protected, they might be wrong about that, there might not be a First Amendment right that they think they have, but that can demonstrate that they don’t have the requisite consciousness of wrongdoing,” she said. “That would mean we couldn’t prove an obstruction charge.”
Do prosecutors determine “consciousness of wrongdoing” by passing judgment on what the individual has said or written about the substance of the protest? Are anti-police protests righteous while election integrity protests are wrongful?
Joseph Fischer’s attorney, Jeffrey Green, told the justices that allowing the government to “unleash a 20-year maximum penalty on potential peaceful protests” will “chill” protected activities. “People are going to worry about the kind of protests they engage in, even if they’re peaceful, because the government has this weapon,” he said.
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Your First Amendment rights cannot be dependent on a prosecutor’s subjective opinion of the virtue of your political views. If that’s what defines “corruptly” and “intent,” and that’s what puts you at risk of 20 years in prison, then the First Amendment isn’t worth the parchment it’s printed on.
A Supreme Court ruling that Section 1512(c)(2) has been misapplied in the Jan. 6 cases could give hundreds of defendants new opportunities to challenge past sentences, plea bargains or charges that they’re still facing. Former President Donald Trump is one of those defendants.
However, this issue has now gone far beyond Trump. The Constitution does not permit the government to treat Americans unequally based on whether their speech is acceptable to the government. That seems to be the policy of the U.S. Department of Justice. The Supreme Court should do everything possible to put a stop to it.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley