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Will Supreme Court throw out 330 January 6 indictments – including Trump’s?

Will Supreme Court throw out 330 January 6 indictments – including Trump’s?

The various court cases involving President Trump has put a lot of flak in the political skies. Pundits have a problem keeping up – which means it is impossible for John Q. or Jane Q. Citizen. The headline question refers to a case that gets virtually no news coverage.

Joseph Fischer was one of approximately 1000 demonstrators who entered the Capitol Building to stop the counting of the electoral vote – or at least to persuade the members of Congress not to certify the results.

Asking members of Congress to do that is not illegal. Nor is it illegal to assemble and protest to achieve that objective. But that is not where it ended on January 6, 2021. The peaceful protest by more than 10,000 people was overshadowed by those estimated 1000 people who turned the protest into a riot that engendered fear in our lawmakers, vandalized the building and injured a number of Capitol Hill Police. One rioter was shot to death in the conflagration.

Fischer was a Cornwall Township, Pennsylvania police officer, but he was not there in any official capacity. His stated motives were brash and threatening. He texted that his mission was take “Congress to the gallows.” In another text he jokingly said that they (members of Congress) “can’t vote if they can’t breathe. Lol”

Fischer charged his way into the Capitol Building, where he was confronted by a Capitol Hill police line. In the scuffle, Fischer and a police offer were knocked to the ground. He was then removed from the building. The episode took less than five minutes and was recorded on Fischer’s cell phone video.

Fischer was subsequently arrested back home by federal agents and charged with multiple felonies, including the “obstruction of an official proceeding.” This was after he was ID’ed by a coworker. More than 300 of those under federal indictment have been similarly charged – including President Trump.

After more than three years, Fischer is yet to stand trial. That is largely because he is appealing his case all the way up to the United States Supreme Court. That, in itself, is amazing. Even more amazing is that the Supreme Court has decided to hear his case.

The only reason that the high Court would take up the case is because there is a legitimate constitutional question to be resolved and to resolve conflicting opinions of lower courts. The Court has agreed to hear arguments on the case on April 16.
To better understand what is going on here, let us start with the section of the law under which Fischer was indicted. It states:

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.

Anyone with an average facility with the English language might think the law – especially Subsection (2) is fairly straightforward. But alas, we are talking lawyer-ese here – which rarely comports to simple interpretation. If you doubt that you need to recall President Clinton’s response that his issues on the issue of “what the meaning of is, is.”
In this case, it is that word “otherwise” at the beginning of Subsection (2) that is the bone of contention. What is its meaning and how does it connect to Subsection (1).

The Fourteenth Federal District Court upheld the indictment of Fischer, declaring that “otherwise” simply means “in a different manner.” The Court sort of disconnected Subsection (2) from Subsection (1) as if it is a different crime.

But … in a case involving rioter Garret Miller, a D.C. District Court Judge had a different opinion. Judge Carl Nichols declared that “otherwise” sets a limit on Subsection (1) requiring “that the defendant has taken some action with response to a document, record, or other object in order to corruptly obstruct, impede or Influence an official proceeding.”

Of course, you can see the important distinction between these two interpretations. Unless you are like most folks and have no idea what the judges are talking about. Basically, Nichols connects Subsections (1) and (2). If you do that, Subsection (2) essentially means you have to destroy physical evidence in the form of documents – physical property.

Now that makes sense when you understand that the law was passed in response to the scandal that brought down the giant energy company, Enron Corporation, and one of America’s leading accounting firms, Arthur Andersen. It had nothing to do with rioting. Essentially, they were found guilty of falsifying documents, cooking the books and concealing enormous debt. More directly, the law was enacted to address shredding documents. Hard to imagine how that case – and the law that came out of it – remotely applies to the rioting on Capitol Hill.

Judge Nichols decided that Miller had not attempted to obstruct a proceeding relating to a document, he dismissed the charges.
The D.C. District Circuit Court of Appeals disagreed– stating that “otherwise” in Subsection (2) does not limit the law to the destruction of physical evidence.

With the lower courts in conflict of the meaning of the word “otherwise,” it would seem that only the Supreme Court can resolve the mess. Otherwise, it would remain a mess.

