Amicus Curiae Brief — Joseph W. Fischer, Petitioner v. United States
Supreme Court briefFeb 5, 2024
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No. 23-5572
IN THE
Supreme Court of the United States
JOSEPH W. FISCHER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the D.C. Circuit
AMICUS CURIAE BRIEF OF LIBERTY
COUNSEL ACTION, INC. IN SUPPORT OF
PETITIONER
Mathew D. Staver
Counsel of Record
Anita L. Staver
LIBERTY COUNSEL
109 Second St., NE
Washington, D.C. 20002
(202) 289-1776
court@LC.org
Horatio G. Mihet
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776
court@LC.org
Counsel for Amicus
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
TABLE OF CONTENTS
TABLE OF CONTENTS…………………………………i
TABLE OF AUTHORITIES…………………………...iii
INTEREST OF AMICUS CURIAE……………………1
INTRODUCTION………………………………………..2
SUMMARY OF THE ARGUMENT……………………7
ARGUMENT……………………………………………...9
I. THE
CIRCUIT
COURT’S
UNPRECEDENTED APPLICATION OF
SECTION
1512(c)
TO
EXPRESSIVE
ACTIVITIES RUNS ROUGHSHOD OVER
THE FIRST AMENDMENT………………………..9
A. Criminal Statutes Touching Core First
Amendment Activities Must Be
Scrutinized With Particular Care…………...…9
B. Section 1512(c), As Construed By The
Circuit Court, Does Not Provide Sufficient
Notice That Its Scope Extends To First
Amendment Activities…………….……………12
C. The Circuit Court’s Application Of Section
1512(c) To First Amendment Activities
Would Criminalize Assembly, Petition,
And Speech Rights……………………………...16
ii
D. This Court’s First Amendment Precedent
Would Be Unrecognizable In A World
Where Section 1512(c) Operates As The
Circuit Court Allowed In The Instant
Case……………………………………………….20
II. THE
CIRCUIT
COURT’S
INTERPRETATION AND APPLICATION
OF
SECTION
1512(c)
IS
UNCONSTITUTIONALLY VAGUE AND
OVERBROAD……………………………………….25
A. The Circuit Court’s Extension Of Section
1512(c) To First Amendment Activities
Leaves Men Of Ordinary Intelligence
Guessing At Its Meaning And Differing As
To Its Application…………………………….…25
B. The Government’s Selective Application
Of Section 1512(c) Proves It Is Vague And
Runs Afoul Of Vital Constitutional
Guarantees…………………………………..…..30
CONCLUSION………………………………………….35
iii
TABLE OF AUTHORITIES
CASES
American Communist Ass’n, C.I.O. v. Douds,
339 U.S. 382 (1950)…………………………………..6, 12
Arthur Andersen LLP v. United States,
544 U.S. 696 (2005)………………………………………3
Baggett v. Bullitt,
377 U.S. 360 (1964)……………………………………..30
Bittner v. United States,
598 U.S. 85 (2023)………………………………………13
Broadrick v. Oklahoma,
413 U.S. 601 (1973)……………………………………..26
Butler v. Michigan,
352 U.S. 380 (1957)……………………………………..12
City of Houston v. Hill,
482 U.S. 451 (1987)……………………………………..10
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988)……………………………………..29
Cohen v. California,
403 U.S. 15 (1971)………………………………………24
Commissioner v. Acker,
361 U.S. 87 (1959)………………………………………13
iv
Connally v. Gen. Const. Co.,
269 U.S. 385 (1926)……………………………………..25
Cox v. Louisiana,
379 U.S. 536 (1965)…………………………………20, 21
De Jonge v. Oregon,
299 U.S. 353 (1937)…………………………………..7, 18
Dombrowski v. Pfister,
380 U.S. 479 (1965)…………………………………28, 29
Dowling v. United States,
473 U.S. 207 (1985)…………………………………11, 13
Edwards v. South Carolina,
372 U.S. 229 (1963)……………………….…7, 22, 23, 26
Grayned v. City of Rockford,
408 U.S. 104 (1972)……………………………………..25
Hartness v. Bush,
919 F.2d 170 (D.C. Cir. 1990)…………………………...7
Home Bldg. & Loan Ass’n v. Blaisdell,
290 U.S. 398 (1934)………………………………………7
Keyishian v. Bd. of Regents of Univ. of N.Y.,
385 U.S. 589 (1967)……………………………………..29
