The United States Supreme Court is set to decide Fisher v. United States, a case in which January 6 Capitol riot defendant Joseph W. Fisher is challenging a federal felony charge of obstructing an official proceeding. Justices heard oral arguments in the case in mid-April, and are likely to rule by the end of June.
Joe Biden‘s Department of Justice (DOJ) has used the felony charge against over 300 individuals who allegedly participated in the 2021 riot in Washington, D.C. Additionally, the obstruction charge forms the core of DOJ special counsel Jack Smith‘s January 6 prosecution against former President Donald Trump.
Fisher and his attorneys contend the obstruction felony — a provision enacted by the Sarbanes-Oxley Act of 2002 in the wake of the Enron scandal — represents an abusive application of what was supposed to be a statute addressing document destruction in the course of committing a financial crime. U.S. District Judge Carl J. Nichols ruled in Fisher’s favor in March 2022, dismissing the obstruction charge against three of the January 6 defendants. But the federal D.C. Circuit Court of Appeals reversed Nichols’s ruling in a 2-1 decision in April 2023 — setting up the showdown at the U.S. Supreme Court.
SARBANES-OXLEY.
The Sarbanes-Oxley Act was enacted after the 2001 Enron financial accounting fraud scandal, which saw the Texas-headquartered energy firm abruptly declare bankruptcy and dissolve its accounting firm, Arthur Andersen LLP. Congress swiftly moved to address gaps in financial regulations, which they believed allowed Enron executives to perpetrate fraud.
Sarbanes-Oxley passed in June 2002 and contained 11 financial reporting provisions aimed at the board of directors for U.S.-based companies.. Additionally, the bill enacted enhanced charges for private corporations accused of destroying documents to obstruct a federal investigation. The statute, found in 18 U.S.C. § 1512(c)(2), reads:
“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.”
This provision is what Biden’s DOJ used to file enhanced felony charges against the January 6 defendants and former President Trump after congressional proceedings were delayed for a few hours on January 6, 2021.
SCOTUS SHOWDOWN.
April’s oral arguments saw the Supreme Court‘s six originalist justices probe the Biden government over the broad application of Sarbanes-Oxley’s obstruction provision. Justice Brett Kavanaugh challenged the DOJ on why the obstruction charges were needed, pointing out that Fisher faced six other charges for his actions on January 6, 2021 — including assaulting a U.S. Capitol Police officer.
“Why aren’t those six counts good enough?” Kavanaugh asked the Biden government attorneys, while Justice Clarence Thomas inquired if the Sarbanes-Oxley provision had ever been used in a case prior to the January 6 trials to prosecute “violent protesters.”
Even Justice Elena Kagan — one of the court’s more liberal members — appeared to agree with Thomas, noting the intent of Sarbanes-Oxley was to address financial crimes, not protests at the Capitol, which caused a short-term nuisance.
Solicitor General Elizabeth Prelogar, representing the Biden regime, stressed the unique nature of the January 6 cases.
“The fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election,” Prelogar said. She added: “That is, they obstructed Congress’ work in that official proceeding.”
‘PULLING A FIRE ALARM.’
Associate Justice Neil Gorsuch asked the Biden government the most piercing questions and pressed them to determine the extent to which they believed activities could be prosecuted under the enhanced provisions of the law on financial crimes.
In his questioning, Gorsuch made specific references to several recent incidents, one where a Gold Star father was arrested for shouting at President Joe Biden from the House gallery during the recent State of the Union Address. The other regarded Rep. Jamaal Bowman (D-NY), who pulled a fire alarm while the House of Representatives voted on a government funding bill in September last year.
“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” the Justice asked before probing further: “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”
IMPLICATIONS FOR TRUMP.
The Supreme Court’s ruling could have far-reaching implications beyond the over 300 individuals charged under Biden’s DOJ’s use of the enhanced obstruction provision.
If the Justices rule against using Sarbanes-Oxley in the Jan 6 prosecutions, it would also invalidate two of the four felony charges brought by DOJ special counsel Jack Smith in the Washington, D.C.-based prosecution of former President Trump. Smith alleges the former President illegally attempted to interfere in the 2020 presidential election and overturn its results.
In addition to the potential impact of Fisher v. United States, the Supreme Court also heard a ‘presidential immunity’ challenge brought by Trump against Smith‘s prosecution in April. Trump and his defense attorneys contend that he is immune from prosecution as his actions challenging the 2020 election results were committed in his official capacity as President of the United States. If the Court rules in favor of broad legal protections for current and former U.S. presidents, it could result in most of the state and federal charges against him — in at least three current prosecutions — being dismissed.