If the Supreme Court decides in favor of Judge Nichols, Fischer’s case will be dismissed. BUT … so will the same charges against 330 other defendants – including Trump.

So, there you have it. A little publicized case – hanging on the legal definition of “otherwise” –that could otherwise drive a gavel through the heart of some of the most significant cases surrounding Trump and 330 other defendants. I guess that is why the Supreme Court justices get paid the big bucks – although not as big as the attorneys who otherwise fight over the meaning of “otherwise.”

So, there ‘tis.

About The Author

Larry Horist

So, there ‘tis… The opinions, perspectives and analyses of businessman, conservative writer and political strategist Larry Horist. Larry has an extensive background in economics and public policy. For more than 40 years, he ran his own Chicago based consulting firm. His clients included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. Larry professional emphasis has been on civil rights and education. He was consultant to both the Chicago and the Detroit boards of education, the Educational Choice Foundation, the Chicago Teachers Academy and the Chicago Academy for the Performing Arts. Larry has testified as an expert witness before numerous legislative bodies, including the U. S. Congress, and has lectured at colleges and universities, including Harvard, Northwestern and DePaul. He served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. Larry has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. An award-winning debater, his insightful and sometimes controversial commentaries have appeared on the editorial pages of newspapers across the nation. He is praised by audiences for his style, substance and sense of humor. Larry retired from his consulting business to devote his time to writing. His books include a humorous look at collecting, “The Acrapulators’ Guide”, and a more serious history of the Democratic Party’s role in de facto institutional racism, “Who Put Blacks in That PLACE? -- The Long Sad History of the Democratic Party’s Oppression of Black Americans ... to This Day”. Larry currently lives in Boca Raton, Florida.

13 Comments

  1. Kellen J Benz

    Then according to this, Nancy Pelosi should be charged for tearing up documents when Trump gave his state of the union address. The tv viewing public all seen her disgusting act live on tv.

  2. NavVet

    The fact is that there would have been no riot if speaker Pelosi had done a requested and sent in more help to protect the people. Fact was she was asked to get help by then president Trump and denied the request. She should be on trial for murder and being a traitor to not only the people but her oath of office and America. All should be released from jail and paid for every day they where ILLEGALLY in jail. That should be paid by Nancy herself.

    • FRANK STETSON

      Navet, you have factual errors. Pelosi does not order the police. Nor does Johnson now. And think about it. Trump calls Pelosi and says “do you want support.” She says no. Trump says OK. If Trump is all knowing, all powerful, why didn’t he just call in the troops? Always listens to Nancy? And why did he watch the riot for three hours before making a call? Waiting for Nancy to defend his Capitol? Does not really pass a simple sniff test, does it?

      Even if that were the case, are you saying criminals should be released because someone in authority forgot to call the police?

      • Americafirst

        That is a blatant lie, Stetson! Trump did NOT call Pelosi to ask, “do you want support?” That is not how it went down. You owe Navet an apology. A President does NOT have the authority to order in troops. He has to go through channels to get them. HE had requested troops who were waiting for orders that did NOT come in. That is the real truth, and you know it. Your lies have gone too far. Perhaps it is you whom should be arrested, Hmmm. Jag might just want your name! Larry should ban you from this site – permanently!

        • larry Horist

          Americafirst … Ban Frank and deny intelligent readers an example of leftwing thinking — or lack there of??. Political adversaries like Frank — with their extreme and irrational hatred of Trump, Republicans and conservatives — are what have made Trump so powerful. We need to get guys like Frank a lot more publicity so the public and see what they are for themselves. They say the best defense against a bad idea is a good idea. We need the Franks of the world to show the bad idea as the comparative. Our role is to put forward the good ideas and ideals. My only sadness is that Frank does not reach more people with his leftwing crap.

          • FRANK STETSON

            ” Political adversaries like Frank — with their extreme and irrational hatred of Trump, Republicans and conservatives — are what have made Trump so powerful.” Only a fool would blame me for Trump.

            I am not your adversary. This is not war. We are united as Americans whether you like it or not.

            My hatred of Trump is not irrational or extreme. He is a bad person with bad ideas who fraudulently makes his money by lying, cheating, and stealing. Horist has hot air; I have court decisions.

