Seeking Justice In A Cotton Brief

 

Ok, I couldn’t resist the title. This post is not about tidy whites, it is about the Amicus Brief filed by Senator Tom Cotton (R-AR) et al. with the US Supreme Court in Fischer v US, a case challenging the use of 18 USC 1512(c)(2) to threaten January 6 defendants (and President Trump) with long jail terms. Senator Cotton was joined in this brief by Representative Jim Jordan and 21 other Congressmen. Let me cut to the key observation:

[P]rincipled adherence to the rule of law has not been a hallmark of the current administration.

But the brief is not a jeremiad, it is a carefully and skillfully crafted take down of the Biden Justice Department strategy.

It starts out explaining the interest of the Amicus filers:

Amici … have a strong interest in ensuring that courts properly apply canons of construction that Congress relies on for certainty regarding the effect of legislation in its drafting and enacting of public laws. [emphasis added]

This is a key observation. Legislators don’t just launch mind farts (or, at least, shouldn’t). There is a legislative purpose for their enactments. And when drafting legislation they have to know with reasonable certainty how the courts will analyze and apply those laws. For reasons that become clearer in the brief, if the legislators had anticipated the uses to which this statute would be put, they could have inserted or removed language to avoid undesired effects. Senator Cotton and the others quite properly have a vested interest in courts consistently applying rules of statutory construction so that laws actually do what the legislators intended and not something else entirely.

The Brief recites that Section 1512(c)(2) was enacted under the Corporate Fraud Accountability Act of 2002 passed to address abuses under the Enron economic collapse. Just pause a moment. The Corporate. Fraud. Accountability. Act. Gee, that sounds like something involving financial crimes, doesn’t it? What in the world does that have to do with trespassing, parading, or demonstrating at the Capitol Building?

The answer is “nothing”, except for —

Many January 6 defendants were nonviolent and would be subject to prosecution under (at most) provisions covering disorderly … conduct … in any of the Capitol Buildings,” which likewise carries a six-month maximum ; or “parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol Buildings,” which imposes a six-month maximum; “and remain[ing] in any restricted building or enter[ing] grounds,” which carries a one-year maximum.

The administration was dissatisfied with these low prison sentences for non-violent offenders. So, as it has repeatedly done in other contexts, the administration tried to get around this “problem” by searching the statute books and seizing on what seemed like a broad provision providing the kind of relief the administration wanted—i.e., lengthy prison time.

Section 1512(c) authorizes sentences up to 20 years. Of all the nonviolent crimes available to the government for charging January 6 defendants, Section 1512(c) offers by far the stiffest penalty. In fact, its penalty is noticeably longer even than the relevant violent criminal statutes. [footnotes omitted]

And in contrast —

[F]or a case study in the difference between the current administration and President Trump’s administration, consider the scores of protestors arrested for interfering with Senate Judiciary Committee hearings for President Trump’s judicial nominees like then-Judge Brett Kavanaugh and Steven Menashi. [References deleted] Those actions by protestors were highly improper and certainly were criminal. But President Trump’s Department of Justice did not adopt the strained view that those protestors should be charged with Section 1512(c)(2) and sentenced to up to twenty years in prison. Other statutes covered their behavior, and many were charged under those statutes. Unfortunately, such principled adherence to the rule of law has not been a hallmark of the current administration.

Comparing the two scenarios (and many others listed in the Brief where, under the government’s theory, Section 1512(c)(2) could have been applied but wasn’t) one has to wonder how any Court could have agreed to its application? The answer lies in the magic words: obstructing an official proceeding.  The DC Court of Appeals found the application unambiguous. So let’s read it:

SEC. 1101. SHORT TITLE.

This title may be cited as the ‘‘Corporate Fraud Accountability Act of 2002’’.

SEC. 1102. TAMPERING WITH A RECORD OR OTHERWISE IMPEDING AN OFFICIAL PROCEEDING.

Section 1512 of title 18, United States Code, is amended— (1) by redesignating subsections (c) through (i) as sub-

sections (d) through (j), respectively; and
(2) by inserting after subsection (b) the following new subsection:

‘‘(c) 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.’’.

See. Paragraph (c) (2) is clear and unambiguous except for that inconvenient language “inserting after subsection (b) the following….” In other words, this new language was to be put into an existing statute dealing with witness tampering in evidentiary proceedings covered by that statute.

