Below is my column in the Hill on the Supreme Court decision on Friday in Fischer v. U.S. to reject hundreds of charges in January 6th cases for the obstruction of legal proceedings. For many cases, that will leave relatively minor offenses like trespass or unlawful entry. It is only the latest blow to efforts to portray the riot as a massive conspiracy to overthrow the government. While portrayed by pundits and press in strictly ideological terms, it actually produced an interesting line up with Justice Ketanji Brown Jackson voting with the majority and Justice Amy Coney Barrett voting in dissent.
Here is the column:
The Supreme Court’s decision on Friday in Fischer v. U.S. struck down one of the most common charges against January 6 defendants. “Obstruction of an official proceeding” had been used in hundreds of cases, and those convictions are now invalid.
But the biggest impact of the decision may occur elsewhere.
For years, calling January 6 an “insurrection” has been a litmus test for press, pundits and politicians. Members of Congress such as Eric Swalwell (D-Calif.) claimed a conspiracy of “armed and organized insurrectionists.” The claim is legally absurd but politically advantageous.
It now seems like the insurrection increasingly looks more like a legal case of mass trespass and unlawful entry.
I have always believed that criminal charges were warranted for the riot of Jan. 6, 2021. But this week’s decision shows how the Justice Department has wrongly prosecuted hundreds of people for the obstruction crime. It was all part of what Justice Department official Michael Sherwin proudly declared in a television interview, that “our office wanted to ensure that there was shock and awe…it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ …We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
The Fischer opinion will bring an end to a minority of cases that were based entirely on the charge under 1512(c)(2). The section had been enacted after the Enron scandal in 2001 with the collapse of an energy company accused of corporate fraud. It was designed to allow criminal charges for the destruction of evidence in the form of documents and records.
The Justice Department chose to interpret that provision to broadly include any obstruction of any legal proceeding, and then used it in hundreds of Jan. 6 cases. At least a quarter of the prosecutions included this charge. Most also included other charges, including trespass and unlawful entry. A small number involved serious offenses like violence against officers and an even smaller number involved charges for “seditious conspiracy.”
For most cases, the decision may require resentencing. Others with pending charges will go to trial without an obstruction claim.
One of those is former President Donald Trump. Special Counsel Jack Smith brought four charges in Washington, D.C.: obstruction of an official proceeding, conspiracy to obstruct an official proceeding, conspiracy to defraud the United States and conspiracy against rights. The Fischer ruling means that half of the indictment would be dropped. Smith could be compelled to seek a superseding indictment.
The loss of the obstruction counts seemed to rip the wings off the plane that Smith has been trying to get off the ground before November. It was the obstruction theory that held the indictment together — the notion that Trump was directing his followers to stop the certification from occurring by charging the Congress.
The court rejected this theory and noted that that the “novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.” Smith has been here before. He was unanimously overturned by the Supreme Court in his conviction of Former Virginia Gov. Bob McDonnell. Notably, as with today, the court found his theory to be dangerously “boundless.”
Smith has made a trial before the election his highest priority. Judge Tanya Chutkan has been all-in on that effort with Smith, including accepting his obstruction interpretation. She may allow Smith to go forward on the two remaining counts, but that may depend on what occurs next when the Supreme Court issues its ruling on presidential immunity, including a possible remand to the trial court for further proceedings that could extend beyond the election.
The obstruction charges helped complete the insurrection narrative for many in the press and politics. I have long disagreed with that claim. As shown by polls, most citizens view January 6 as a protest that became a riot, not as an attempt to overthrow the government.
I was contributing to the coverage on January 6. I did not agree with then-President Trump’s claims to challenge the certification, and I criticized his speech while he was still giving it. But that speech was entirely protected, in my view, under the First Amendment. Importantly, it included a call to his supporters to remain peaceful.
The insurrection myth was used previously in court as Democratic secretaries of state sought to bar Trump from ballots under a meritless constitutional claim that was rejected unanimously by the Supreme Court.
Now the remaining charges are largely for trespass and unlawful entry into the Capitol. Yet, the myth will continue as a mantra in the media that this was an attempt to overthrow the government.
The disconnect is not simply with the cases. Biden continues to claim that “democracy is on the ballot,” and many have claimed that this will be our last election if Trump wins. This hyperbolic claim ignores the many safeguards in our constitutional system, the very safeguards that led to the certification of Biden’s victory in 2020.
