Thread by @MuellerSheWrote

THREAD: Good morning! Oral arguments are about to begin in Fischer v US. This is the case about the interpretation of Title 18 USC 1512c2 Obstructing an Official Proceeding. I'm going to do my best to live tweet the arguments. 1/

For background, over 300 insurrectionists and trump himself are charged with 1512c2. It carries a maximum 20 year sentence. Several insurrectionists challenged the meaning of this law, but only ONE judge out of 14 went along with this nonsense. 2/

The nonsense being that the word "otherwise" connects 1512c1 and 1512c2 in such a way that the "documents" mentioned in 1512c1 apply to 1512c2. Fischer argued "since I only attacked the capitol and didn't mess with documents, I shouldn't be charged with this" 3/

Here's the language of 1512c1 and 1512c2 so you can judge for yourself: 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 4/

It's pretty clear to me that 1512c2 is a catchall for the stuff not mentioned in 1. Keep in mind, Jack Smith wrote the trump indictment in such a way that even if SCOTUS goes with that one judge (Nichols, a trump appointee) today, that trump's 1512c2 charge would still stand because he DID attempt to mutilate documents - namely the electoral certificates. 5/

This could, however, impact the 300+ cases of insurrectionists, and I imagine that if SCOTUS rules for Fischer, trump will file motions to dismiss based on this ruling that would have to be litigated - potentially causing more delay in his 1/6 trial. 6/

Here we go: Green is up first. Clarence Thomas is here and asks how these two statutes are connected. Green is arguing the "otherwise" clause (c2) refers to (c1) and isn't a catchall/standalone. He says "otherwise" means "impairing a document" in a different way 7/

Sotomayor says hang on a second, If there's a sign in a theater that says you can be kicked out for yelling or screaming, or otherwise causing a disruption, and you start a fight, seems clear you can be kicked out under the "otherwise" provision without needing to scream or yell. 8

With this statute, c1 doesn't mention a proceeding, but c2 does. You actually have to obstruct in c2. Barrett says "do you agree the government could take a shot at proving your client obstructed evidence because he DID try to obstruct the counting of certificates? 9

Green says no. Attempting to stop a vote count is very different from altering, or creating a new false document (that's what trump did by the way). But Barrett says trying to stop the certificates from making it there seems like it's evidence related. 10/

Green says if you disclose a witness list, my purpose would be to intimidate witnesses, and that would violate c2 without impairment. Jackson says "you keep using the term "evidence", and that word isn't in the statute. So where does it come in? 11/

Green says our position doesn't limit it to documents or records. It could cover communications, emails, electronic communications - things used by fact finders in a formal hearing. 12/

Anything falsified in an operative way that's used to obstruct a proceeding would be covered by c2 he says. Kagan says there are plenty of ways to write the statute you want to write, but that's not what this says here. What c2 does not say is that everything in c2 has to do with evidence spoliation. 13/

Kagan says "what's your best case" in trying to connect these two sections, and Green says Begay. Kagan says that's not a great advertisement to take this otherwise provision and turn it into something else. 14/

So far, Thomas seems like the only justice that might be entertaining Green's arguments.

Green is tying himself into knots to make Fischer's reading of c2 more plausible than the government's. None of the justices are buying it. It's not going well for him.

The justices seem to be reading c2 as a backstop provision to fill gaps that might exist.

Green argues 1519 is supposed to be the backstop.

Sotomayor says she has "such a hard time" with the superfluidity argument.

Green now argues that "it's a weird place to put a backstop" within the statute. lol. Wow. These are super weird arguments. Sotomayor says we've never had a situation before where people have tried to stop a proceeding violently, so a lack of history proves nothing.

Kavanaugh asks "if the word otherwise wasnt there, would this be a proper use of the statute?" Green says no. Even if "otherwise" weren't there, c2 should still be read as evidence spoilage. Kavanaugh says "what if you didn't have c1 or "otherwise". Green says you'd still have a problem (wow)

Barrett asks if the intent parenthetical carry over to c2? Green says yes. Barret says "how can that be? c2 would read oddly" if you put it all together. Green says yeah it's an awkward statute lol

Barrett doesn't seem to be buying it, but let's wait to see how she treats the goverment.