Kinsella v. Krueger,
351 U.S. 470 (1956)……………………………………..34
v
Lawson v. FMR LLC,
571 U.S. 429 (2002)……………………………………3, 4
McBoyle v. United States,
283 U.S. 25 (1931)………………………………………16
McDonnell v. United States,
579 U.S. 550 (2016)……………………………………..11
NAACP v. Button,
371 U.S. 415 (1963)…………………………………25, 29
Republican Party of Minn. v. White,
536 U.S. 765 (2002)……………………………………..35
Shelton v. Tucker,
364 U.S. 479 (1960)………………………………………9
Snyder v. Phelps,
562 U.S. 443 (2011)……………………………………..18
Stromberg v. California,
283 U.S. 359 (1931)……………………………………..26
Terminiello v. City of Chicago,
337 U.S. 1 (1949)……………………………………17, 18
Texas v. Johnson,
491 U.S. 397 (1989)……………………………………..19
Tobey v. Jones,
706 F.3d 379 (4th Cir. 2013)…………………………….6
vi
United States v. Barry, No. 18-cv-00111 (RMM),
2019 WL 2396266 (D.D.C. June 5, 2019)………..32, 33
United States v. Bass,
404 U.S. 336 (1971)…………………………………12, 13
United States v. Bell,
464 F.2d 667 (2d Cir. 1972)……………………………..7
United States v. Dubin,
27 F.4th 1021 (5th Cir. 2022)………………………….16
United States v. Fischer,
64 F.4th 329 (D.C. Cir. 2023)…5,14, 16, 17, 19, 20, 22,
23, 27, 28, 29, 30, 31, 33, 35
United States v. Garcia, No. 21-0129 (ABJ),
2022 WL 2904352 (D.D.C. July 22, 2022)……………..6
United States v. North,
910 F.2d 843 (D.C. Cir. 1990)………………………5, 20
United States v. Reese,
92 U.S. (2 Otto) 214 (1876)…………………………….10
United States v. Robinson,
86 F.4th 355 (D.C. Cir. 2023)………………………….13
United States v. Stevens,
559 U.S. 460 (2010)……………………………………..11
United States v. Sun-Diamond Growers of Cal.,
526 U.S. 398 (1999)……………………………………..11
vii
US Trust v. U.S. Trust Co. of N.Y.,
210 F. Supp. 2d 9 (D. Mass. 2002)……………………...2
United States v. Universal C.I.T. Credit Corp.,
344 U.S. 218 (1952)……………………………………..12
Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982)……………………..26
Watson v. City of Memphis,
373 U.S. 526 (1963)……………………………………..21
Yates v. United States,
574 U.S. 528 (2015)…………………………………3, 4, 5
CONSTITUTIONAL PROVISIONS AND
STATUTES
Supreme Court Rule 37.6…………………………...…..1
U.S. Const., amend. I…..…..1, 2, 3, 5, 6, 7, 8, 9, 11, 12,
13, 16, 17, 19, 20, 21, 23, 24,
25, 26, 28, 29, 30, 35
18 U.S.C. §1507 ………………………………………...14
18 U.S.C. §1512…………..1, 4, 5, 7, 8, 9, 10, 12, 13, 14,
16, 17, 19, 20, 21, 22, 23, 24, 25,
26, 27, 28, 29, 30, 31, 32, 33, 34, 35
18 U.S.C. §1752………………………..……………..…15
18 U.S.C. §1913…………………………………………14
viii
40 U.S.C. §5104……………………………………..14, 32
OTHER AUTHORITIES
Charles Dickens, A Tale of Two Cities 1 (Oxford Univ.
Press, 1953 ed. (1859))..………………………………...2
Elisabeth Bumiller, Corporate Conduct: The
President; Bush signs Bill Aimed at Fraud in
Corporations, N.Y. Times (July 31, 2002),
http://www.nytimes.com/2002/07/31/business/corpor
ate-conduct-the-president-bush-signs-bill-aimed-atfraud-in-corporations.html.........................................4
Emily Jacobs, Israel war: Code Pink occupies Senate
Democrat offices demanding Gaza ceasefire
(November
3,
2023),
https://www.washingtonexaminer.com/news/243375
3/israel-war-code-pink-occupies-senate-democratoffices-demanding-gaza-ceasefire/...........................34
Jillian Smith, Hundreds arrested after ProPalestinian demonstrators flood Cannon Rotunda,
Capital Complex, FOX 5 DC (Oct. 18 2023),
https://www.fox5dc.com/news/propalestinianprotest-underway-at-capitol-rotundauscp-detains-some demonstrators-israel-hamas-warcapitol-hill-jewish-voices-for-peace..........................33
Portland Riots Read Out: July 21, U.S. Department
of
Homeland
Security
(Jul.
