No.

23-5572
444444444444444444444444444444444444444444
IN THE
Supreme Court of the United States
____________________
JOSEPH W. FISCHER,
Petitioner,
v.
UNITED STATES,
Respondent.
____________________
On Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
____________________
Brief Amicus Curiae of
America’s Future, Gun Owners of America,
Gun Owners Fdn., Gun Owners of Cal.,
Citizens United, Citizens United Foundation,
The Presidential Coalition, Tennessee
Firearms Assn., U.S. Constitutional Rights
Legal Def. Fund, and Conservative Legal Def.
and Ed. Fund in Support of Petitioner
____________________
PATRICK M. MCSWEENEY WILLIAM J. OLSON*
Powhatan, VA JEREMIAH L. MORGAN
JAMES N. CLYMER ROBERT J. OLSON
Lancaster, PA WILLIAM J. OLSON, P.C.
J. MARK BREWER 370 Maple Ave. W., Ste. 4
Houston, TX Vienna, VA 22180
MICHAEL BOOS (703) 356-5070
Washington, DC [email protected]
DANIEL H. JORJANI Attorneys for Amici Curiae
Washington, DC *Counsel of Record
JOHN I. HARRIS, III
Nashville, TN February 5, 2024
444444444444444444444444444444444444444444
 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

I. THE CIRCUIT COURT’S REASONS FOR

APPROVING THE JUSTICE DEPARTMENT’S NEW
INTERPRETATION OF 18 U.S.C. § 1512(C)(2) TO
APPLY TO JANUARY 6 PROTESTORS ARE
UNPERSUASIVE . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. THE CIRCUIT COURT’S EMBRACE OF A

FABRICATED JANUARY 6 NARRATIVE
APPARENTLY INSPIRED IT TO SANCTION A
REINTERPRETATION OF SARBANES-OXLEY . . . . 13

A. The Court Below Presumed the Truth of

the Government’s “Insurrection”
Narrative about January 6 . . . . . . . . . . . . 13

B. Much Is Not Known about the Violence

on January 6 . . . . . . . . . . . . . . . . . . . . . . . 16

C. Not Allowing “Fear and the Desire for

Safety” to Drive a Decision . . . . . . . . . . . . 19
 ii

III. AS NEWLY INTERPRETED BY THE BIDEN

ADMINISTRATION, SECTION 1512(C)(2)
CRIMINALIZES ACTIVITIES PROTECTED BY THE
FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 20

A. Freedom of Speech . . . . . . . . . . . . . . . . . . 22

B. Freedoms of Assembly and Petition . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
 iii

TABLE OF AUTHORITIES
Page
CONSTITUTION
Amendment I . . . . . . . . . . . . . . . . . . . 6, 20-22, 25, 29

STATUTES
18 U.S.C. § 1512 . . . . . . . . . . . . . . . . . . 10, 11, 21, 24
18 U.S.C. § 1512(c) . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
18 U.S.C. § 1512(c)(1). . . . . . . . . . . . . . . . . . . . 5, 8, 9
18 U.S.C. § 1512(c)(2). . . 2-9, 11-12, 14-15, 20-22, 24
18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

CASES
Arizona v. Mayorkas, 143 S. Ct. 1312 (2023) . . 6, 19
Arthur Andersen LLP v. United States, 544 U.S.
696 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bostock v. Clayton County, 140 S. Ct. 1827
(2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Colten v. Ky., 407 U.S. 104 (1972) . . . . . . . . . . . . . 23
DeJonge v. Oregon, 299 U.S. 353 (1937) . . . . . . 26-28
Roman Catholic Diocese v. Cuomo, 141 S. Ct.
63 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Terminiello v. Chicago, 337 U.S. 1 (1949) . . . . 23, 24
United States v. Cruikshank, 92 U.S. 542 (1876) . 27
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

MISCELLANEOUS
M. Alfaro, “House Jan. 6 committee dismisses
‘unsupported’ claim of FBI involvement in
riot,” Washington Post (Jan. 11, 2022) . . . . . . 17
W. Arkin, “Donald Trump Followers Targeted
by FBI as 2024 Election Nears,” Newsweek
(Oct. 4, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
 iv

S. Arnold, “Jan. 6 Committee Caught ‘Lying

and Altering Evidence,’” TownHall.com
(June 12, 2022). . . . . . . . . . . . . . . . . . . . . . . . . 17
S. Arnold, “U.S. Attorney Suggests DOJ Will
Target Americans Who Stood Outside the
Capitol on Jan 6,” Townhall (Jan. 7, 2024) . . 26
“The Capitol Riot: A Chronology,” National
Security Archive . . . . . . . . . . . . . . . . . . . . . . . . 14
Tucker Carlson Interview of Cong. Clay
Higgins (Jan. 8, 2024) . . . . . . . . . . . . . . . . . . . 29
Tucker Carlson, “This video tells a different
story of Jan 6,” Fox News . . . . . . . . . . . . . . . . 18
J. Cassidy, “Joe Biden Makes Saving Democracy
the Center of His Campaign,” The New
Yorker (Jan. 4, 2024) . . . . . . . . . . . . . . . . . . . . 16
M. Cohen and H. Lybrand, “‘We’re getting all
kinds of threats’: Judge says defiant US
Capitol rioters are fueling threats from
Trump supporters,” CNN (Oct. 22, 2021) . 14, 15
P. Coleman, ENRON: Crooks in Suits (2017) . . . . . 9
“Confession of Error: The Solicitor General’s
Mistakes During the Japanese-American
Internment Cases,” U.S. Department of
Justice (May 20, 2011) . . . . . . . . . . . . . . . . . . . 16
M. Devine, “FBI lost count of how many paid
informants were at Capitol on Jan. 6, and
later performed audit to figure out exact
number: ex-official,” New York Post (Sept.
19, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
“Fact Check: Did Kamala Harris Compare 9/11
to January 6?” Newsweek (Sept. 12, 2023) . . . 16
Final Report of the Select Committee to
Investigate the January 6th Attack on the
United States Capitol . . . . . . . . . . . . . . . . . . . 17
 v