            Why, some of my best friends were Republicans. Not so much so anymore, but it’s not me. When you idolize a lying, cheating, thief, it tends to be harder to make friends with those who don’t. When you stop believing in our institutions of the press, the courts, the law, politicians, scientists, lawyers (well, not the lawyers :>), doctors, and even the scholarly amongst us, it tends to be harder to make friends with those who don’t.

            It ain’t me Horist, it ain’t me you should be looking for.

            Keep your hate, let it drive you, it’s time for the pugnacious prick to rise and shine. It’s all you’ve got. It nourishes you. It fulfills you.

          • larry Horist

            Frank Stetson …. Adversary can mean both “opponent” or “enemies” as in war, but purposely did not call you an enemy as you inferred by switching the words. Contrary to your ignorant assertions, I am not a hateful person. Never hated anyone in my life. I assume the perhaps the only reason you ascribe hatred to that Larry Horist of your imagination is that you cannot understand or accept people without hatred. If you hate — as you say you do — you simply cannot understand people who do not. You say your “hatred” for Trump is not irrational or extreme. Wrong. Hatred, by definition, is both irrational and extreme — but perhaps you never studied human psychology.

            You say you have lost close Republican friends over politics, but it is not on you. I have a lot of very liberal Democrat friends and I have not lost one of them over political differences — because we discuss them with with civility and even humor. I do not hate them or even dislike them for their opinions. Your finding it harder to make friends — or keep friends — with whom you do not agree says a lot. I would suggest that given the hatred you display over politics, and the inability to make friends of different views, it IS “on you.” Something to think about … eh?

            I pity you, Frank. So locked up in your own venomous bubble that you cannot make friends beyond the bubble. I find having a diversity of friends in all ways is one of the great enrichments of life. My long time philosophy is to make temporary adversaries and permanent friends. If I ever got to know you beyond your hateful writing and attacks on me, I might even enjoy YOU as a friend. LOL But in the meantime, rest assured that I do not put any emotion or lingering opinions into my posting.

      • Curt

        The Speaker of the House is responsible/orders the Capitol Police. Sorry, just the way it is.

        The Mayor of DC is responsible/orders the DC police.

        The President can only activate the National Guard in response to a request from the responsible agency and does not control the NG in domestic circumstances. President Trump offered to activate the NG to support the police in Washington DC and the Capitol police before Jan 6th.

        We know Trump did this, regardless of what the J6 committee says, because the DC Mayor was nice enough to respond by letter turning down the offer. We also know that the Capitol Police turned down the offer as well, although it is uncertain if it did so because Pelosi directed them to.

        On Jan 6th, Trump could not direct the NG to do anything without a request from the individual responsible for security of the Capitol, Nancy Pelosi. Even then, he could not command the NG, he could only activate it to be under the command of the Capitol police/Speaker of the House. Because it is not the President’s Capitol, it is the Legislative Branch’s Capitol.

        So actually, it does pass the sniff test.

        Having said that, the failure of Judgement by the Speaker of the House/Capitol Police and the Mayor of Washington DC in turning down the NG support offered ahead of time in no way relieves anyone of responsibility for their own actions.

        And a final note, once the NG was turned down, activating them on short notice is virtually impossible. Because the President does not have any authority to activate them by himself, they have to be requested. It is kind of like insurance, you have to have it in place ahead of time or it is no good.

        • FRANK STETSON

          Curt et al —- Trump lies. It’s his super strength. One of his tricks is to package the lie in a sound bite, “lock her up,” and market heavily, consistently, continuously, blocking out the sunshine of truth. Another trick when caught in a lie is to cover it up with another lie. He can keep this up until he finds one you believe and others give up trying to contradict. You are the buyer of these lies because somehow it fulfills you. This is what’s happening here. If you fact check your statements, you will find evidence that most are false. You have been lied to and it can be proven.

          Trump said: “I requested … I definitely gave the number of 10,000 National Guardsmen, and [said] I think you should have 10,000 of the National Guard ready. They took that number. From what I understand, they gave it to the people at the Capitol, which is controlled by Pelosi. And I heard they rejected it because they didn’t think it would look good. So, you know, that was a big mistake.” There’s a number of flavors of this, but if Trump thinks the Capitol is controlled by the Speaker, he does not understand his own government.

