In Search of Justice for January 6ers

Brent E. Zepke, Esq.

Has there been justice for those arrested for obstructing justice during the events at the U.S. Capitol on January 6, 2021; i.e., January 6ers?

The Department of Justice (DOJ), led by FBI Director Christopher Wray, and Attorney General Merrick Garland, charged, arrested, prosecuted, and jailed hundreds, including Joseph Fischer, for obstructing justice.

They arrested so many that they had to construct a jail just for them.

The Federal District Court in D.C. lack enough judges to process the estimated 1,561 arrested and that was compounded by many of them declining to come to court during Covid.

Apparently, those judges were unconcerned about the admonishment of the former Prime Minister of the United Kingdom William E. Gladstone (1809-1898) that “Justice delayed is justice denied.”

Some J6ers avoided the delays by plea bargaining, but the potential 20-year sentence discouraged bargaining for those charged with obstruction of justice.

Obstruction of Justice

Obstruction of justice is the act of intentionally interfering with the legal system or a criminal investigation.

However, the DOJ did not use that definition to charge the J6ers.

Instead, the DOJ charged them with obstruction of justice based on the “Sarbanes-Oxley Act of 2002” (SOX), Public Law 107-204. Specifically, SOXs, at 18 USC 1512, provides that it constitutes a broad prohibition against tampering with a witness, victim, or informant.

1512 (C) provides criminal penalties for anyone who 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.

There were no charges of false filings of financial reports against the J6ers.

How did the DOJ charge them with obstruction?

The DOJ relied on 18 USC 1512 c (2), that provides that “Whoever corruptly 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.”

The Case of Joseph Fischer

Retired Pennsylvania police officers Joseph Fischer, Edward Lang, and Garret Miller were among the 259 J6ers charged with obstruction of justice.

D.C. Federal District Judge Carl J. Nichols, nominated by President Trump, in March 2022 dismissed obstruction charges against three J6er defendants ruling that DOJ prosecutors had improperly separated the portion of the Sarbanes-Oxley Act forbidding obstruction of an official proceeding from evidence tampering provision regarding actions against a “document, record or other object.”

Did the DOJ immediately drop those charges or did the other judges in the D.C. District Court see the error in their ruling differently?

No, the DOJ appealed Judge Nichols ruling and the other judges did not alter their contrary holdings.

Fischer appealed.

In April 2023, D.C. Circuit Judge Florence Y. Pan, and Justin R. Walker, nominated respectively by Presidents Biden and Trump, voted to reverse Judge Nichols by holding that Sarbanes-Oxley covered “All forms of corrupt obstruction of an official proceeding.”

Judge Greg Katsas, nominated by President Trump, dissented.

It was apparent to some of us, including yours truly, that this legal reasoning could not survive the U.S. Supreme Court, since it was doubtful that Joseph Fischer would have the resources to become one of 80 cases – out of 7,000-8,000 petitions a year – that the Supreme Court agrees to hear.

However, Fischer managed to petition the Supreme Court for justice for him and the other 259 defendants either charged, or convicted, of similar charges.

Supreme Court

Justice arrived on June 28, 2024, when Chief Justice John Roberts wrote an opinion that agreed with Judge Nichols, and upheld Judge Nichols’ dismissal of the obstruction charges, in Fischer v United States 603 US–––, with the dashes meaning it was decided too recently to have been assigned a page number.

Five Justices agreed with Chief Justice Roberts that under SOX the government must establish that a defendant “Impaired the availability or integrity” of records, documents, or other objects used in official proceedings.

Justice Amy Barrett, nominated by President Trump, joined by Justices Elena Kagan and Sonia Sotomayor, President Obama’s nominees, dissented by holding that SOX applied to “All forms of corrupt obstruction of an official proceeding” and Congress did not include it in the act because they never thought of it.

“Congress never thought of it” supports Justices Robert’s opinion, since the courts are to interpret but not make law.

President Trump

President Trump was charged by Special Counsel Jack Smith with the same obstruction charge.

D.C. District Judge Tanya Chutkan, nominated by President Obama, denied President Trump’s motion to dismiss the charges based on presidential immunity.

The Supreme Court’s ruling, on July 1, 2024, in Trump v United States, 23-939, that “Under our Constitutional structure of separated powers…entitles a former President to absolute immunity from criminal prosecution for actions within…his constitutional authority,” caused Judge Chutkan to postpone the charges against Trump.

Why not dismiss them?

After postponing, Judge Chutkan permitted Smith to file 180 pages of unproven allegations, much like the Mueller Report, which will be “leaked” to the press.

After the Fischer decision, Judge Chutkan held that the case against Trump be dropped.

Justice

Was justice done for Joseph Fischer?

What about him and the other 258 wrongfully charged with obstruction under SOX, suffering the loss of health, jobs and families, and the right to attend significant events, such as graduations, marriages and deaths, or as former Secretary of Labor Raymond Donovan asked after being acquitted “Which office do I go to get my reputation back?”

Was justice done for J6ers charged with obstruction of justice?

Not really.