E.D. Hirsch, Validity in Interpretation (Yale

Univ. Press: 1967) . . . . . . . . . . . . . . . . . . . . 8, 20
“In Depositions, Arthur Andersen Staffers
Detail ‘Shred Room’,” AP (March 15, 2002) . . . 9
Interview with Rep. Clay Higgins, “D.C.
Shorts,” Daily Caller (Jan. 8, 2024) . . . . . . . . 18
M. Kunzelman, “Judge assigned to Trump’s
Jan. 6 case is a tough punisher of Capitol
rioters,” Associated Press (Aug. 2, 2023) . . . . . 15
M. Kunzelman and A. Richer, “In Jan. 6 cases,
1 judge stands out as toughest punisher,”
Associated Press (June 12, 2022). . . . . . . . . . . 15
E. Lawrence, “Whistleblower: FBI had
informants, undercover officers in Capitol
on Jan 6, they may be on video,” American
Military News (May 18, 2023) . . . . . . . . . . . . . 17
S. Lekach, “Over 12,000 tweets are calling for
Trump’s assassination,” mashable.com
(Feb. 2, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 23
J. Mason, “Biden warns election deniers pose
threat, blames Trump,” Reuters (Nov. 3,
2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Memorandum from Ass’t Att’y Gen. Office of
Legal Counsel Steven Engel & Principal
Assoc. Deputy Att’y Gen. Edward C.
O’Callaghan to Att’y Gen. William P. Barr
(Mar. 24, 2019) . . . . . . . . . . . . . . . . . . . . . . 12, 13
D. Root, “When the Government Declared War
on the First Amendment,” Reason (Oct.
2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Scalia & B. Garner, Reading Law (West:
2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
 vi

B. Singman, “‘Alarming’ surveillance: Feds

asked banks to search private transactions
for terms like ‘MAGA,’ ‘Trump,’” Fox News
(Jan. 17, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 26
T. Sneed, “US Capitol riot judges step up as the
conscience of democracy while lawmakers
squabble,” CNN (Aug. 13, 2021) . . . . . . . . . . . 15
Sources of Our Liberties (R. Perry & J. Cooper,
eds., rev. ed., ABA Found.: 1978) . . . . . . . . . . 25
P. Sperry, “Lies, Damned Lies, and the Jan. 6
Committee,” Epoch Times (Aug. 8, 2022) . . . . 17
B. Williams, “11 times VP Biden was
interrupted during Trump’s electoral vote
certification,” CNN (Jan. 6, 2017) . . . . . . . . . . 25
 INTEREST OF THE AMICI CURIAE1

America’s Future, Gun Owners of America, Inc.,

Gun Owners Foundation, Gun Owners of California,
Inc., Citizens United, Citizens United Foundation,
Tennessee Firearms Association, U.S. Constitutional
Rights Legal Defense Fund, and Conservative Legal
Defense and Education Fund are nonprofit
organizations, exempt from federal income tax under
either sections 501(c)(3) or 501(c)(4) of the Internal
Revenue Code. These entities, inter alia, participate
in the public policy process, including conducting
research, and informing and educating the public on
the proper construction of state and federal
constitutions, as well as statutes related to the rights
of citizens, and questions related to human and civil
rights secured by law. The Presidential Coalition,
LLC is a political committee. Some of these amici filed
the only amicus brief at the petition stage in this case.

STATEMENT OF THE CASE

On January 6, 2021, a crowd protesting the

manner by which the 2020 presidential election was
conducted assembled at the U.S. Capitol building
where Congress was gathered to certify the electoral
votes cast by each state. For reasons not yet proven,
persons inside the Capitol opened the impenetrable
metal doors of the Capitol to allow protesters inside.

1
It is hereby certified that no counsel for a party authored this
brief in whole or in part; and that no person other than these
amici curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
 2

Petitioner Joseph Fischer was charged criminally

for his participation in the protest. Fischer attended a
rally at the Ellipse earlier on January 6 and then
headed home. After hearing about the events
occurring at the Capitol, he returned to the city and
entered the Capitol and grounds for four minutes.
During those few minutes he returned handcuffs
dropped by one officer, spoke with another officer,
patted a third on the shoulder, was pushed into a
police line by other protestors, was pepper sprayed by
officers, and left. See Petition for Certiorari at 4-5.

Fischer, along with co-defendants Garret Lang and

Edward Miller, was charged with violation of 18
U.S.C. § 1512(c) (a provision in the Sarbanes-Oxley Act
of 2002 amending the statute entitled “Tampering
with a witness, victim, or an informant”).

The district court dismissed the charges against all

three defendants for violating 18 U.S.C. § 1512(c)(2),
since there was no allegation that the defendants had
tampered with documents. United States v. Fischer,
2022 U.S. Dist. LEXIS 45877, *10 (D.D.C. 2022). A
panel of the D.C. Circuit Court reinstated the
indictments, over a strong dissent. See United States
v. Fischer, 64 F.4th 329 (D.C. Cir. 2023).

Fischer’s petition for certiorari was supported by

one amicus brief, which was filed by some of these
amici,2 and granted on December 13, 2023.

2
See Brief Amicus Curiae of America’s Future, et al., U.S.
Supreme Court, No. 23-5572 (Oct. 13, 2021).
 3

STATEMENT

What did Petitioner Joseph Fischer do to justify

being charged with violating 18 U.S.C. § 1512(c)(2)?

On the morning of January 6, Fischer attended a

rally at the Ellipse and then headed home. After
hearing about the events occurring at the Capitol, he
returned to the city and entered the Capitol and
grounds for four minutes. During those few minutes
he returned handcuffs dropped by one officer, spoke
with another officer, patted a third on the shoulder,
was pushed into a police line by other protestors, was
pepper sprayed by officers, and left. See Pet. Br. at 4-
5. The panel opinion adds little to these facts, only
repeating from the criminal complaint that Fischer
“had a ‘physical encounter’ with at least one law
enforcement officer, and participated in pushing the
police.” Fischer at 332. Even if true, based on this
conduct, the government brings a charge that could
lead to Fischer’s incarceration for 20 years.

