Supreme Court administers some sanity to an insane Justice Department
ROBERT W MALONE MD, MS JUN 29, 2024
“We are all grateful to the Supreme Court for standing up for the depoliticized common sense that a person obstructs justice only if he impairs evidence.”
Nicholas Smith- The attorney who argued Fischer before the Supreme Court
Readers of this Substack may recall a prior post that included the brave but bizarre story of Mr. John Strand, who was sentenced to a 32-month prison term for entering the capital on January 06 as a bodyguard for Dr. Simone Gold, MD, JD.
Dr. Gold, a leader of America’s Frontline Doctors group, pleaded guilty to lesser J6 charges, was sentenced to jail, completed her 60-day prison term for misdemeanor trespassing, and was released. John would not accept the plea deal offered by the Biden Department of “Justice.” After he refused the plea deal, he had a rather cooked set of contrived charges thrown at him. This was followed by yet more examples of how corporate media will aggressively smear those who are labeled as enemies of the Blob/Administrative state. This whole sordid affair represents another case of arbitrary and capricious weaponization of the government against political opponents by the Biden administration and its lapdog media.
By way of disclosure of any appearance of a potential conflict of interest, I respect Dr. Simone Gold and consider her both a friend and a valued professional colleague. I am not a member of America’s Frontline Doctors, but have been honored to speak by invitation at some of their events.
As a consequence of today’s Supreme Court ruling in Fischer v. United States, John Strand will hopefully be released within the next three weeks. He has been tested in the crucible of history, passed the test with his integrity intact, and retained ownership of his soul. In my opinion, he deserves a hero’s welcome upon his release.
You can learn more about John Strand and his story at his website, or via The following Epoch Times documentaries:
Part 2 features John’s story
The Real Story of January 6 Part 2: The Long Road Home
Additional information can be found at the bottom of this Substack post.
In the official Americas Frontline Doctors press release published below, Dr. Gold has summarized the context, meaning, and details of today’s Supreme Court decision in the case of Fischer v United States.
SCOTUS Delivers Historic Fischer v. USA Ruling
Politically Persecuted J6 Defendants Advance Toward Justice
Washington, DC. – June 28, 2024. The High Court’s decision has brought down the entire house of cards that is the selective prosecution of the J6 defendants by the DOJ and has proven that the United States of America still operates under the rule of law.
On Friday, June 28, 2024, SCOTUS delivered a 6-3 decision in the landmark Fischer v. USA case. Chief Justice Roberts delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh, and Jackson joined. Jackson filed a concurring opinion. Barrett filed a dissenting opinion, in which Sotomayor and Kagan joined.
“To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).”
- Chief Justice Roberts
AFLDS applauds SCOTUS for recognizing and correcting the tremendous miscarriage of justice perpetrated on hundreds of ordinary Americans across the country. The federal government’s weaponization of 18 USC § 1512(c)(2) was unquestionably used to charge the J6 defendants with a maximized 20-year felony and punish them for daring to exercise their First Amendment right to protest the actions of their elected officials.
To date, more than 355 J6 defendants have been unjustly charged with “corruptly” obstructing, influencing, or impeding an official proceeding or attempting to do so. Many have been sentenced to prison time ranging from 8 months to more than 4 years, and over 100 are still political prisoners today.
As stated by AFLDS’ affiliate attorney, David Dalia:
“The statute at issue in Fischer, 18 U.S.C. § 1512, is titled ‘Tampering with a witness, victim or an informant.” 18 U.S.C. § 1512(c)(1) punishes anyone who ‘alters, destroys, mutilates, or conceals’ evidence. None of the J6 defendants tampered with any evidence. So it’s very gratifying that the Supreme Court in Fischer decided today that the (c) (2) residuary clause must be read narrowly , and that the ‘otherwise’ provision of §1512(c)(2) is limited by the list of specific ‘evidence tampering’ criminal violations that precede it in (c)(1). The residuary clause does NOT extend to acts unrelated to evidence tampering, such as mere misdemeanor trespass.”