The greatest problem is that Biden’s line about democracy is not resonating with the public, despite the virtual echo chamber in the media. According to a new poll of swing-state voters from the Washington Post and the Schar School of Policy and Government at George Mason University, over half of respondents view Biden as a threat to democracy and not its savior. Forty-four percent said that Trump would do a better job at protecting democracy compared to just 33 percent who believe Biden would be better for democracy.
Part of the problem is the array of court decisions finding that Biden has repeatedly violated the Constitution, including engaging in racial discrimination and attempting to rule by circumventing Congress.
Biden has also become the most anti-free speech president since John Adams, including the establishment of a massive censorship system described by one court as “Orwellian.” As I discuss in my new book, the Biden administration has brought together an unprecedented alliance of government, corporate and academic interests to target and silence those with opposing views.
These, combined with the weaponization of the legal system and his party’s efforts at ballot cleansing, hardly make Biden look like the defender of democracy to many citizens.
For those who have been found guilty under these unlawful charges, it is a bit late to convert the Justice Department’s “shock and awe” into a mere “aw shucks.” It can also seem just awful for many citizens who see the political rage of Jan. 6 replaced by a type of state rage. As a result, Fischer suggests for many that democracy may be on the ballot, but the threat is not exactly what the press and the pundits have suggested.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School and author of “The Indispensable Right: Free Speech in an Age of Rage.”
Does anyone know why they didn’t charge the “insurrectionists” (including supposedly Trump) with insurrection under the law that criminalizes insurrection, 18 U.S. Code § 2383 – “Rebellion or insurrection”?
WhaleFarms2025,
There would of have to been an insurrection in the first place to charge anyone with “insurrection.”
Biden — the chief law enforcement officer in the land — calls it that. All the (D)s call it that. Don’t they run the DOJ? What’s the excuse?
Anyone who is familiar with the Irish Rising of 1916, knows that January 6 was not an insurrection.
If all they were doing was protesting, then why: 1. did they have planning meetings at the Willard Hotel?; 2. why do pre Jan 6 reconnaissance trips to plot on the most-vulnerable entry point to the Capitol if they could distract the Capitol Police away from the easiest entry point?; 3. Why the cache of weapons stored at a Virginia hotel across the Potomac? 4. Why enter the Capitol Building at all? They could wave their Trump and Nazi flags and display their “Camp Auschwicz” t-shirts outsidel WHAT was their goal? WHY did they want so badly to get INTO the building? EVERYONE knows it was to stop Biden’s certified vote count from being accepted by Pence.
EVERYONE knows it was to stop Biden’s certified vote count from being accepted by Pence.
And how were they going to do that, Gigi?
What was this big plan they cooked up? To wander around and break stuff? Because it didnt seem to be a plan to me. Did that look like a plan to you.
Is that how you plan your grocery store trips??
THEY HAD WEAPONS and were waiting for their exalted leader to show up–but he didn’t. They had a noose with which they intended to lynch Pence. Mark Mazza had a handgun with which he intended to murder Nancy Pelosi. Excerpted from CNN “Five Enduring Lies About the Insurrection::
In a December 21 statement, Trump called January 6 a “completely unarmed protest.” Similarly, in a tweet on December 17, Rep. Marjorie Taylor Greene of Georgia wrote, “One of the biggest holes in the lie about J6 being a planned insurrection is that all the people there were unarmed. Anyone with half a brain knows that gun owners only leave their firearms at home when they don’t feel the need to carry a gun or are obeying the law.”
Facts First: It’s not even close to true that all of the people at the Capitol on January 6 were unarmed – and the claim is still false even if it is specifically about guns. People who illegally entered Capitol grounds during the insurrection were armed with a wide variety of weapons, including guns, stun guns, knives, batons, baseball bats, axes and chemical sprays. The Department of Justice said in an official update last week that so far “over 75” people charged in connection to the attack “have been charged with entering a restricted area with a dangerous or deadly weapon.”
We may never get a complete inventory of the concealed weapons the rioters possessed on January 6, since nearly all of the rioters were able to leave the Capitol without being detained and searched. But prosecutors have alleged that some of the people present at the Capitol were armed with guns, as were some other Trump supporters who traveled to Washington for January 6.
Mark Mazza of Indiana has been charged with crimes including possession of a firearm on Capitol grounds; he has pleaded not guilty. According to the Capitol Police, Mazza accidentally dropped his loaded revolver during a struggle with police on a Capitol terrace. He allegedly told investigators later that if he had visited House Speaker Nancy Pelosi that day, “you’d be here for another reason.”