Why was Petitioner Joseph Fischer charged with

violating 18 U.S.C. § 1512(c)(2)?

President Biden repeatedly describes the events of

January 6 as an insurrection, causing Attorney
General Garland to have led one of the largest and
most complex and resource-intensive investigations in
our history. Yet the Justice Department has charged
not one person with the crime of “insurrection” under
18 U.S.C. § 2383. Most agree that it would be
exceedingly difficult to meet the elements of that
section. By comparison, it is rather easy to show that
 4

the business of Congress in counting electoral college

votes was “impeded” for three hours. Additionally,
insurrection carries a 10-year maximum sentence,
while impeding a proceeding carries a much harsher
20-year maximum sentence. For these reasons, the
ability of prosecutors to rely on § 1512(c)(2) has been
central to the Biden Justice Department’s ability to
charge more than 1,265 Trump supporters, generating
718 guilty pleas, and the incarceration of nearly 500
persons, with more to come. The Biden Justice
Department’s new interpretation of § 1512(c)(2) allows
prosecutors to threaten Trump-supporting defendants
with 20-year imprisonment after a trial in the District
of Columbia, where Donald Trump received 5.4 percent
of the vote in 2020, compared to Joe Biden’s 92.15
percent.

The Department of Justice’s novel interpretation

of § 1512(c)(2) is particularly unpersuasive because it
was developed and is being used to punish severely the
political opponents of the President. The Biden Justice
Department did not use § 1512(c)(2) against the Antifa
rioters who set fire to the Mark Hatfield Federal
Courthouse in Portland, Oregon in March 2021.
Democrat Congressman Jamaal Bowman (D-NY) was
not charged with having “corruptly ... obstruct[ed] ... or
impede[d] [an] official proceeding, or attempt[ed] to do
so” when he pulled a congressional fire alarm in order
to delay House proceedings on September 30, 2023;
rather, he was allowed to plead guilty to a
misdemeanor, pay a $1,000 fine and, and write a letter
of apology.
 5

SUMMARY OF ARGUMENT

In 2002, 18 U.S.C. § 1512(c) was enacted to plug a

loophole that was discovered during the prosecution of
Arthur Andersen for destroying evidence relating to its
client Enron. Before § 1512(c) was added, corporate
document shredding to hide evidence of financial
wrongdoing was unlawful if one person directed
another, but not if he acted alone. As amended, this
section has been relied on by prosecutors to accomplish
this clear purpose for two decades — and then came
January 6, 2021.

The Biden Administration has repeatedly

characterized the January 6 election protest at the
Capitol not just a riot, but as “an insurrection.” The
Justice Department began what is certainly one of its
broadest and intensive investigations in U.S. history.
Surprisingly, the Biden Justice Department chose not
to charge any of the so-called insurrectionists with the
federal crime of insurrection under 18 U.S.C. § 2383.
It had a better idea.

The Biden Justice Department would reinterpret

18 U.S.C. § 1512(c)(2) to use against not only
Petitioner Fischer, but hundreds of other January 6
protestors and President Trump as well. With this
new tool, it not only would avoid the need to
demonstrate the elements of the crime of
“insurrection,” but also would have access to § 1512’s
maximum sentence of 20 years — a far more useful
tool to facilitate plea bargains than the 10-year
sentence for insurrection. By isolating subsection
(c)(2) from subsection (c)(1), and seeking a new
 6

meaning of “official proceeding,” Justice Department

prosecutors were able to re-purpose that statute to
accomplish something Congress never envisioned.

The “insurrection” narrative was being pushed by

the Biden Administration and their allies in the
mainstream media as an existential threat to
democracy. In response, district court judges in the
District of Columbia readily accepted the task of
suppressing the insurrection. The Justice
Department’s new interpretation of § 1512(c)(2) was
readily adopted — until Petitioner Fischer’s challenge.
As Justice Gorsuch warned, “[f]ear and the desire for
safety ... can lead to a clamor for ... almost any action
... to address a perceived threat.” Arizona v. Mayorkas,
143 S. Ct. 1312, 1315 (2023) (statement of Justice
Gorsuch, concurring). When lower courts succumbed
to this instinct, it resulted in what Justice Gorsuch
feared — “the loss of many cherished civil liberties.”
Id.

Lastly, the government’s re-interpretation of

§ 1512(c)(2) sweeps so broadly that it could be used to
criminalize efforts by Americans to exercise their First
Amendment rights to speak, assemble, and petition
the government. The Justice Department’s
investigation has already involved abusive
surveillance of innocent Americans, having the chilling
effect that could be expected. The January 6
prosecutions of even the elderly provide the backdrop
for the Biden Administration’s recent creation of a new
category of extremists identified as President Donald
Trump and his MAGA followers. As additional
information is revealed about the actual events on
 7

January 6, those who have accepted the insurrection

narrative are finding that they have been led astray.

ARGUMENT

I. THE CIRCUIT COURT’S REASONS FOR

APPROVING THE JUSTICE
DEPARTMENT’S NEW INTERPRETATION
OF 18 U.S.C. § 1512(c)(2) TO APPLY TO
JANUARY 6 PROTESTORS ARE
UNPERSUASIVE.

Fischer, along with co-defendants Garret Lang and

Edward Miller, was charged with violation of 18
U.S.C. § 1512(c)(2) (subsection (c) added to that section
by the Sarbanes-Oxley Act of 2002):

(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. [Emphasis added.]

The panel below began by reviewing precedents

which it contended support a “broad reading of § 1512,
applying the statute to all forms of obstructive conduct
that are not covered by subsection (c)(1).” Fischer at
337. The panel then admitted that Appellants are
 8

correct in noting that all these “cases involve ‘evidence

impairment,’” but argues the precedents still support
its position: “[w]hile the cited cases happen to address
behavior that impaired evidence, none of them
suggests that subsection (c)(2) is limited.” Id. at 338.
This argument from silence advanced the panel’s new
interpretation not one inch.