          Some is just silly. Pelosi governs the Capitol Police. Trump called Pelosi. That’s just funny.

          The Capitol Police report to committees, not the Speaker of the House, or, better yet, the Senate Leader.
          The National Guard can be called out by either a Governor or President, most often it’s at the Governor’s request. For DC, it’s the President only. It’s called the Insurrection Act of 1807 and Trump knew it well, it was part of his end game plan to be used to take over the government as the Capitol fell. Then the Proud Oath Keeper Boys would unleash the armory they had across the river.

          But look it up, the Insurrection Act is one law that allows the President to deploy the Guard. There are many ways a President can Federalize the Guard including: Voluntary Order to Active Duty, Partial Mobilization for national emergency (24 months only), Presidential Reserve Call Up (not more than 270 days), Federal Aid for State Governments (includes DC), Interference with State and Federal law and Invasion. You can easily fact check this yourself.

          Do you really think Trump called Pelosi? There is no phone record from either side. There is no written order from Trump. There is Chris Miller, Trump sycophant acting Secretary of Offense, who talked about Trump talking about….or said he overheard Trump, but there is no direct evidence Trump made any request before, during, or after the attack. There is nothing in writing, no orders, no emails, no phone calls in the logs, nothing. There is a 30-second call from Trump to Miller where 10,000 may have been spoken about, according to Miller.

          FYI: the Capitol defense had been successful for a number of decades withstanding many a protest. This one was large, but more important, had dedicated members with a plan. I have seen and moved many a crowd by operating from within; it’s not hard to lead the charge from a few steps back. Like moving a herd of cows. It was a trick we learned from concerts, protests, and other mass activities and one I wished I had never learned. A surge is a surge and a surge is easy to start. Thus the actions of a dedicated few, with a plan, caused the surge of 2,000 to spill into the Capitol like a herd of mindless cattle in a stampede. Except a few of the cattle had a plan…..

          Chris Miller was acting Secretary of Defense after Trump fired Esper six days post the election loss. Miller was a colonel previously. Esper was a West Point grad with a long and glorious record in military, defense manufacturer, and government before becoming SoD. Miller blocked the Biden transition and it was Miller, not Trump, who called out the Guard over three hours into the attack and two hours after DC city officials made their request. Bowser made the request after the rioters broke through to Army Secretary Ryan McCarthy who made the request to Miller. Miller claims he did not speak to the President; he did not need to speak to the President, and the President did not make the request. Miller left office 1/20/2021, the acting was up. You can fact check this.

          Pelosi cannot make a request on the Guard. Congress can not either. The SoD can. The President can federalize the Guard. Governors can call them out, or ask the President to do so.
          *https://apnews.com/article/fact-check-trump-order-national-guard-156055113284*

          Mr. Bell says: “It seems way off base to suggest that the roughly 1,000 people arrested were all rioters. So many were tourists, simply led in and unsuspecting of the trap that awaited them.” Actually, once you went past the barriers on the Capitol grounds, once you stepped over the broken glass, broken doors, broken windows, and entered the Capitol, I am pretty sure you voided your tourist pass. Especially since tourists are not allowed where they went. No, once they enter the Capitol, there are rioters although being white Republicans, many got basically trespass. And Mr. Bell, it’s 1,400 now with 600 to go.

  3. FRANK STETSON

    There’s that Horist again —- pissing on his readers while telling them it’s raining. 2024 will be a big year in 1/6/2021 arrests and convictions. Big trials, more arrests, and pardon promises on the way.

    The Horstian spin of 1,000 criminal rioters entering the Capitol stopping Congress and causing Josh Hawley to run away like a scared little girl fact is BUSTED; estimates that over 2,000 entered and trespassed on that date. Think it’s 1,000 that were ARRESTED for entering the capital. Don’t diminish your party’s actions as kicked off by your President. I mean you could be right, but the 1,387 arrests made of folks entering as of 4/4/2024 sort of says otherwise. Not to mention arrests are still being made.

    791 have pled guilty — there’s your 1,000 :>)

    Good try at lowering the effects. What’s next, frisky tourists?

    520 have gotten incarceration, 170 got home detention, 31 got both.