Mr. Dalia continued,
“This § 1512(c)(2) residuary clause was relentlessly stretched by the DOJ to overcharge the J6 defendants for mere misdemeanor trespass, unlawfully giving the DOJ powerful leverage to wring plea agreements from defendants under the threat of illegal and extremely lengthy felony prison terms. Although J6 defendants were incessantly branded by the mainstream media as ‘insurrectionists,’ not one person was ever charged with insurrection, which ‘only’ carries a 10 year prison term. Instead, all were charged with §1512(c)(2)’s 20-year prison term. Thankfully, this unjust overcharge was rejected today by SCOTUS. Now all of the J6 defendants are entitled to have their long jail sentences immediately recalculated. In the vast majority of cases, this should result in their release. Relief for these long-suffering J6 defendants cannot come soon enough.”
In response to SCOTUS’ ruling in the Fischer Case, AFLDS Founder and President Dr. Simone Gold, firmly declared that the High Court’s decision is a “critical step for preserving the rule of law in our nation. With >300,000 federal statutes providing pretext for federal prosecutors to target and selectively persecute anyone with an unrelated felony charge, SCOTUS has averted a dangerous precedent that would have been felt far beyond Fischer. This is a victory for all Americans and a monumental defeat for those attempting to legalize fascism in our country.”
Dr. Gold added, “This is also a very personal victory to me. I faced this felony charge and chose to accept a plea deal because of the lengthy 20-year sentence. My friend and co-worker, John Strand, is currently serving a 30-month sentence in federal prison because he refused to accept a plea for this dishonest - and now definitively illegal - charge.”
The High Court’s ruling sends a clear message that the selective persecution of the government’s “political enemies” will not be tolerated in the United States of America. AFLDS stands in solidarity with the J6 prisoners and their families. We will continue to fight for our First Amendment right to free speech and the right to peaceably assemble.
If you would like to see an example of how this statute was illegally used as a weapon to silence political protesters, please visit the website of AFLDS Creative Director JohnStrand.com and watch the video and please consider a donation to his legal defense.
John Strand is still in prison.
For those legal beagles seeking more details-
The full SCOTUS majority decision can be found here.
In a recent speech preceding today’s decision, Physician/Lawyer/J6 convict Dr. Gold summarized the case and arguments against the tortured logic of the pleadings brought by the Biden Justice Department.
The Fischer appeal poses two legal questions for the SC to decide, and both questions implicate thousands of laws in this country. One is to define the word “corruptly” and the other is whether a subset of a statute can be divorced from its parent. Let us first explain the specific felony statute.
18 USC §1512(c)(2) is part of the “Corporate Fraud Accountability Act of 2002” and its title is “Tampering with a witness, victim, or an informant”. Witness tampering ranges from murder to violence to threats to shredding documents. Congress enacted the subsection (c)2 to capture bad corporate actors who shred documents, specifically in response to Enron’s massive accounting fraud and the destruction of evidence by its accounting firm. In fact, §1512(c)2 is universally known as “the Arthur Anderson loophole.”
Both the Legislative and Executive Branches expressly stated that the intent of the (c)2 subsection is to indict corporate bad actors. Congress said: “This law is a … response to the Enron and WorldCom scandals to restrain corporate bad actors – not regular citizens protesting the actions of their elected officials in a public government building.” And when President George W. Bush signed this law in July 2002 he said: “the executive branch shall construe the term ‘corruptly’ in section §1512(c)(2) as requiring proof of a criminal state of mind on the part of the defendant.”
And indeed, for two decades and in thousands of cases, never has the government used this statute against ordinary citizens in a political protest. Not once prior to January 6, nor post January 6:
1. None of the thousands of Kavanaugh protestors who occupied the Hart Senate Office building or who banged on the doors of the Supreme Court in October 2018, faced the felony “obstruction of an official proceeding” charge.
2. None of the thousands of protestors who rioted during Trump’s inauguration faced the felony “obstruction of an official proceeding” charge.