Guy Reffitt of Texas has been charged with crimes including illegally carrying a semi-automatic handgun on Capitol grounds; he has pleaded not guilty. Prosecutors allege Reffitt “specifically targeted at least two lawmakers – the Speaker of the House, Nancy Pelosi, and then-Senate Majority Leader, Mitch McConnell – whom he sought to physically remove or displace from the Capitol building.” And police allege Christopher Alberts of Maryland was arrested trying to flee Capitol grounds on January 6 with a loaded pistol; he has pleaded not guilty.
Mark Ibrahim, who was an off-duty special agent for the Drug Enforcement Administration at the time of the riot, has been charged with crimes including carrying a firearm on Capitol grounds. Ibrahim, who has said he was later fired by the DEA (the DEA would confirm to CNN only that he no longer works there), was photographed that day displaying what appeared to be a handgun. He has pleaded not guilty.
In addition, Lonnie Coffman of Alabama, who pleaded guilty to weapons charges in November, admitted that he had carried two loaded pistols in Washington on January 6 and that a truck he had parked blocks from the Capitol contained additional loaded guns, Molotov cocktails and other weapons. Cleveland Meredith Jr., who pleaded guilty to threatening to kill Pelosi and was sentenced to 28 months in prison, drove from Colorado to Washington with a rifle and handgun that were found in his trailer outside a Washington hotel. The FBI said Meredith had told agents he had tried to get to Washington on January 5 but ended up arriving late on January 6.”
They had a cache of weapons in a Virginia hotel room. The plot was to try to throw the election back to state legislatures on the basis that Congress couldn’t determine who had won–they believed that state legislatures would award the election to Trump. This is one reason why Trump tried to bully Raffensberger to “find’ him votes he didn’t get.
Legally removing the the free reign of tyranny that the bureaucracy has enjoyed is likely to be the greatest achievement of the high court of this century so far.
It would have been interesting for a legal scholar to comment on why Jackson affirmed and Barret dissented.
I am no legal scholar, but I am an expert on this subject. It’s because they’re women.
🙂
Easy to say when your anonymous
Apparently not so easy to say.
It’s “you’re” not “your”
What’s a woman? I’m not a biologist. Are you a biologist?
Sandra day O Connor didn’t just break the glass ceiling. She broke the whole darn thing lol.
I’m no legal scholar but how about this: Jackson is a former federal public defender so perhaps opposing the prosecution is in her legal DNA. That gave Barrett an opportunity to prove her independence from the conservative wing of the court.
I also wondered if there wasn’t some kind of chess move in Barret’s dissent. Setting things up for putting her dissenting opinion on this case on the affirmative side for a much more important future case such as …. (no idea… that’s why I was hoping Turley would opine)
I feel certain there is a lot of bargaining going on with this court in order to garner trust
Hi JT! Capitol Police acted as tour guides on Jan. 6 for Jacob Chansley
https://youtu.be/Opy7MLGAPBk
There is also a feed, that has been taken down that shows a capital official signaling for the doors to be unlocked and then letting letting people in. This link talks about it.https://dcpatriot.com/2021/06/14/who-unlocked-the-capitols-magnetic-doors-on-january-6th/
I’m very pleased by what came out of SCOTUS this week. One thing to point out though, is that the burning, seizing, and destruction of property anf violence toward other people in 2020 were NOT speech, and they were not ‘peaceful’ protest. Every one of those clowns needed to have some form of book thrown at them, zero did (due in part to dem federal hostility toward police doing their jobs or activist DAs never convicting anyone for anything, or activist judges not giving out sentences)
I’m sorry it took this for the issues involved to come to the fore, but c’est la vie. It seems lost on most left-leaning people these days that if states make their own rules and feds are forbidden to interfere they are welcome to keep their blue ‘utopias’ (they are not great at actual empathy or seeing beyond what makes them feel better *themselves*) and that’s the kicker: it’s never about their personal preferences or values, it’s about imposing them on every living being without their agreement or consent. Pardon the expression, but leftist ideology is political r*pe.
The one thing that troubles me is the consent of Ketanji – again, the dems do nothing arbitrarily, and she did not just magically become ethical. Makes me think they might try to use this as an excuse for rioting the likes of which we’ve never seen. Really: our modern dems are sociopaths, and sociopaths do not ‘get better’ over night. 🤷🏽♂️ Their privileged young-sh** minions honestly believe they are the good guys and have shown they have zero qualms about hurting others or damaging lives during their temper tantrums, anywhere, anytime (doesn’t take a genius to see why they support Hamas rather than the Palestinian people, for example, and volatile histrionics are all they know how to do in response to stress). Proceed with caution.
