Thread by @McAdooGordon

To explain this 👇🏻 a bit.

First, here is the memo if you want to read it:

drive.google.com/file/d/1ztChjH…

I write this memo two years ago and sent it to lawyers who are on the list serve for the defense counsel on the J6 cases to circulate to anyone defending those cases. I also sent it to the public defender.

I wanted all the defense lawyers to have access to the argument.

As most of you know, the DOJ jacked up the cases on J6 defendants by charging them with obstruction of justice under 18 USC 1512. I think that is a misuse of the statute, & as you know the SCOTUS is set to hear argument on that point in April.

In addition to turning a lot of low level misdemeanor vases into felony cases, using 1512 also really jacked up the sentences under the Sentencing Guidelines, because the Obstruction Guideline adds up to 11 levels based on 2 enhancements for “obstructing justice” in certain ways.

My analysis of the Guidelines suggested that even if 1512 could reach to obstruction of Congress in the new way that DOJ has basically made up for J6, that the conduct still doesn’t fit within the definition of “obstruction” IN THE GUIDELINES, so the 11 levels can’t be added.

That radically reduces the sentences that 1512 produces in J6 cases, even if 1512 applies to the J6 facts (which I think it doesn’t & I’m hoping the SCOTUS rules in the Fischer case.)

11 levels can be as much as 30 months difference in the sentencing range.

A bunch of the defense lawyers made this argument in the J6 cases. The DC trial judges overwhelmingly rejected the reasoning in my memo for 99.9% of the cases/lawyers who argued it. @shipwreckedcrew says that to his knowledge only Judge McFadden agreed with the argument.

@shipwreckedcrew Some judges just blew off the argument and smirked at it.

I can’t take credit for every lawyer arguing this, of course. I would expect that some of them arrived at this conclusion themselves and I don’t know if Brock’s lawyers (the case decided today) ever saw the memo.

@shipwreckedcrew But the DC Circuit today ruled, 3-0, (2 Obama judges & a Clinton judge) that the argument in my memo is correct, which means all the sentences imposed using the two obstruction enhancements now need to be redone - and significantly reduced sentences imposed.

@shipwreckedcrew Some J6 defendants will likely be released soon because of this, as their original sentences are now unlawful under the Guidelines.

As I say, this ruling will help J6 defendants even if the SCOTUS upholds DOJ’s use of 1512.

@shipwreckedcrew Of course, if SCOTUS strikes down DOJ’s construction of 1512, this Guidelines analysis will apply to fewer cases, although there will still be some.

The Sentencing Commission could also change the Guideline definitions later, but that can’t be applied retroactively.

@shipwreckedcrew The fact that the Guidelines don’t cover the J6 situation also serves as a small data point in the discussion of whether 1512 applies in the way DOJ is claiming, although it’s far from dispositive.

@shipwreckedcrew DOJ could file a cert petition with SCOTUS to try to overrule the DC Circuit, in theory. But it’s probably unlikely that the Solicitor General’s office will see this as a good case. Of course that’s under normal circumstances, so we’ll see.