Jackson asks if Green's theory is too narrow. Would you still have a decent argument if the 1512 language is read to prevent corrupt tampering with things used to conduct a proceeding undermining the thing or access to the thing. It's not just evidence. It's a proceeding. c1 is corrupt tampering, and c2 broadens it out a bit, it's not just documents or records.

Jackson says you say the activity has to be to the document. Alito and Barrett seem to agree c2 covers other things. Why doesn't c2 cover obstructing the counting of electoral votes? Green says because the certificates weren't damaged or altered.

Jackson reminds him that tampering with the availability of the document is in the statute.

Prelogar is up for the DoJ. In plain english, the fundamental wrong was a deliberate attempt to stop congress from certifying the election. Did petitioner obstruct or impeded the official proceeding? Yes, therefore violating the plain language of the statute.

1512c2 is a classic catch-all. "otherwise" means in a different manner. Thomas says "there have been many violent protests that have interfered with proceedings. has the government applied this statute to other violent protests?

Prelogar says DoJ has prosecuted under this provision, but as for violently attacking a building to obstruct an official proceeding, she doesn't have another example because nothing like 1/6 had ever happened before.

Thomas says in the way you're reading it, c2 almost acts in isolation. What do c1 an c2 have in common? Roberts says he believes "otherwise" should be read as "other ways". Oof. He believes the verbs and nouns in c1 should carry forward into c2.

Roberts: Alters, destroys, mutilates a record or document. What you do and what you're doing it to. When you apply that doctrine as we did on Friday, it responds to concerns being raised by how broad it is and that c2 doesn't stand alone.

"So what work does "otherwise" do? It makes clear that what's in c2 doesn't cover what c1 does.

Would a sit in that disrupts a trial qualify? Would a heckler in today's audience or at the state of the union qualify? would pulling a fire alarm before a vote qualify?

Many of those things couldn't charge. The Actus Reus does require obstruction, which would be a meaninful interference. "Okay so my outburst causes the trial to be reconvened, or the sit in makes the courthouse hard to get to, or pulling the fire alarm causes the vote to be rescheduled. Should they face 20 years?"

If it's done corruptly with the intent to obstruct, then yes. Prelogar says the government would have a hard time proving that a peaceful protest that actually obstructed an official proceeding was done corruptly.

They conservative justices are really going after her with hypotheticals. She's arguing that the statute requires significant obstruction and corrupt intent and DoJ reads the actus reus more narrowly. Prelogar says it would be very difficult to prosecute a sit in becasue the participants would have likely believed they had a right to assemble. But if they stormed the court and overran the police? Both scenarios want to obstruct.

Prelogar than explains all the evidence they bring to prove 1512c2. She notes that out of over 1500 defendants so far, only about 350 meet the stringent mens rea in 1512c2. And there have been some acquittals because the government couldn't meet the intent provision - like someone who didn't know congress was in session.

It seems like the liberal justices are with the government here. As far as the extreme wing of the court? Seems like they don't agree with Fischer, but it also seems like they'd like to further narrow 1512c2 - but perhaps not enough to exclude the government's 1/6 charges. I don't think trump's charge is in danger at all.

Barrett asks if Prelogar is putting a violence requirement on c2. She says no, and that the nexus requirement and stringent mens rea sufficiently narrow the statute to not cover Alito's hypotheticals.

Just a side note: Justice Thomas is a condescending prick. He's laugh-talking at Prelogar like she's an idiot, when he's the one asking bad questions.

The conservative justices keep asking of their lame hypotheticals "do you think that's worth 20 years in prison?" Prelogar says look, we have sentencing guidelines, so stop using statutory maximums for statutes with no mandatory minimum to frame your bullshit hypotheticals. (I'm paraphrasing)

She notes that the average sentences for many of the insurrectionists charged under c2 is 6 to 12 months, and the mean is 24 months. So sentencing guidelines make a difference.

Green is up for rebuttal. He's arguing that even though the government requires evidence of intent to obstruct a specific proceeding, the way the statute is written means the J6 defendants could be charged if they showed up on January 5th. (that's not true), and continues to wrongly argue about the 20 year max applying to peaceful protests.

And that's it. Court is adjourned. END/