Jan. 6 Case — 20 Years For Political Dissent...

Feb 8, 2024

The First Amendment does not permit the government to make political expression criminal. That’s what Liberty Counsel argued in the amicus brief we just submitted to the U.S. Supreme Court.

Fischer v. United States, three January 6 defendants are appealing the government’s use of an evidence destruction law to criminally charge them for entering the U.S. Capitol to exercise their First Amendment rights to assemble, speak, and petition.

If this contravention of the 2002 Sarbanes-Oxley Act is allowed to stand, large swaths of our First Amendment rights will be gutted, and ANY action intended to sway “an official government proceeding” — even a prayer gathering or trying to speak to your legislator — could be deemed a crime.

Liberty Counsel is fighting to protect what is left of America’s precious right to free speech. Read on to learn more about our latest filing with the U.S. Supreme Court. — Mat

In December 2023, the High Court granted the petition of Joseph Wayne Fischer, Edward Lang, and Garret Miller, who were charged with “corruptly” obstructing an official proceeding, namely the joint session of Congress that was convened on January 6, 2021, to certify the 2020 election. The defendants say they briefly entered the U.S Capitol Building after Congress had recessed.

In this case, Fischer contends the federal government is overreaching by charging under the 2002 Sarbanes-Oxley Act, a law that grew out of the collapse of the Enron Corporation and is designed to prevent the fraudulent destruction of corporate financial records. Specifically, Section 1512(c) of the law makes it a felony to corruptly alter, destroy, mutilate, or conceal a record, document, or other object with the intent to undermine an official proceeding. A second part of the statute also applies to anyone who "otherwise obstructs, influences, or impedes any official proceeding."

These men face up to 20 years in prison if found guilty under this statute.
However, none of these defendants altered, destroyed, mutilated, or concealed any records, documents, or other objects. Therefore, the Sarbanes-Oxley Act does not apply.

The Justice Department has charged nearly 330 individuals, including President Donald Trump, under this law.

In March 2022, a U.S. District Judge dismissed the Section 1512(c) charge against Fischer, reasoning the law was only intended to narrowly apply to evidence tampering that leads to an obstruction of an official proceeding.

However, in April 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 to reverse that decision and reinstate the charge against Fischer, Lang, and Miller, whose cases are now combined. The Appeals Court stated that “under the most natural reading” of the second part of the statute, the law “applies to all forms of corrupt obstruction of an official proceeding.”

In his dissenting opinion, Judge Gregory Katsas stated the Justice Department’s “all-encompassing” interpretation of the law would make it both “improbably broad and unconstitutional in many of its applications.”

In the amicus brief we just filed, Liberty Counsel argues that using a “document-shredding prohibition” such as Section 1512(c) in this manner “criminalizes large swaths of constitutionally protected expression” and runs “roughshod over the First Amendment.”

This unprecedented application of Section 1512(c) was due to prosecutors running amok because they detested the speech, assembly, and expression of the people who aimed to influence their elected representatives on January 6.

PLENTY of other recent “expressive activities” have disrupted official proceedings yet were not prosecuted under Section 1512(c). For instance, the individuals who violently assaulted the Hatfield United States Courthouse in Portland, Oregon; those who unlawfully disrupted Justice Brett Kavanaugh’s Senate confirmation hearing; and the anti-Israel protesters who stormed the rotunda of the Cannon House Office Building — all of which resulted in injuries to police officers or attendees.

Did the United States trot out Section 1512(c) to prosecute these violent protestors that “stormed the Capitol” in the same manner as the numerous January 6 defendants are alleged to have done? NO.
Yet, the United States dusted off this document-shredding prohibition to supercharge the minor offenses of some and the constitutionally protected expression of others into felonies subject to 20 years’ imprisonment. In no other instance, including a host of recent examples of similar expressive activities disrupting official proceedings, has the United States wielded the sword of Section 1512(c) to impose such drastic penalties.

The Justice Department’s selective prosecution of January 6 defendants under Section 1512(c) runs afoul of the U.S. Constitution.

The First Amendment does not permit the government to make political expression criminal.

Liberty Counsel is working on many Supreme Court cases. We are also submitting briefs on the Biden administration’s social media censorship, Biden’s attempt to force emergency room doctors to perform abortions, the abortion pill case, pro-life sidewalk counseling, and more.

Mat Staver
Founder and Chairman
Liberty Counsel



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“SCOTUS To Decide First Amendment Issue in January 6 Prosecutions.” Liberty Counsel, February 5, 2024. LC.org/newsroom/details/0202524-scotus-to-decide-first-amendment-issue-in-january-6-prosecutions.