
<p>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.</p>



<p>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.</p>



<p>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.</p>



<p>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”</p>



<p>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.</p>



<p>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.</p>



<p>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.</p>



<p>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.<br>To better understand what is going on here, let us start with the section of the law under which Fischer was indicted. It states:</p>



<p><em>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.</em></p>



<p>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.”<br>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).</p>



<p>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.</p>



<p>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.”</p>



<p>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.</p>



<p>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.</p>



<p>Judge Nichols decided that Miller had not attempted to obstruct a proceeding relating to a document, he dismissed the charges.<br>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.</p>



<p>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.</p>



<p>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.</p>



<p>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.”</p>



<p>So, there ‘tis.</p>

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