The panel’s interpretation isolated § 1512(c)(2)

from its companion subsection, (c)(1). Only if the term
“otherwise” is viewed in isolation can the government
prevail. However, this is not how any nonfiction texts
are interpreted.3 It most certainly is not how statutes
are analyzed. As Justice Kavanaugh explained:

[T]his Court’s precedents and longstanding

principles of statutory interpretation teach a
clear lesson: Do not simply split statutory
phrases into their component words, look up
each in a dictionary, and then mechanically
put them together again....4

The panel found that the conduct proscribed by the

term “otherwise” in (c)(2) unambiguously included “all
forms of corrupt obstruction.” Id. at 336 (Katsas, J.,
dissenting) (emphasis added). As Judge Katsas
analyzed the panel opinion, “the catchall otherwise
clause alone determines the scope of the provision”

3
See E.D. Hirsch, Validity in Interpretation at viii, 1, 5, 212-13
(Yale Univ. Press: 1967).
4
Bostock v. Clayton County, 140 S. Ct. 1827 (2020) (Kavanaugh,
J., dissenting).
 9

disregarding all indications to the contrary, and thus

reduces (c)(1) and (c)(2) “to a single provision
criminalizing any act that corruptly obstructs an
official proceeding.” Id. Under the panel’s
interpretation, indictments could still be brought
under subsection (c)(1), but it is surplusage, as any
destruction of evidence previously criminalized under
(c)(1) is now subsumed under (c)(2).

The panel also isolated § 1512(c)(2) from the

statute that enacted it. The panel admitted, but then
disregarded, the fact that Congress’ purpose in
Sarbanes-Oxley was to respond to “revelations that the
company’s outside auditor, Arthur Andersen LLP, had
systematically destroyed potentially incriminating
documents.” Id. (emphasis added). Arthur Andersen
operated a “shred room,” using a commercial-grade
shredder from Enron’s headquarters, shredding an
“abnormal volume” of Enron papers sent to Andersen.5
The panel recognized that Congress sought to plug a
loophole in Title 18, as “section 1512(b) made it a
crime to persuade another person to destroy
documents but not a crime for a person to destroy the
same documents personally.” Id. at 347. If Congress
had a broader purpose than addressing the problem of
Arthur Andersen document shredding, surely it would

5
“In Depositions, Arthur Andersen Staffers Detail ‘Shred Room’,”
AP (March 15, 2002). See unsourced report that the shredding
included several tons of paper and 30,000 computer files and
emails, P. Coleman, ENRON: Crooks in Suits (2017).
 10

have made that clear somewhere — not just by

employing the word “otherwise.”6

In a case evaluating the “corruptly persuade”

requirement in § 1512, this Court unanimously found
the government’s reading of the statute criminalized
innocent behavior, explaining principles that apply
here:

We have traditionally exercised restraint in

assessing the reach of a federal criminal
statute, both out of deference to the
prerogatives of Congress ... and out of concern
that “a fair warning should be given to the
world in language that the common world will
understand, of what the law intends to do if a
certain line is passed.” [Arthur Andersen LLP
v. United States, 544 U.S. 696 (2005) (citations
omitted).]

Judge Katsas exposed the incongruity of the

government’s position:

The government posits that Congress plugged

the loophole with a grossly incommensurate
patch. On its view, instead of simply adding a
prohibition on direct evidence impairment to
preexisting prohibitions on indirect evidence
impairment, Congress added a prohibition on

6
“Congress ... does not, one might say, hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001).
 11

obstruction or influencing per se. [Id. at 376

(Katsas, J., dissenting).]

Also, the panel’s discussion of the proposed change

to the title of § 1512 was particularly unpersuasive.
The section’s title both before and after Sarbanes-
Oxley is “Tampering with a witness, victim, or an
informant.” Congress declined to adopt a change to
the title of § 1512 to add the words “or Otherwise
impeding an Official Proceeding.” The panel’s way to
avoid the obvious implications of Congress’ decision
not to change the title was by simply asserting that
the proposed amendment to the title — which was not
adopted — was a better indication of what Congress
intended, than what Congress actually did. See id.
See also, A. Scalia & B. Garner, Reading Law (West:
2012) at 221 (“The title and headings are permissible
indicators of meaning.”).

Revealingly, the panel appeared to admire the

Arthur Andersen prosecutors who it said obtained
their convictions “under the legal fiction that the
defendants are being prosecuted for telling other
people to shred documents, not simply for destroying
documents.” If the panel had no problem with the
Arthur Andersen prosecution being based on a “legal
fiction,” why not approve the prosecution of January 6
protestors on another legal fiction — that Congress
enacted subsection (c)(2) to apply to protests at the
Capitol?

Lastly, the panel had no problem with the Justice

Department breaking new legal ground to reimagine
and reinterpret a long-standing statute to aid the
 12

prosecutors of the January 6 “riot.” As Judge Katsas

explained:

Section 1512(c)(2) has been on the books for

two decades and charged in thousands of cases
— yet until the prosecutions arising from the
January 6 riot, it was uniformly treated as an
evidence-impairment crime. This settled
understanding is a “powerful indication”
against the government’s novel position. [Id.
at 377 (Katsas, J., dissenting).]