3. Senator Elizabeth Warren did not face “obstruction of an official proceeding” charge when she ignited a crowd that later stormed the Senate building and directly harassed U.S. Senators.
4. Democrat Congressman Jamaal Bowman pulled a fire alarm on Oct 25, 2023 to delay a Congressional vote – in other words to obstruct an official proceeding – but was never charged.
But hundreds of ordinary protestors on J6, who possessed no evidence of anything, were charged with this “Arthur Anderson loophole” of obstructing evidence. In addition to requiring actual evidence (such as documents to shred), this statute also requires that any such obstruction be done for a corrupt purpose. Which brings us to the first legal question for SCOTUS. The government must show proof that a defendant acted corruptly. Fischer appealed b/c the govt. did not show corrupt intent.
The DC District Judges and many of the DC Appellate Judges seem bewildered about what “acting corruptly” means, even though for centuries “acting corruptly” was defined as acting “with an intent to procure an unlawful benefit for himself.” In addition, the President who signed this law, specifically stated it must “require proof of a criminal state of mind on the part of the defendant.” Nonetheless, the prosecutors and Judges appear befuddled on this point.
Law School 101 teaches that to break a law, a person must do two things. The person must do the action of breaking the law and the person must have the intention to break the law (that is: have the “criminal state of mind.”) [Because people accidentally break laws all the time. For example, a blind man who bumps into another person is not charged with assault & battery as he did not intend to bump into the person even though he actually did.] Doing the crime is called the “actus rea” and having the intent (mindset) Mto do the crime is called the “mens rea.” Both are required.
In J6 cases, the government simply evaporated the mens rea requirement. The government’s position is that each defendant had a corrupt intent (mens rea) because his (or her) being present (actus rea) proved a corrupt intent (mens rea). This circular reasoning completely evaporates the requirement of mens rea, making every person susceptible to felony charges all the time.
The book “Three Felonies a Day” describes how prosecutors can now charge almost anybody because federal statutes have become so disconnected from English common law. There are now tens of thousands of federal statutes from which prosecutors can select a vague and/or technical prohibition and charge any person with a felony. And that is exactly what happened to J6 defendants: prosecutors picked an unrelated 20-year felony, and then selectively charged the people it wanted to charge. Consider that the reason 18 USC §1512c2 passed in 2002 was because of the Enron financial securities scandal and the fact that the accounting firm Arthur Anderson “shred tons of paper documents and electronic information,” became morphed into incarcerating hundreds of non-corporate “bad actors” (otherwise known as protestors).
Again, at the time Congress passed the Sarbanes-Oxley Act, it went to great lengths to state this statute was to increase the criminal penalty against industry giants committing high-level fraud. Congress said: “We must crack down on the corporate criminals and rebuilt America’s confidence in our markets … we must punish the corporate wrongdoers and punish them harshly.” President Bush specifically warned us in plain English never to use this statute to charge civilian protestors, but that is exactly what happened with J6: hundreds of ordinary Americans were charged with a 20-year felony that has nothing to do with them.
If you think I am exaggerating, how do you explain that hundreds of ordinary people are imprisoned, but the CFO of Enron, Andrew Fastow, served five years and the Arthur Anderson partner David Duncan served no time at all. In other words, the real problem is that there are nearly infinite laws on the books that provide a pretext for federal prosecutors to do what they want!
It did not matter that the charge violated the explicitly stated words of Congress who drafted it and the President who signed it; it did not matter that the charge contradicted the way the statute had been used thousands of times over decades; and did not matter that the plain English language of the statute did not support the charge. Once a weaponized DOJ decided to use it this way, all the US prosecutors fell into line, all the Judges rolled over, hundreds of ordinary Americans endured violent SWAT teams arrests, thousands were thrown into prison or threatened with prison, and another 100,000 more are anxious about it. [Excuse me, not ordinary Americans: superior Americans. People who read and carried the Constitution, fathers husbands and brothers who served in our formerly great military, people who still, to this day, believe in Gd and country so much that for more than 1,000 consecutive days they have sang the national anthem nightly from behind bars.]