21,
2020),
https://www.dhs.gov/news/
2020/07/21/portlandriots-read-out-july-21………………………………….31
ix
Rachel Schilke, Capitol Police arrest more than 40
pro-ceasefire protestors inside Senate office building,
Washington Examiner (December 11, 2023),
https://www.washingtonexaminer.com/news/senate/
2449305/capitol-police-arrest-more-than-40-proceasefire-protesters-inside-senate-officebuilding/....................................................................34
Tucker Carlson, The truth of what happened on Jan. 6 is
still unknown, Fox News (June 9, 2022),
https://www.foxnews.com/opinion/tucker-truth-happenedjan-6-unknown.....................................................................6
1
INTEREST OF AMICUS CURIAE
Amicus curiae, Liberty Counsel Action (“LCA”),1 is
a public policy education, training, and advocacy
organization with offices in Florida and Washington
D.C. Founded in 1986, LCA’s focus is the
advancement of religious freedom, the sanctity of
human life, the family, responsible government,
national security, and support for Israel at the
federal, state, and local levels.
Amicus provides education and policy positions
and papers for federal, state, and local lawmakers and
government bodies. Amicus supports the right of
people to peacefully assemble to exercise their rights
under the First Amendment. Amicus is concerned
about the unprecedented and unconstitutional
interpretation, application, and enforcement of 18
U.S.C. §1512(c) to constitutionally protected
expression. As a zealous advocate for the First
Amendment, Amicus appeals to this Court to limit the
unconstitutionally overbroad application of federal
criminal statutes to prevent the chill of
constitutionally protected expression of those who
wish to assemble, speak, and petition to have their
voices heard and who otherwise attempt to influence
legislation and policy.
1 Pursuant to Supreme Court Rule 37.6, Amicus Curiae states
that no counsel for any party authored this brief in whole or in
part and that no entity or person, aside from Amicus Curiae and
its counsel, made any monetary contribution toward the
preparation or submission of this brief.
2
INTRODUCTION
As Charles Dickens famously penned,
It was the best of times, it was the worst of
times, it was the age of wisdom, it was the
age of foolishness, it was the epoch of
belief, it was the epoch of incredulity, it
was the season of Light, it was the season
of Darkness, it was the spring of hope, it
was the winter of despair, we had
everything before us, we had nothing
before us we were all going direct to
Heaven, we were all going direct the other
way—in short, the period was so far like
the present period, that some of its noisiest
authorities insisted on its being received,
for good or for evil, in the superlative
degree of comparison only.
Charles Dickens, A Tale of Two Cities 1 (Oxford Univ.
Press, 1953 ed. (1859)).
“Well taught English students know that the lines
quoted above refer, literally, to Paris and London in
1775.” US Trust v. U.S. Trust Co. of N.Y., 210 F.
Supp. 2d 9, 12 (D. Mass. 2002). “Figuratively, they
serve to set the tone for the ensuing tale” of a federal
statute enacted to prevent the fraudulent destruction
of corporate financial records being deployed—nearly
a quarter century later—to indict and imprison
individuals for peacefully exercising their First
3
Amendment rights to speak, assemble, and petition
the government. Id.2
Enron Corporation, an energy conglomerate,
began experiencing financial trouble in 2000, which
became much worse by 2001. On August 14, 2001,
Enron’s Chief Executive Officer unexpectedly
resigned, and a “senior accountant at Enron warned
Kenneth Lay, Enron’s newly appointed CEO, that
Enron could implode in a wave of accounting
scandals” very soon. Arthur Andersen LLP v. United
States, 544 U.S. 696, 699 (2005) (cleaned up). That
foretold implosion is precisely what followed. With
Securities and Exchange Commission investigations
announced and commenced, Enron began a process
“of substantial destruction of paper and electronic
documents.” Id. at 701. Despite being warned by
accountants that “this wouldn’t be the best time in the
world for you guys to be shredding a bunch of stuff,”
one of the lead executives at Enron “picked up a
document with the words ‘smoking gun’ written on it
and began to destroy it, adding ‘we don’t need this.’”