Additionally, this new interpretation of § 1512 by

the Justice Department is inconsistent with the
Department’s prior view of this section. A
memorandum from the Office of Legal Counsel (“OLC”)
considered whether obstruction of justice charges
should be brought under § 1512(c)(2) based on the facts
alleged in the March 19, 2019 Report of Special
Counsel Mueller.7 The OLC Opinion described the
statute as applying to “efforts to impair or
intentionally alter evidence (documentary or
testimonial) that would negatively impact the ...
ability to obtain and develop evidence.” Id. at 3. The
OLC Opinion reviewed the Special Counsel’s
“expansive reading” of the statute in taking the
position that “there is no requirement that the act be
inherently malign or impair the availability of
witnesses or evidence,” and concluded, “we do not

7
See, e.g., Memorandum from Ass’t Att’y Gen. Office of Legal
Counsel Steven Engel & Principal Assoc. Deputy Att’y Gen.
Edward C. O’Callaghan to Att’y Gen. William P. Barr at 3-5 (Mar.
24, 2019).
 13

subscribe to such a reading of the obstruction-of-justice

statutes.” Id. at 5. The panel’s opinion made no
mention of this OLC Opinion.

II. THE CIRCUIT COURT’S EMBRACE OF A

FABRICATED JANUARY 6 NARRATIVE
APPARENTLY INSPIRED IT TO SANCTION
A REINTERPRETATION OF SARBANES-
OXLEY.

A. The Court Below Presumed the Truth of

the Government’s “Insurrection”
Narrative about January 6.

The panel opinion below provided anything but a

dispassionate version of the facts and the law for this
Court’s review:

[T]housands of supporters of the losing

candidate, Donald J. Trump, converged on
the United States Capitol to disrupt the
proceedings. The Trump supporters
swarmed the building, overwhelming law
enforcement officers.... The chaos wrought by
the mob forced members of Congress to stop
the certification and flee for safety. [Fischer
at 332 (emphasis added).]

The Court referred to a “riot” or “rioters” six times and

“mob” four times to refer to the protestors, and Fischer
was treated as just another member of that “mob.”
Rather than examining Fischer’s actions individually,
the panel seems to treat Fischer as being culpable for
the actions of everyone in the “mob.” This
 14

prejudgment appears to have led to a series of

arbitrary rulings. For example, the court found
irrelevant the fact that Fischer arrived at the Capitol
after Congress recessed, and therefore that he could
not have caused the suspension of the vote certification
process. See id. at 333, n.1.

The panel’s language suggests that it has assumed

that the protestors were part of an “insurrection.”
However, most Trump supporters were there because
they believed the election had been compromised.
They went to the Capitol to protest (not disrupt), and
they assembled at (not converged at and swarmed) the
Capitol. Trump and his supporters were blamed even
though the riot began while Trump was still speaking
at the Ellipse.8 Never did the court use the words
“protest” or “rally” to describe the events. The court
admitted that “outside the January 6 cases brought in
this jurisdiction, there is no precedent for using
§ 1512(c)(2) to prosecute the type of conduct at issue in
this case,” but adopted that view nevertheless. Id. at
339 (emphasis added).

The panel was not alone. District court judges in

the District of Columbia hearing January 6 cases
almost uniformly have viewed defendants under the
Democrats’ insurrection narrative. Judge Reggie
Walton, sentencing defendant Lori Vinson, stated that
“[d]emocracies die, and we’ve seen it in the past, when
the citizens rise up against their government and
engage in the type of conduct that happened on

8
See “The Capitol Riot: A Chronology,” National Security
Archive.
 15

January 6.”9 Judge Amy Berman Jackson told

defendant Karl Dresch that he was an “enthusiastic
participant” in an attempt “to subvert democracy, to
stop the will of the people and replace it with the will
of the mob.”10 Judge Randolph Moss stated that the
protest “threatened not only the security of the
Capitol, but democracy itself.” Id. Judge Tanya
Chutkan, described as “the toughest punisher” of
January 6 protestors, accused protestors of “trying to
violently overthrow the government.”11 “Chutkan has
often has [sic] handed down prison sentences in Jan. 6,
2021, riot cases that are harsher than Justice
Department prosecutors recommended.”12

If the insurrection narrative inclined the panel to

rule for the government, it would not be the first time
that a court’s judgment was clouded by exigent
circumstances, causing it to reverse 20 years of
prosecutorial and judicial understanding of the
meaning of § 1512(c)(2). The panel appears to have
adopted the narrative advanced by Vice President
Kamala Harris when she equated January 6 with

9
M. Cohen and H. Lybrand, “‘We’re getting all kinds of threats’:
Judge says defiant US Capitol rioters are fueling threats from
Trump supporters,” CNN (Oct. 22, 2021).
10
T. Sneed, “US Capitol riot judges step up as the conscience of
democracy while lawmakers squabble,” CNN (Aug. 13, 2021).
11
M. Kunzelman and A. Richer, “In Jan. 6 cases, 1 judge stands
out as toughest punisher,” Associated Press (June 12, 2022).
12
M. Kunzelman, “Judge assigned to Trump’s Jan. 6 case is a
tough punisher of Capitol rioters,” Associated Press (Aug. 2, 2023).
 16

Pearl Harbor and the attacks on 9-11.13 In times of

crisis, federal courts have been all too willing to yield
to Justice Department demands for new powers.14

B. Much Is Not Known about the Violence

on January 6.

Even if this Court felt it necessary to bend the law

to somehow “save democracy,”15 it would need
information to supplement what the panel knew when
the case was decided on April 7, 2023. Much of what
has been learned since then does not support the
government’s insurrection narrative. Consider just
one of the January 6 narratives which has proven to be
false — the claim that no federal agents were
embedded in the January 6 crowd. The House Select
Committee on January 6 (“J6 Committee”) appointed

13
“Certain dates echo throughout history.... when our democracy
came under assault.... December 7, 1941. September 11, 2011,
and January 6, 2021.” “Fact Check: Did Kamala Harris Compare
9/11 to January 6?” Newsweek (Sept. 12, 2023).
14
Some of those Justice Department demands were later
admitted to have been fraudulent. See, e.g., “Confession of Error:
The Solicitor General’s Mistakes During the Japanese-American
Internment Cases,” U.S. Department of Justice (May 20, 2011)
(“the Solicitor General had learned of a key intelligence report
that undermined the rationale behind the internment ... [b]ut the
Solicitor General did not inform the Court of the report.... Nor did
he inform the Court that a key set of allegations ... had been
discredited ... and relied on gross generalizations about Japanese
Americans.”).
15
J. Cassidy, “Joe Biden Makes Saving Democracy the Center of
His Campaign,” The New Yorker (Jan. 4, 2024).
 17

by Speaker Pelosi advanced falsehoods and hyperbole

in its report which were politically pre-ordained.16 The
J6 Committee summarily “dismissed” claims of FBI
involvement in the January 6 crowd, calling them
“unsupported.”17