    From justice.gov: “Citizens from around the country have provided invaluable assistance in identifying individuals in connection with the Jan. 6 attack. The FBI continues to seek the public’s help in identifying individuals believed to have committed violent acts on Capitol grounds. Those photos can be found at fbi.gov/capitolviolence

    Additionally, the FBI currently has 10 videos of suspects wanted for violent assaults on federal officers, including (ONE) video of (TWO) suspects wanted for assaults on members of the media on January 6th and is seeking the public’s help to identify them.

    Some of the violent offenders about whom the FBI is seeking public tips to identify or locate include Evan Neumann, Adam Villarreal, Paul Belosic, AFOs #91, #292, #371, and #383. AFO #91 uses what appears to be a stick to strike multiple officers numerous times while in the doorway of the Lower West Terrace, commonly referred to as the tunnel. AFOs #292, #371, and #383 are all shown on video charging at and assaulting officers, and they appear to grab and attempt to take possession of the officers’ batons.

    For images and video of the attackers, please visit https://www.fbi.gov/wanted/capitol-violence. Anyone with tips can call 1-800-CALL-FBI (800-225-5324) or visit tips.fbi.gov.”

    PBP posters are invited to help out to arrest these criminals and defend the rule of law as law and order advocates.

    But Larry, over 2,000 entered, 1,300 plus arrested, 859 adjudicated. And the beat goes on. The arrests will continue, we have two years before SoL takes effect, and that’s not shit outta luck.

    One other factoid: “If the Supreme Court decides in favor of Judge Nichols, Fischer’s case will be dismissed. BUT … so will the same charges against 330 other defendants – including Trump.” Not quite true. The obstruction charge against Fischer and 330 others would be dismissed, The other chargers against Fischer and the others stand, and Fisher hit a cop, he’s toast. And for Trump, not only do the other charges stand, but in Trump’s case, Smith has already laid the groundwork that documents and evidence are within the charge, so he might not even be affected by the Fischer outcome.

    Beyond that, thanks for the illumination. Hard to see all the weather on these Stormy days.

    SCOTUS does immunity at end of month, that will be a game changer no matter the decision. Georgia prosecutors pushing for August 5 start that’s on the calendar, Trump will throw some more roadblocks, but this could be a go before the election and that’s a big downer for Trump. FL Trump appointed judge is in the weeds, who knows what she is doing, Smith scolded her, in writing, recently, for her lack of jurisprudence, she’s conjuring a date, might know someday. The DC case is hung up on the SCOTUS immunity decision and they are slow boating their hearing. It’s not Colorado after all. The SOCTUS hearing is 4/25 meaning the case may not make it before the election even if the DC judge is hell bent for leather to get er done, as she has been so far, SCOTUS is “arranging” to make this hearing a non-issue for the American public for the 2024 election. That’s criminal.

    So, it’s NY for now, they have cleverly made this an election fraud case elevating it to a criminal felony. The business fraud part is a no brainer guilty. Some have questioned timing and that’s on Trump. He delayed DOJ Federal Court action until he took the throne to hide behind the Presidency and not be charged, Then he had Barr fuck up the Federal investigation, not bring charges, and freeze out NY state. SNDY head Berman resigned, no, resigned again, no, then got fired by Trump over Barr corrupting the case, Then Trump had Barr toss Cohen back in jail because his tell all book was coming out, he was on a covid home arrest arrangement, and Trump had him put back in jail. Then the DOJ dropped the case, Trump dropped the Presidency, and NY State came after him ——- that’s the delay —- Trump and Barr corruption at DOJ to freeze the case.

    NY won’t matter much for the election. Trumpers don’t care. Georgia is the focus now. And DC hangs on SCOTUS and then we’ll know whether it’s a go or not, and the timing will come quick.

    • Johnny Holmes

      Stfu frank. Trump is going to be re-elected and will pardon the patriots. Many took deals to have a chance of not being put away for many years. I wouldn’t have. But Nancy Pelosi, aka nasty pussy is completely at fault.

    • Americafirst

      Stetson, I may just call that number and give them YOUR name!

  4. William Bell

    It seems way off base to suggest that the roughly 1,000 people arrested were all rioters. So many were tourists, simply led in and unsuspecting of the trap that awaited them.