This may give you a hint why this statute was never used in this way until the Biden Department of Justice was looking for leverage to suppress political opposition. All of the proceedings listed in the pre-existing statute into which Section 1215 (c)(2) was added involve evidentiary proceedings, the outcomes of which are affected by the availability of evidence, not political expression and preference. As noted in the brief there were other non-evidentiary events at the Capitol Building for which no attempt has been made to apply Section 1512 (c)(2) —

For example, U.S. Representative Jamaal Bowman has conceded that he willfully or knowingly set off a false fire alarm in a Capitol building, causing an evacuation that delayed a House of Representative vote on last-minute government funding legislation. [Reference omitted] Rather than be hit with Section 1512(c)(2) and face twenty years in prison, Bowman instead got a slap on the wrist from the D.C. attorney general, who charged only a misdemeanor and then even dropped that charge in exchange for an apology, a fine, and three months’ probation. [Reference omitted]

Also curiously escaping the administration’s reliance on Section 1512(c)(2) are scores of pro-Hamas protestors who occupied Capitol buildings to advocate for Congress to back a ceasefire in Gaza. [Reference omitted] Again, this easily fits within the government’s scope of Section 1512(c)(2). And again, because those protestors are not conservatives, they face no possibility of prosecution under Section 1512(c)(2).

As stated in the Brief once you start applying Section 1512(c)(2) to activities unrelated to evidentiary proceedings there really are no limits. But this is something that has been in play for awhile —

The government first began trying to charge President Trump with a violation of Section 1512(c) during the Department of Justice’s investigation into potential Russian interference in the 2016 presidential election. The Mueller report dedicated an entire section to rebutting defenses to Section 1512(c)(2). See 2 Robert S. Mueller, III, U.S. Dep’t of Just., Report on the Investigation Into Russian Interference in the 2016 Presidential Election 159– 178 (Mar. 2019). The government’s theory then was that President Trump “obstructed” the “proceeding” of some executive officials investigating claims of Russian interference in the election by exercising his Article II powers to direct officials and make personnel decisions, such as by firing former FBI director James Comey.

But as former Attorney General Bill Barr then explained to the Department, the Mueller report relied on a “new unbounded interpretation” of Section 1512(c)(2) that would prohibit even “facially-lawful acts taken by public officials exercising [] their discretionary powers if those acts influence a proceeding.” Memorandum of Bill Barr to Deputy Att’y Gen. Rod Rosenstein & Assistant Att’y Gen. Steve Engel (June 8, 2018), http://tinyurl.com/ mrx7xaau. Trump was “not being accused of engaging in any wrongful act of evidence impairment.” Id.

This history, combined with the government’s treatment of January 6 defendants and President Trump, confirms that the government’s abuse of Section 1512(c)(2) is no aberration. The government will use it as an all-purpose cudgel against its political opponents, be they low profile or the highest profile. This Court should issue a clear rebuke of the government’s interpretation. The peril of improper political motivations in pursuing these convictions is otherwise simply too great.

The Brief truly exposes the naked exercise of power aided and abetted by the DC courts.

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There are 14 comments.

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  1. Red Herring Coolidge
    Red Herring
    @EHerring

    The real history of J6 should not be the 3 hour riot and “unlawful parading,” but the totalitarian, eerily Marxist, abuse of power exercised by one political power to punish the opposing party and citizens. The wound won’t heal. Distrust won’t go away anytime soon, if at all. Several judges must be disbarred, most prisoners must be released, and most should receive some sort of restitution. 

    • #1
  2. Globalitarian Lower Order Misanthropist Coolidge
    Globalitarian Lower Order Misanthropist
    @Flicker

    Red Herring (View Comment):
    The wound won’t heal. Distrust won’t go away anytime soon, if at all. Several judges must be disbarred, most prisoners must be released, and most should receive some sort of restitution. 

    The Civil War didn’t heal; it led to a hundred year of Jim Crow.  If the republic stands, this won’t be forgotten either.

    • #2
  3. EODmom Coolidge
    EODmom
    @EODmom

    Red Herring (View Comment):

    The real history of J6 should not be the 3 hour riot and “unlawful parading,” but the totalitarian, eerily Marxist, abuse of power exercised by one political power to punish the opposing party and citizens. The wound won’t heal. Distrust won’t go away anytime soon, if at all. Several judges must be disbarred, most prisoners must be released, and most should receive some sort of restitution.

    Don’t forget the released without ever given a trial for 3 years part. 

    • #3
  4. Archibald Campbell Member
    Archibald Campbell
    @ArchieCampbell

    This gets a like just for the title.

    • #4
  5. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    Very impressive effort by Cotton. Now let’s see if the judges have the guts to pay attention to it!