Id. at 702 n.6. And, worse still, Enron was not alone
in its cover-up of securities fraud. Its “outside auditor,
Arthur Andersen LLP, had systematically destroyed
potentially incriminating documents.” Yates v. United
States, 574 U.S. 528, 536 (2015); see also Lawson v.
2 Amicus does not intend to suggest that all individuals present
at the United States Capitol on January 6 were peaceful, or that
there were not individuals who otherwise committed crimes. But
that is beside the point of the instant matter. As discussed infra,
the Circuit Court’s application of Section 1512(c) is so
untethered to the text that it can be, and has been, applied to
peaceful assembly and expression, which creates the
constitutional infirmity in need of this Court’s redress.
4
FMR LLC, 571 U.S. 429, 434 (2002) (“contractors and
subcontractors, including the accounting firm, Arthur
Andersen, participated in Enron’s fraud and its
coverup”). Many investors were defrauded as a result
of Enron’s scandal.
“To safeguard investors in public companies and
restore trust in the financial markets following the
collapse of Enron Corporation, Congress enacted the
Sarbanes-Oxley Act of 2002.” Lawson, 571 U.S. at
432. “The Sarbanes-Oxley Act, all agree, was
prompted by exposure of Enron’s massive accounting
fraud,” Yates, 574 U.S. at 536, and had the
overarching aim to “prevent and punish corporate and
criminal fraud, protect the victims of such fraud,
preserve evidence of such fraud, and hold wrongdoers
accountable for their actions.” Lawson, 571 U.S. at
435 (quoting S.Rep. No. 107-146 at 2 (2002)). In
essence, Section 1512 of the Sarbanes-Oxley Act—
when coupled with its corresponding provision in
Section 1519—“was intended to prohibit, in
particular, corporate document-shredding to hide
evidence of financial wrongdoing.” Yates, 574 U.S. at
536.
In 2002, it was the best of times when President
Bush “hailed” the Sarbanes-Oxley Act as “one of the
most-far reaching reforms of American business
practices since the time of Franklin Delano
Roosevelt.” Elisabeth Bumiller, Corporate Conduct:
The President; Bush signs Bill Aimed at Fraud in
Corporations, N.Y. Times (July 31, 2002), available at
http://www.nytimes.com/2002/07/31/business/corpora
5
te-conduct-the-president-bush-signs-bill-aimed-atfraud-in-corporations.html.
Fast forward two decades, and it is the worst of
times where—if the Circuit Court’s interpretation
and application of Section 1512(c) is to be followed—
“we might as well convert all of Washington’s office
buildings into prisons.” United States v. Fischer, 64
F.4th 329, 379 (D.C. Cir. 2023) (Katsas, J., dissenting)
(quoting United States v. North, 910 F.2d 843, 941-42
(D.C. Cir. 1990) (Silberman, J., concurring)).
One might justifiably wonder how this provision
aimed at “corporate document-shredding,” Yates, 574
U.S. at 536, implicates the First Amendment to the
United States Constitution. The answer: January 6th.
“Section 1512(c)(2) has been on the books for two
decades and charged in thousands of cases—yet until
the prosecutions arising from [January 6th], it was
uniformly treated as an evidence-impairment crime.”
Fischer, 64 F.4th at 377 (Katsas, J., dissenting)
(emphasis added).
What Congress intended to prevent fraudulent
document shredding has instead turned into a
Constitution-shredding provision being wielded in
novel, unintended, and grossly disproportionate
prosecutions of individuals who merely exercised
their First Amendment rights to assemble, speak, and
petition. “[U]ntil the January 6 prosecutions, courts
had no occasion to consider whether it sweeps more
broadly” than its intended purpose of preventing
evidence destruction. Id. The January 6 prosecutions
and the government’s unconstitutional overreach in
6
supercharging expressive activities into felonies
subject to 20-year prison sentences demand this
Court’s intervention.
There are certainly those who view January 6 as
“one of the greatest tragedies in American history.”
United States v. Garcia, No. 21-0129 (ABJ), 2022 WL
2904352, *13 (D.D.C. July 22, 2022). Others
disagree.3 But, even assuming arguendo that January
6 was the tragedy some claim, that is all the more
reason for this Court to ensure that the fateful events
of that day do not become a stain on the Constitution
itself. While it may be “tempting to hold that First
Amendment rights should acquiesce to national
security in this instance,” Tobey v. Jones, 706 F.3d
379, 393 (4th Cir. 2013), the survival of the Republic
depends on this Court not succumbing to that
temptation.