Later, an FBI whistleblower revealed that the

bureau’s Washington Field Office refused the Boston
Field Office’s request for footage of the events at the
Capitol, because “there may be undercover officers or
confidential human sources on those videos whose
identity we need to protect.”18 The former director of
the Washington office subsequently admitted that
“[t]he FBI had so many paid informants at the Capitol
on Jan. 6, 2021, that it lost track of the number and

16
See, e.g., P. Sperry, “Lies, Damned Lies, and the Jan. 6
Committee,” Epoch Times (Aug. 8, 2022) (J6 Committee chairman
Rep. Bennie Thompson accused protestors of “‘savagely beating
and killing law enforcement officers’”); S. Arnold, “Jan. 6
Committee Caught ‘Lying and Altering Evidence,’” TownHall.com
(June 12, 2022) (J6 Committee investigation falsified text
messages between Rep. Jim Jordan (R-OH) and Trump chief of
staff Mark Meadows); Final Report of the Select Committee to
Investigate the January 6th Attack on the United States Capitol
at 77, 586 (calling the Capitol protest a “violent uprising” and a
“coup”).
17
M. Alfaro, “House Jan. 6 committee dismisses ‘unsupported’
claim of FBI involvement in riot,” Washington Post (Jan. 11,
2022).
18
E. Lawrence, “Whistleblower: FBI had informants, undercover
officers in Capitol on Jan 6, they may be on video,” American
Military News (May 18, 2023).
 18

had to perform a later audit to determine exactly how

many ... were present.”19

The politicized strategy of Pelosi and the J6

Committee to release only selective excerpts of the
80,000 hours of video taken that day also gave a
slanted view. As more video has been released by
Speakers Kevin McCarthy and Mike Johnson, the
American People have come to realize that they were
lied to. See Tucker Carlson, “This video tells a
different story of Jan 6,” Fox News.

Now that Republican House members have

reviewed the videotape and other evidence of the day’s
events, Rep. Clay Higgins (R-LA) has stated that over
200 persons working for or with federal law
enforcement were embedded among the protestors that
day. “Hard, objective, and conservative estimates
would put the number of FBI assets in the crowd
outside and working inside at well over 200,” Higgins
said.20 Higgins stated that some FBI “assets” served
as “guides” once protestors came inside the Capitol, to
assist them in reaching sensitive areas where
trespassing would be more easily proven to be criminal
and serious. Id. at 3:30-4:35.

19
M. Devine, “FBI lost count of how many paid informants were
at Capitol on Jan. 6, and later performed audit to figure out exact
number: ex-official,” New York Post (Sept. 19, 2022).
20
Interview with Rep. Clay Higgins, “D.C. Shorts” at 5:08, Daily
Caller (Jan. 8, 2024).
 19

C. Not Allowing “Fear and the Desire for

Safety” to Drive a Decision.

Before a decision is reached based on the

insurrection narrative, there is the need to reconsider
assumptions made by the panel below. The January
6 events are now three years in the past. Although the
courts below are still caught up in the “insurrection”
hysteria, the nation cannot afford for this Court to
succumb to the same temptation. As Justice Gorsuch
has wisely warned:

Fear and the desire for safety are powerful

forces. They can lead to a clamor for action —
almost any action — as long as someone does
something to address a perceived threat.... We
do not need to confront a bayonet, we need
only a nudge, before we willingly abandon the
nicety of requiring laws to be adopted by our
legislative representatives and accept rule by
decree. Along the way, we will accede to the
loss of many cherished civil liberties. [Arizona
v. Mayorkas, 143 S. Ct. 1312, 1315 (2023)
(statement of Justice Gorsuch, concurring).]

“In some cases, like this one,” Justice Gorsuch

cautioned, “courts even allowed themselves to be used
to perpetuate ... decrees for collateral purposes, itself
a form of emergency-lawmaking-by-litigation.” The
circuit court’s creation of novel criminal applications of
Sarbnes-Oxley is just the sort of
“emergency-lawmaking-by-litigation” of which Justice
Gorsuch warned.
 20

In another case, where the government had

violated civil rights in the midst of the COVID-19
panic, Justice Gorsuch warned that “[g]overnment is
not free to disregard the First Amendment in times of
crisis.” Roman Catholic Diocese v. Cuomo, 141 S. Ct.
63, 70 (2020) (Gorsuch, J., concurring). Likewise here,
courts are not free to create new criminal laws or novel
applications of criminal laws to address what
increasingly appears to have been largely a fabricated
crisis. As it did in Roman Catholic Diocese, this Court
should resist the rushed impulses that have affected
lower courts, and simply interpret the text and history
of the Sarbanes-Oxley amendment to the criminal code
according to what Professor E.D. Hirsh calls a search
for “authorial intent.”21

III. AS NEWLY INTERPRETED BY THE BIDEN

ADMINISTRATION, SECTION 1512(c)(2)
CRIMINALIZES ACTIVITIES PROTECTED
BY THE FIRST AMENDMENT.