    • #5
  6. philo Member
    philo
    @philo

    Red Herring (View Comment): The real history of J6 should not be the 3 hour riot and “unlawful parading,” but the totalitarian, eerily Marxist, abuse of power exercised by one political power to punish the opposing party and citizens. …

    And the deafening silence on this matter from sea to shining sea. 

    • #6
  7. Red Herring Coolidge
    Red Herring
    @EHerring

    Globalitarian Lower Order Misa… (View Comment):

    Red Herring (View Comment):
    The wound won’t heal. Distrust won’t go away anytime soon, if at all. Several judges must be disbarred, most prisoners must be released, and most should receive some sort of restitution.

    The Civil War didn’t heal; it led to a hundred year of Jim Crow. If the republic stands, this won’t be forgotten either.

    It is our duty to never forget.

    • #7
  8. Stad Coolidge
    Stad
    @Stad

    Rodin: Ok, I couldn’t resist the title.

    I don’t blame you!

    • #8
  9. KCVolunteer Lincoln
    KCVolunteer
    @KCVolunteer

    What about the illegitimate Jan 6 Committee, and their destruction of evidence?

    • #9
  10. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    As we type out our replies to Rodin’s essay, the way to “have a legit steal of an election” is underway.

    Already today, the drop boxes for ballots for the Calif March 5th Primary are open and ready to receive ballots.

    On top of that, a neighbor who applied for food stamps discovered that way in the back of the 45 page booklet of application info which she received was a half page of legalese which  stipulates that if the half page is not filled out, then it will be possible for the Secretary of State to disqualify the applicant from the voting roles, as the Secretary  of State’s discretion, right? (I take this to mean that the discrete Secr of State’s voting oversight people will allow Dems to forego filling out that page while those of an indie or Republican nature will have to fill it out or ELSE.)

    Now when a person goes in for renewal or application of a driver’s license, they are always asked if they are already registered or if they want to register to vote.

    But the harried social workers fail to point to this weird inclusion of a need to re-renew one’s voting status while applying for benefits. (These workers are now seeing numerous applicants- perhaps a 50 to 75% increase over last year – due to the local utilities taking as much money away from consumers as the bank’s mortgage or landlord’s rental agreements require each month.)

    I have the feeling that this is just the tip of the iceberg in terms of the Dems legitimizing the way an election can be swung over to suit their needs.

    • #10
  11. The Reticulator Member
    The Reticulator
    @TheReticulator

    That’s good work by Senator Cotton et al, but did it say anything about the need for Congress to be more careful with the words it uses when writing legislation?   

    • #11
  12. Red Herring Coolidge
    Red Herring
    @EHerring

    Foreign interference in our elections is illegal.  Charge illegals with violating that and deport them if they vote.

    • #12
  13. Rodin Member
    Rodin
    @Rodin

    The Reticulator (View Comment):

    That’s good work by Senator Cotton et al, but did it say anything about the need for Congress to be more careful with the words it uses when writing legislation?

    No. That is always required as courts have struck them down for vagueness and over breadth. But as the Brief outlines, past rules of construction that existed at the time this law was passed would have resulted in the district court declining the 1512 (c)(2) charges in the absence of any showing that the defendant was engaged in behavior to frustrate, mislead, or delay an evidentiary hearing. Although I want to avoid mind reading, it is a fair conclusion that the prosecutors and courts seemed to be willing to ignore the context of the statute to serve some purpose that is not in accord with due process of law.

    Basically the government and the court Ruparred the statute. I am not sure how Congress can be careful enough if Ruparring is permitted by the courts.

    • #13
  14. The Reticulator Member
    The Reticulator
    @TheReticulator

    Rodin (View Comment):

    The Reticulator (View Comment):

    That’s good work by Senator Cotton et al, but did it say anything about the need for Congress to be more careful with the words it uses when writing legislation?

    No. That is always required as courts have struck them down for vagueness and over breadth. But as the Brief outlines, past rules of construction that existed at the time this law was passed would have resulted in the district court declining the 1512 (c)(2) charges in the absence of any showing that the defendant was engaged in behavior to frustrate, mislead, or delay an evidentiary hearing. Although I want to avoid mind reading, it is a fair conclusion that the prosecutors and courts seemed to be willing to ignore the context of the statute to serve some purpose that is not in accord with due process of law.

    Basically the government and the court Ruparred the statute. I am not sure how Congress can be careful enough if Ruparring is permitted by the courts.

    Sounds  reasonable enough. 

    • #14
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