When tensions arise in the National conversation,
such as in the case of January 6, often “the fog of
public excitement obscures the ancient landmarks set
up in our Bill of Rights.” American Communist Ass’n,
C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J.,
dissenting). But, where the fog of public excitement is
at its apex, “the more imperative is the need to
preserve inviolate the constitutional rights of free
speech, free press and free assembly.” De Jonge v.
3 Others, more truthfully, note that while the vandalism that
occurred on January 6 was unlawful and should be punished, it
was not a national tragedy or an insurrection. See, e.g., Tucker
Carlson, The truth of what happened on Jan. 6 is still unknown,
Fox
News
(June
9,
2022),
https://www.foxnews.com/opinion/tucker-truth-happened-jan-6unknown (last visited Feb. 1, 2024.”).
7
Oregon, 299 U.S. 353, 365 (1937). Indeed, “[t]imes of
crisis take the truest measure of our commitment to
constitutional values. Constitutional values are only
as strong as our willingness to reaffirm them when
they seem most costly to bear.” Hartness v. Bush, 919
F.2d 170, 181 (D.C. Cir. 1990) (Edwards, J.,
dissenting). “History reveals that the initial steps in
the erosion of individual rights are usually excused on
the basis of an ‘emergency’ or threat to the public. But
the ultimate strength of our constitutional guarantees
lies in the unhesitating application in times of crisis
and tranquility alike.” United States v. Bell, 464 F.2d
667, 676 (2d Cir. 1972) (Mansfield, J., concurring)
(emphasis added).
Regardless of one’s views of the events
surrounding January 6, the First Amendment
demands more protection for constitutionally
protected expressive activities than the Circuit
Court’s application of Section 1512(c) provides. For,
“[i]f the provisions of the Constitution be not upheld
when they pinch as well as when they comfort, they
may as well be discarded.” Home Bldg. & Loan Ass’n
v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J.,
dissenting). This Court should relegate the
unconstitutional expansion of Section 1512(c) to the
dustbin of constitutional history.
SUMMARY OF ARGUMENT
The Circuit Court below, along with numerous
district courts before it, have permitted federal law
enforcement officials to use the document-shredding
prohibition in 18 U.S.C. §1512(c) to indict, convict,
8
and imprison defendants who merely sought to
exercise their constitutionally protected right to
expression. The application of this corporate financial
records law has run roughshod over the First
Amendment. Transgressors can be punished by
applicable law, but the Sarbanes-Oxley Act is neither
applicable nor appropriate here.
The provision at issue in the instant matter is
entitled, “Tampering with a witness, victim, or an
informant.” See 15 U.S.C. § 1512. It states:
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.
18 U.S.C. §1512(c).
Statutes that touch and concern cherished First
Amendment liberties must be carefully scrutinized to
ensure that the right to speak is not chilled by the
unintended consequences of laws not designed to
impact speech. The Circuit Court’s application of
9
Section 1512(c) criminalizes vast amounts of
constitutionally protected expression, casts a net far
too wide to survive constitutional scrutiny, would
make this Court’s past precedents a dead letter, and
fails to provide adequate notice to the citizenry that it
can be trotted out to punish unpopular defendants far
beyond what the law would otherwise allow. This
Court should resoundingly reject the use of Section
1512(c) to activities involving speech, assembly, and
petition; and put it back in its proper role as a
document-shredding prohibition. Anything less
tramples the First Amendment freedoms that lay “at
the foundation of a free society.” Shelton v. Tucker,
364 U.S. 479, 486 (1960).
ARGUMENT
I. THE CIRCUIT COURT’S APPLICATION OF
SECTION
1512(c)
TO
EXPRESSIVE
ACTIVITIES RUNS ROUGHSHOD OVER
THE FIRST AMENDMENT.
A. Criminal Statutes Touching Core First
Amendment
Activities
Must
Be
Scrutinized With Particular Care.
The operative language of the Sarbanes-Oxley Act
is straightforward:
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals
a record, document, or other object, or
attempts to do so, with the intent to impair
10
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.
18 U.S.C. §1512(c)
The plain language of Section 1512(c) applies to
documents and records, not expressive activity. And
even if one disagrees that what happened on January
6 was expressive activity, at least it should be clear
that the Sarbanes-Oxley Act has no application to the
events of January 6.
