As I write this, the Supreme Court is hearing arguments in Fischer v. United States, a singularly important case that will affect the fates of hundreds of J6 defendants and, if decided correctly, will severely curtail federal prosecutorial overreach. However, the Supreme Court’s rules and a Sesame Street analysis say that the DOJ cannot get away with lumping Free Speech into the same felony class as destroying evidence or threatening witnesses.

The issue is how to interpret 18 U.S.C. § 1512(c)(2). Anyone who graduated from law school before the year 2000 (after that date, all law school graduates are presumptively ideologically corrupt) knows that the DOJ has perverted the statute’s meaning, which is manifestly intended only to address the willful destruction of evidence. It remains to be seen how ideologically corrupt the Supreme Court is (or isn’t).

The statute at issue is entitled “Tampering with a witness, victim, or an informant.” That’s a pretty telling clue about its purpose. However, the DOJ has used the phrase “official proceeding” in subsection (c)(2) to create a felony against anyone who was even near Congress on January 6 to speak out against the vote to install Biden as president.

I’m going to reprint here almost the entire statute so that you can see its focus on evidence. I’ll highlight the cherry-picked language the DOJ has relied upon to persecute J6 defendants:

(a)

(1) Whoever kills or attempts to kill another person, with intent to—

(A) prevent the attendance or testimony of any person in an official proceeding;

(B) prevent the production of a record, document, or other object, in an official proceeding; or

(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;

[snip]

(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to—

(A) influence, delay, or prevent the testimony of any person in an official proceeding;

(B) cause or induce any person to—

(i) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding;

(iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(iv) be absent from an official proceeding to which that person has been summoned by legal process; or

(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings;

[snip]

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,,[1] parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

(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.

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—

(1) attending or testifying in an official proceeding;

(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;

(3) arresting or seeking the arrest of another person in connection with a Federal offense; or

(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;

It doesn’t take a genius to understand that the entire statute is about preserving the integrity of trials or other judicial-style proceedings. Any lawyer or judge with a smidgen of knowledge and integrity would know that exercising First Amendment rights at Congress does not fall into the same category.

And speaking of categories, a basic statutory construction controls this outcome. Indeed, it’s so basic that it’s No. 16 in the Supreme Court’s own Rules of Statutory Construction and Interpretation.

The rule is called ejusdem generis (i.e., of the same class or nature). Ejusdem generis holds that when a statute has a very specific list of words, any general words that follow it must be interpreted within the parameter of those specific words. For example, if a statute says, “This rule applies to cows, pigs, goats, chickens, and other animals,” the phrase “other animals” must be understood in the context of barnyard animals. A lion is not an “other” animal.

In the same way, when it comes to § 1512(c)(2), to the extent it falls within a statute that is manifestly dedicated to preventing destroying evidence or intimidating witnesses in connection with any type of judicial or quasi-judicial proceeding, all prohibited acts must fall within those parameters. Protesting a vote in the Senate is not the same.

Heck, the two types of activities are so different that you could just sing that old Sesame Street song, “One of These Things (Is Not Like the Others).” DOJ lawyers are smarter than preschoolers. They know the difference. They’re just hoping the Supreme Court doesn’t know.

Thankfully, judging by the oral argument in Fischer v. United States as of now, it appears that the judges, even the leftist ones, pass the Sesame Street test.

Collage made using a photograph by TapTheForwardAssist. CC BY-SA 4.0.