Petitioner’s opening brief presents many

compelling reasons as to why § 1512(c)(2) should not
be read expansively to cover Petitioner’s conduct. In
its last section, it invokes the canon of constitutional
avoidance. Petitioner asserts that, “without a
limitation on its reach, [that statute] is both

21
University of Virginia Professor Emeritus of education and
humanities, E.D. Hirsch, Jr., has observed that “[i]n law ... a so-
called pragmatism prevails which holds that the meaning of a law
is what present judges say the meaning is.” This view constitutes
“an assault on the sensible belief that a text means what the
author meant.” E.D. Hirsch at viii, 1.
 21

breathtaking in its scope and unconstitutional in many

applications.” Pet. Br. at 31. There is no question
that, if the government’s expansive interpretation of
§ 1512(c)(2) were adopted, it would apply not only to
Petitioner and several hundred of the over 1,000 and
counting January 6 defendants who have been
arrested, including President Trump.22 It could also
potentially apply to millions of American citizens who,
at least until the Department of Justice devised its
novel interpretation of Sarbanes-Oxley, had thought
that they had the right to question the integrity of
elections, and to assemble at the seat of the national
government to petition Congress for redress of
grievances.

Judge Katsas’ dissent identified the constitutional

problem created by the government’s aggressive
interpretation of § 1512:

advocacy, lobbying, and protest before the

political branches is political speech that the
First Amendment squarely protects.... Thus,
“to assert that all endeavors to influence,
obstruct, or impede the proceedings of
congressional committees are, as a matter of
law, corrupt would undoubtedly criminalize
some innocent behavior.” [Fischer at 378
(Katsas, J., dissenting) (emphasis added).]

The Justice Department appears wholly

unconcerned that its position operates to insulate

22
See “Capitol Breach Cases,” U.S. Department of Justice.
 22

Congress from public input. It protects the People’s

House from hearing the voice of the People. The fact
that persons such as Fischer are being prosecuted,
despite the fact that he did nothing violent on January
6, sends a message — a message that the Biden
Administration may want to send — that the
government is not to be resisted. There have even
been reports from the mainstream media that “[t]he
federal government believes that the threat of violence
and major civil disturbances around the 2024 U.S.
presidential election is so great that it has quietly
created a new category of extremists that it seeks to
track and counter: Donald Trump’s army of MAGA
followers.”23 This message quite obviously adds to the
chill on the exercise of First Amendment rights.

A. Freedom of Speech.

The panel’s approval of the Biden Justice

Department’s new interpretation of § 1512(c)(2) has
allowed federal prosecutors to target those who came
to the District of Columbia simply to protest the
integrity of the 2020 election — even without engaging
in violence or entering the Capitol. The panel below
quoted several of Fischer’s private text messages
sent before January 6, as if he was being indicted, at
least in part, for his intemperate texts.24 Fischer at

23
W. Arkin, “Donald Trump Followers Targeted by FBI as 2024
Election Nears,” Newsweek (Oct. 4, 2023).
24
“Biden said ‘American democracy is under attack’ because
Trump will not accept the results of the 2020 election.” J. Mason,
“Biden warns election deniers pose threat, blames Trump,”
 23

332. By contrast, there were 12,000 public Tweets

sent during the Trump presidency using the phrase
“assassinate Trump,” but the Justice Department did
not appear to have seriously focused on many of
those.25

Harsh criticism of government is protected speech.

As Justice Douglas put it, “Since when have we
Americans been expected to bow submissively to
authority and speak with awe and reverence to those
who represent us? The constitutional theory is that we
the people are the sovereigns, the state and federal
officials only our agents. We who have the final word
can speak softly or angrily. We can seek to
challenge and annoy....” Colten v. Ky., 407 U.S. 104,
122 (1972) (Douglas, J., dissenting) (emphasis added).
Contentious speech is not a problem, this Court has
explained:

a function of free speech under our system of

government is to invite dispute. It may indeed
best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction

Reuters (Nov. 3, 2022). If election deniers are a threat to

democracy, should the First Amendment be violated to stop the
threat? At least prosecutors in the Wilson Administration had
clear congressional authority when they invoked the Sedition Act
of 1917, to end anti-war speech. The Sedition Act authorized the
same 20-year sentences as section 1512. See D. Root, “When the
Government Declared War on the First Amendment,” Reason
(Oct. 2017).
25
See S. Lekach, “Over 12,000 tweets are calling for Trump’s
assassination,” mashable.com (Feb. 2, 2017).
 24

with conditions as they are, or even stirs

people to anger.... There is no room under our
Constitution for a more restrictive view.
[Terminiello v. Chicago, 337 U.S. 1, 4 (1949)
(emphasis added).]

One need not speculate as to whether the Justice

Department’s new interpretation of § 1512(c)(2) could
be used to chill the speech of its political opponents, for
this is exactly how it is being used in pending cases.
Two of the charges in the indictment brought against
President Trump relate to § 1512(c)(2) — one for its
violation, and one for conspiracy to violate it. See
United States v. Trump, Indictment at 43-44 (Aug. 1,
2023) (D.C. Dist. Ct. No. 23-cv-257). The indictment
claims the crimes occurred “on or about November 14,
2020, through on or about January 7, 2021....” Id.
What conduct could such an indictment be based upon?
There is no allegation that President Trump himself
was present at the Capitol on January 6 or that he
undertook to physically prevent Congress from going
forward with its proceedings on that day. The Special
Counsel’s indictment relies on President Trump’s
phone calls, speeches, and tweets to demonstrate
wrongdoing. Indeed, President Trump has been
charged with committing and inspiring political
speech — seeking to support the presentation of
evidence concerning election irregularities before the
joint session of Congress.26

26
Had the Department of Justice’s new interpretation of § 1512
been in effect during the certification of the 2016 election, the
proverbial shoe would have been on the other foot. Would the
Department of Justice have charged those in the Clinton
 25

B. Freedoms of Assembly and Petition.

If there is one place in the country where

Americans have a constitutional right to assemble to
petition their government for the redress of grievances,
it should be the United States Capitol. These
constitutional liberties have a rich tradition, and
efforts to restrict either activity have been viewed as
unAmerican, at best.