Virtually all the DC Judges and many of the DC Appellate Judges agreed that the actus rea of being present proved a mens rea of corrupt intent. Yelling foul at this legal fiction were several dozen criminal defense attorneys, hundreds of J6 defendants, the Epoch Times, and Julie Kelly. The most brilliant jurist on the DC Appellate Court (Judge Katsas) finally ruled on the Fischer case and clarified for his hysterical peers that having a “corrupt intent” is required by plain reading and by precedent. There are three reasons why the government is wrong. [First the government’s interpretation is so broad, it encompasses almost any behavior. If there is no corrupt intent, then any conduct that affects any official proceeding (such as lobbying) could be deemed illegal. Second, SC precedent frowns on “improbably broad and unconstitutional interpretations of criminal statutes.” Third, ambiguity in a criminal statute always favors the defendant.]
[First, [§1512(c) is much too broad] if no corrupt intent is required, then any conduct that affects any official proceeding (such as lobbying) could be deemed illegal. “The government’s breathtakingly broad definition of “corrupt” would “lump together conduct warranting up to three decades of imprisonment with conduct warranting at most three years.” It would collapse virtually all of §1512 together, conflating dozens of lower and higher offenses. This is why Congress limited the actus reus of the obstruction crime to conduct that destroys evidence.
Second, Katsas notes that the Supreme Court rejects “improbably broad interpretations of criminal statutes” and “disfavors interpretations that would make a statute unconstitutional.” “Here, the government’s interpretation would make section 1512(c)(2) both improbably broad and unconstitutional.” And Supreme Court precedent requires restraint and leniency: “Courts should not assign federal criminal statutes a ‘breathtaking’ scope when a narrower reading is reasonable.”
Third Katsas notes that if 1512c2 is ambiguous, ambiguity always favors the defendant. He explains that the government’s interpretations would “swallow up all the immediately preceding subsections, entire statute, and the entire chapter” and says “I am unaware of any case resolving ambiguity in favor of wholesale redundancy.” He then says the plain text of 1512c2 argues “against the government’s all-encompassing interpretation.”]
The Second issue: is whether a subset of a statute can be divorced from its parent.
Chapter 73 of the federal criminal code is “Obstruction of Justice” and it is 15,000 words and >30 pages long. §1512c2 is just one tiny subsection among hundreds of subsections in this chapter. With a straight face, the government has been arguing that a subparagraph, nestled inside a subsection, found in the middle of 19 otherwise narrow prohibitions, is actually a stand-alone “all-encompassing clause.” This absurd reasoning led to the best one-liner I’ve ever read in a judicial opinion: “[Congress] … does not, one might say, hide elephants in mouseholes.” No; it does not.
Chapter 73 lists escalating penalties depending upon the facts. For example, picketing and parading carries a maximum one-year penalty; threatening force carries a 5–10-year penalty; and shredding or falsifying evidence carries a 20-year penalty. The government’s interpretation collapsed all of this, making any form of obstructing an official proceeding a 20-year felony. For example, a congressman who pulls a fire alarm five minutes before a House vote would have to be charged with a 20-year felony. Unless he’s a Democrat.
Conclusion
SCOTUS will have to void the felony charge for Fischer or evaporate the concept of mens rea (intent); eliminate the plain English meaning of the phrase “acting corruptly”; ignore Congressional and Executive intent; and redefine infinite federal subsections to become all-encompassing stand-alone clauses. Its decision will be felt far beyond this one statute, this one day, this one cohort.
If SCOTUS sets arson to decades of precedent, centuries of common law, and the plain meaning of the English language, then we are no longer operating under the rule of law.
https://rwmalonemd.substack.com/p/a-modicum-of-j6-justice-fischer-v?publication_id=583200&post_id=146093738&isFreemail=true&r=16ettj&triedRedirect=true