“Pardon the expression, but leftist ideology is political r*pe.”
James, you have no reason to desire a pardon for your expression. It is precisely what the left and Democrats are doing.
Political Rape is forced entry into our lives while expressing dominance. That is the left and Democrats, Political Rapists. Don’t they also support pedophilia and mutilation of girls and boys, along with trying to become dominant over the mother and father in controlling the child rather than the parents?
I like that expression. Thank you.Everyone should use it. Expressions like this need to be part of the conservative lingo.
My comment on your articles is usually the same or similar. You have been transparent in congress as to who you voted for, Biden, unlike some co-panelists of yours. After all your articles, interviews and now your book (I have my copy), I do not understand how you could possibly vote for Biden again – or any Democrat. They’ve tried to destroy everything we cherish in this country, and they will succeed if good people, even liberals and moderates, don’t recognize the danger our democratic republic is in. If the danger is to your job at a “liberal” university, is it a job worth saving?
The invitation will not expire. I’d like to hear your thoughts on that.
Turley is as MAGA as it gets.
You are a Political Rapist.
so, finally, angry privileged patriots are finally getting treated as equally as antifa and blm…nice.
Greg Gutfeld said:
“remember: the media democrat complex is reacting in horror over joe’s condition not because they saw it – it’s because you saw it.”
Yes. And remember that when they praise any candidate who might replace Biden.
Nothing they say can be true. Nothing they say can be trusted.
Young,
It is The Big Lie. They told us Biden was sharp. Biden was focused. They have been lying to us since 2020.
The Democrats and the MSM may not have been lying to Americans all along. Maybe he was sharp as a tack as of the morning of June 27, 2024, but as we all saw, his mind is now shot. This is no longer about politics. There are radical countries that would love to start launching nuclear weapons to wipe out the United States, Western Europe, Israel and the rest of free world.
Joe has to GO right now!
Eighty million people voted for Kamala Harris to lead the United States in the event Joe Biden can no longer function. This not about Joe not running in 2024, he just can be trusted to lead for one more minute.
Joe has to GO right now!
Greg Gutfeld rocks!
Good to have the adults back in the room at the Sup Ct. Common sense interpretations, based in text and history. Critical to resist the obvious twisting of the law for political ends – Bragg, 14/3 disqualification theory, putting 10,000 cubic tons of pressure on “otherwise” to use a corporate disclosure statute to throw the book at trespassers that just happen to be Trump supporters. The big one is sacking Chevron, once again the it’s a nod to core separation of powers, Art III and a dash of Marbury v Madison.
It can’t be trespassing when officers open doors and invite them in, as shown in videos, then lead them around like they did the peaceful and prayerful Shaman. Nor when government agents in the crowd outside advise them by bullhorn to enter as also recorded.
Merrick Garland’s “Obstruction of Official Proceedings” charges accomplished their objective brilliantly. They jailed President Trump
s political opponents. A Democrat’s wet dream Jonathan.
Turley– “an interesting line up with Justice Ketanji Brown Jackson voting with the majority and Justice Amy Coney Barrett voting in dissent.”
When that happened I couldn’t help but wonder if those two agreed to switch votes to counter the storm of criticism that the court is in an ideological divide.
Trump is advocating a “foreign” Oath of Office, the same as 1930’s/40’s Germany (Nazi Oath of Office). Any Democrat supporting this would be just as dangerous.
Maybe it’s Trump’s disinterest and ignorance of American government, but whether he is ignorant or evil, he is extremely dangerous.
Trump’s foreign model would actually create a more dangerous “Deep State”. The FBI, DOJ, NSA, CIA and the military would no longer swear supreme loyalty to the U.S. Constitution – but to a single person (exactly like the Nazi Oath of Office).
Under Trump’s foreign model, treason would be defined as those disloyal to a single person, not those disloyal to the U.S. Constitution. There would be no gun rights in Trump’s foreign model, the 2nd Amendment only survives in the American model.
Ronald Reagan, Eisenhower and all great Republicans would be strongly opposed to Trump’s unfitness for government office proposing foreign government, it’s not just his politics. This is not our grandfather’s Republican Party!
I am appalled at this serious danger to our republic err democracy. Sorry, I’m still getting my cliches straight. I definitely need to see the support for these claims you have made so I can feel comfortable switching my vote and encouraging my friends to do the same to prevent this foreign menace from being elected.
garytogaryesq2k2, you will be waiting a long time for Anonymous to provide a source for her accusations. She never does. I don’t understand why you’re asking her to put a ring in your nose.