One member of the House of Representatives’ first

Congress, James Madison, introduced a bill of rights
which included a provision that read: “The people
shall not be restrained from peaceably assembling and
consulting for their common good.” See Sources of Our
Liberties at 422 (R. Perry & J. Cooper, eds., rev. ed.,
ABA Found.: 1978). After a series of amendments and
votes, the provision was modified to its present form,
reading “the right of the people peaceably to
assemble,” without tying the right to any particular
purpose.

campaign who refused to concede defeat, promoting the totally

discredited “conspiracy theory” that Russia had influenced our
election, arguments which were used to interrupt the January 6,
2017 vote certification? How would the Justice Department have
viewed protestors — or even members of the House of
Representatives who improperly raised objections that were not
also endorsed by a Senator, or that were based on false
allegations of Russian interference with the 2016 elections?
Could they have been deemed criminal acts to impede a “official
proceeding”? See B. Williams, “11 times VP Biden was
interrupted during Trump’s electoral vote certification,” CNN
(Jan. 6, 2017).
 26

The government has announced that its

investigation is not limited to those who committed
acts of violence. As part of its investigation, the
Justice Department surreptitiously obtained the
names of persons who flew into the District of
Columbia around January 6, or stayed at a hotel, or
used their credit cards in the metro area.27 Even apart
from threatened prosecutions, the very notion that
federal prosecutors are compiling such lists is chilling
in and of itself. Federal prosecutors have announced
that their search for more defendants continues, and
is not limited to persons who went into the Capitol on
January 6.28 The search, however, does appear to be
limited to Trump supporters.

This Court has rightly recognized that “[t]he right

of peaceable assembly is a right cognate to those of
free speech and free press and is equally
fundamental ... [and] cannot be denied without
violating those fundamental principles of liberty and
justice which lie at the base of all civil and political
institutions.” DeJonge v. Oregon, 299 U.S. 353, 364
(1937) (emphasis added). And, in 1876, this Court
recognized:

27
See B. Singman, “‘Alarming’ surveillance: Feds asked banks to
search private transactions for terms like ‘MAGA,’ ‘Trump,’” Fox
News (Jan. 17, 2024).
28
See S. Arnold, “U.S. Attorney Suggests DOJ Will Target
Americans Who Stood Outside the Capitol on Jan 6,” Townhall
(Jan. 7, 2024).
 27

The right of the people peaceably to assemble

for the purpose of petitioning Congress for a
redress of grievances ... is an attribute of
national citizenship, and, as such, under the
protection of, and guaranteed by, the United
States. [United States v. Cruikshank, 92 U.S.
542, 552 (1876).]

At the heart of the right to assemble is the right of

the people to self-government. The role of the
government is to keep the physical peace, not to
conduct or “curtail” assemblies, support or discourage
appeals, or other communicative activities among the
citizenry. Again, the DeJonge Court got it right: the
government’s constitutionally required role is to foster,
not to proscribe, “peaceable political action.” DeJonge
at 365. To be sure, the government has authority to
“deal[] with the abuse” of the “free speech, free press,
and free assembly” rights, but it must preserve them
“inviolate”:

in order to maintain the opportunity for free

political discussion, to the end that
government may be responsive to the will of
the people and that changes, if desired, may be
obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of
constitutional government. [Id. at 365.]

Quoting from Cruikshank decided sixty-two years

before, the DeJonge Court affirmed that “‘[t]he very
idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for
 28

consultation in respect to public affairs and to petition

for redress of grievances.’” Id.

Having acknowledged this foundation, the DeJonge

Court held that “peaceable assembly for lawful
discussion cannot be made a crime.” Id. Further, the
Court ruled that “[t]hose who assist in the conduct of
such meetings cannot be branded as criminals on that
score.” Id. (emphasis added). Finally, the Court
concluded that:

The question, if the rights of free speech and

peaceable assembly are to be preserved, is not
as to the auspices under which the meeting
is held but as to its purpose; not as to the
relations of the speakers, but whether their
utterances transcend the bounds of
freedom of speech which the Constitution
protects. [Id. (emphasis added).]

To be sure, some of the persons in the January 6

crowd were not peaceable, and acts of violence are
prosecutable. But that does not justify the dragnet
investigative sweep of all those attending the protest,
nor basing indictments on new and novel
interpretations of laws. Moreover, it is becoming
clearer and clearer that Trump supporters may have
had help in causing the disturbance. Video
demonstrates that persons inside the Capitol opened
the heavy and impenetrable doors to that building. It
shows that some uniformed law enforcement opened
interior doors and escorted and guided protestors
through the Capitol. Congressman Clay Higgins
estimates that there were more than 200 law
 29

enforcement personnel embedded into the crowd. See

Tucker Carlson Interview of Cong. Clay Higgins (Jan.
8, 2024). When the details of an event are hidden or
unknown, it is legitimate to ask: Cui bono?

Judge Katsas’ view that the government’s position

“that all endeavors to influence, obstruct, or
impede the proceedings of congressional committees
are, as a matter of law, corrupt would undoubtedly
criminalize some innocent behavior.” Indeed, it would
criminalize constitutionally protected behavior. The
Biden Administration’s misuse of a criminal statute to
indict election protestors constitutes a clear effort to
chill the speech, assembly, and petition rights of his
political opponents, and should be brought to an end.

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed.

Respectfully submitted,

PATRICK M. MCSWEENEY WILLIAM J. OLSON*

3358 John Tree Hill Rd. JEREMIAH L. MORGAN
Powhatan, VA 23139 ROBERT J. OLSON
WILLIAM J. OLSON, P.C.
JAMES N. CLYMER 370 Maple Ave. W., Ste. 4
CLYMER MUSSER & Vienna, VA 22180
SARNO, P.C. (703) 356-5070
408 West Chestnut St. [email protected]
Lancaster, PA 17603
Attorneys for Amici Curiae
*Counsel of Record
 30

J. MARK BREWER MICHAEL BOOS

800 Bering Dr. DANIEL H. JORJANI
Ste. 201A CITIZENS UNITED
Houston, TX 77057 1006 Pennsylvania Ave. S.E.
Washington, DC 20003
JOHN I. HARRIS III
SCHULMAN, LEROY &
BENNETT, P.C.
3310 West End Ave.
Ste. 460
Nashville, TN 37203 February 5, 2024