Will the Supreme Court spring the J6ers?
This question may be moot by the time this column is posted. It appears likely that the Supreme Court will rule on Fischer v. United States before the week is out, but the question needs airing in any case.
At issue is "whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence."
"Spring" is not exactly the right word, but should SCOTUS rule that the Appeals Court did err, some 330 J6ers will have a huge burden lifted off their shoulders.
The law under which these protesters were charged was passed in the wake of the Enron scandal 20-some years ago. It was drafted to prevent the destruction of relevant documents.
The point former Pennsylvania police officer Joseph Fischer and his attorneys have made, if not in so many words, is that the Biden Justice Department contorted the law to punish its political enemies.
These enemies include President Donald Trump first and foremost. A favorable ruling by the Supreme Court could drive a tank-size hole in the two cases special counsel Jack Smith has brought against Trump.
Given the political ramifications of the ruling, my guess is that SCOTUS will wait until Friday to announce its decision. Just a guess.
No matter how the Court rules there is no denying the perversely unequal treatment doled out to the January 6 protesters, a charge the media embarrass themselves by denying.
On July 30, 2021, for instance, the Associated Press ran an article headlined, "Records Rebut Claims of Unequal Treatment of Jan. 6 Rioters." Readers were apparently not expected to get beyond the headline. Yes, "dozens" of Floyd rioters were convicted and sent to prison, but their crimes dwarfed those of the J6ers.
A DOJ report from Sept. 24, 2020, set a baseline for federal offenses. As of that date, some 80 Floyd rioters had been charged "with offenses relating to arson and explosives."
No J6er was charged with either offense. The J6ers, at their worst, broke windows. They set no fires, overturned no cars, toppled no monuments, sprayed no graffiti.
Fifteen Floyd rioters were charged with damaging federal property, but that damage included the $2 million in hard costs resulting from the months-long siege on the federal courthouse in downtown Portland.
Not to be outdone, the mostly peaceful protesters in Minneapolis destroyed the Third Precinct police station, totaled it.
A New York Times editorial by Sen. Tom Cotton caused a rebellion in the newsroom simply by documenting the outrages of the Floyd rioters. Wrote Cotton:
"In New York State, rioters ran over officers with cars on at least three occasions. In Las Vegas, an officer is in 'grave' condition after being shot in the head by a rioter. In St. Louis, four police officers were shot as they attempted to disperse a mob throwing bricks and dumping gasoline; in a separate incident, a 77-year-old retired police captain was shot to death as he tried to stop looters from ransacking a pawnshop."
Despite the rampant violence, state and local authorities were even more lenient than the feds. A record review by U.K.'s left-leaning Guardian found that the "vast majority" of charges were "dropped, dismissed, or otherwise not filed."
In Dallas and Philadelphia, more than 95% of citations were dropped, in Houston 93%, in San Francisco 100%. Even for felonies like looting and assault, local authorities dropped the majority of charges.
A more relevant point of comparison for "obstruction" charges would be the organized protest at the Bret Kavanaugh confirmation hearings in 2018.
In the Senate gallery, screaming women repeatedly interrupted this "official proceeding." More than once, Vice President Pence had to stop the vote and call for order. Fourteen protesters were arrested. Others were arrested for blocking hallways and Senate offices.
Two days earlier, nearly 300 protesters were arrested at a US Senate building for unlawfully demonstrating. As NPR reported, "Most of those charged this week with disorderly conduct, crowding or obstructing paid fines of $35 or $50."
Many of those arrested for their "crimes" on January 6 were less disruptive and more respectful of their surroundings than the Kavanaugh protesters, but they got "years," not fines.
The Supreme Court can undo some of the damage, but the Court cannot restore lost jobs, broken marriages, estranged families and busted bank accounts. Not can it resurrect those tormented souls who have taken their lives.
Jack Cashill's new book, "Ashli: The Untold Story of the Women of January 6," is now available in all formats.
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