Agreed! If Trump had actually said that, I think we’d be hearing a lot more about it in MSM. Have I been missing something?
Nope.
When the next organized riot (“protest”) descends on the Capitol (better yet on the Supreme Court) and sends officials cowering in back rooms fearful for their lives, this SCOTUS majority is going to look pretty foolish. They’ve just greenlighted the next generation’s militant, anti-government operational playbook. And these 6 idiots think they stand for law and order?
When antifa and hamas protesters ATTACK people, DESTROY property and BLOCK highways and buildings they should be arrested, unlike what happens to them today.
In May 2020 leftists attacked DC forcing Trump into the WH bunker, burning down a church across the street and injuring many SS agents and none of them got prison sentences. An elderly woman prays at an abortion clinic and she got 2 years while people stopping others from getting to the airport are given nothing. I AM SICK TO DEATH OF THIS GARBAGE!
So, the only way to protect against rioters is to ignore the law and make charges beyond that which the law allows?
Your comment makes no sense.
I’m going to reserve judgment on the justices until I actually read the opinion. In the meantime, I will say that I always thought that Jack Smith’s use of a that particular provision in the Sarbanes Oxley Act of 2002 to characterize the defendants’ behavior as he did was a real stretch!
Oh come off it. They can still be prosecuted for trespass or assualt. Take a deep breath, and realize this was typical over-charging by the DOJ. They have done it for years. Senator Ted Stevens, Gov. Bob McDonnell etc. It is a way for a prosecutor to get a notch in the belt.
And by the way, when you are invited in to the Capitol, you are not “trespassing”.
goldduggar said: “And by the way, when you are invited in to the Capitol, you are not “trespassing”.”
I’m not sure I buy the legitimacy of trespassing charges against citizens entering that building except under extraordinary circumstances. That is OUR fvcking property. I don’t care how many airs the fvcktard politicians (of all stripes) and bureacrats inside the beltway put on. They are not royalty or lords, they are our fvcking employees, and are not entitled to seclusion from we their employers by default.
The open and brazen lawfare against Republicans during the Biden Presidency will go down in history as one of the worst scandals in American jurisprudence.
If only it wasn’t liberals reporting it and writing the histories.
If they have room for all of them
Turley’s adherence to free speech principles is outstanding. I admire his pure fundamentals especially knowing his political leanings. But first and foremost is his insistence on the application of constitutional principles. I cannot wait to receive his book on this very topic. Free speech principles have been so corrupted by the Biden administration where one side is demonized and the other side is forgiven everything. This brazen dishonesty in our government’s DOJ must be tolerated no more.
If the trespassers had been “Black Lives Matter” protesters, every Trump supporter would call it an “insurrection” and likely many more protesters would have been shot or imprisoned.
We now have “Team Sports” at the Supreme Court level, not a constitutional rule of law system. Many Americans have lost total faith in the integrity of the high court.
You say this because your “Team” is disgracing themselves.
Based on history, if BLM supporters had been the trespassers, then quite likely arson and real violence would have been involved. Speculating on what would have happened if everything had been different is just an opportunity for more demogoguery — like “Many Americans have lost total faith in the integrity of the high court” when, if fact, it is only your desire that they do.
Now do all the times Code Pink interrupted Congressional hearings. Are they in the DC gulag?? Or did they get a slap on the wrist like your buddies BLM who burned down federal buildings in multiple cities.
We don’t have to imagine. There already was a summer of black lives matter riots, remember? The 100s of mostly peaceful assaults, arsons, and attacks on federal court houses, etc. I don’t recall the Trump DOJ calling these actions an “insurrection”, or calling for anyone to be shot or imprisoned. The only ones doing the shooting and imprisoning appear to be democrats.
Anonymous has it completely backwards. If this was hamas, antifa or blm goons they would not have been even charged and the idiot cop that killed Ashley Babbit would be in prison. Oh, and we would have a holiday marking the protester’s death.
The fact that no one of any political stripe ever called BLM riots insurrection kind of messes with your contention.
Purple fire hydrant (Your icon looks similar to a purple fire hydrant, and you refuse to provide a name.)
I read most of your posts demonstrating extreme ignorance. There was no insurrection, yet you haven’t learned it yet. Do you know what an insurrection is? Are you unable to see how J6 was different than the BLM riots, where people were killed, arson occurred and an area of a city was taken over?
Start thinking and the intellect God gave you.
Dummy said what? Oh yea the same old same old; how come not “political rapist” too edgy?
Turley