“Criminal statutes must be scrutinized with
particular care [and] those that make unlawful a
substantial amount of constitutionally protected
conduct may be held facially invalid even if they also
have legitimate application.” City of Houston v. Hill,
482 U.S. 451, 459 (1987) (internal citations omitted).
Since time immemorial, this Court has recognized
that “it would certainly be dangerous if the legislature
could set a net large enough to catch all possible
offenders, and leave it to courts to step inside and say
who could be rightfully detained and who should be
set at large.” Id. at 466 (quoting United States v.
Reese, 92 U.S. (2 Otto) 214, 221 (1876)).
11
The reason for this is simple: “the First
Amendment protects against the Government; it does
not leave us at the mercy of the noblesse oblige. We
would not uphold an unconstitutional statute because
the Government promised to use it responsibly.”
United States v. Stevens, 559 U.S. 460, 480 (2010).
This is especially true in cases involving criminal
statutes because “we cannot construe a criminal
statute on the assumption that the Government will
use it responsibly.” McDonnell v. United States, 579
U.S. 550, 576 (2016) (quoting Stevens, 559 U.S. at
480).
“[W]hen assessing the reach of a federal criminal
statute, we must pay close heed to the language,
legislative history, and purpose in order strictly to
determine the scope of the conduct the enactment
forbids.” Dowling v. United States, 473 U.S. 207, 213
(1985). Put simply, in an area touching upon critical
First Amendment liberties, statutes must be read
narrowly to avoid their unconstitutional application
to protected speech. “[A] statute in this field that can
linguistically be interpreted to be either a meat axe or
a scalpel should reasonably be taken to be the latter.”
United States v. Sun-Diamond Growers of Cal., 526
U.S. 398, 412 (1999). As Justice Frankfurter
colorfully put it,
[i]n order to curb a mischief Congress cannot
be so indefinite in its requirements that effort
to meet them raises hazards unfair to those
who seek obedience or involves surrender of
freedoms which exceeds what may fairly be
exacted. These restrictions on the broad scope
12
of legislative direction are merely the law’s
application of the homely saws that one
should not throw out the baby with the bath
or burn the house to roast the pig.
Am. Communist Ass’n CIO v. Douds, 339 U.S. 382,
419 (1950) (Frankfurter, J., concurring). The Circuit
Court’s application of Section 1512(c) to protected
expression presents this Court with “legislation not
reasonably restricted to the evil with which it is said
to deal,” Butler v. Michigan, 352 U.S. 380, 383 (1957),
and impermissibly turns Section 1512(c) into a meat
cleaver and then burns the house to roast the pig.
This Court should reject that novel, untethered, and
expansive reading of Section 1512(c)
B. Section 1512(c), As Construed By The
Circuit
Court,
Does
Not
Provide
Sufficient Notice That Its Scope Extends
To First Amendment Activities.
“[A]s we have recently reaffirmed, ambiguity
concerning the ambit of criminal statutes should be
resolved in favor of lenity.” United States v. Bass, 404
U.S. 336, 347 (1971) (cleaned up). “[W]hen choice has
to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before
we chose the harsher alternative, to require that
Congress should have spoken in language that is clear
and definite.” United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221-22 (1952). “[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.” Bass, 404
13
U.S. at 347 (cleaned up). See also Dowling, 473 U.S.
at 213 (same). “The fair notice requirement “exists in
part to protect the Due Process Clause’s promise.”
Bittner v. United States, 598 U.S. 85, 102 (2023).
Here, the Circuit Court’s acceptance of the
Government’s position that Section 1512(c) reaches
constitutionally protected expression fails to give fair
warning to anyone, much less Petitioner and the
other defendants subjected to the Government’s
unconstitutional application of Section 1512(c). As
this Court has acknowledged, “‘the law is settled that
penal statutes are to be construed strictly’ and an
individual ‘is not to be subjected to a penalty unless
the words of the statute plainly impose it.’” Bittner,
598 U.S. at 102 (quoting Commissioner v. Acker, 361
U.S. 87, 91 (1959)) (emphasis original). The Circuit
Court’s interpretation and application of Section
1512(c) ignores settled law by imposing the documentshredding prohibition’s penalties to First Amendment
activities.
As Judge Henderson noted in her dissent in a
separate January 6 case, it is “doubt[ful] whether, in
enacting section 1512(c), that Congress intended to
supercharge a range of minor advocacy, lobbying, and
protest offenses into 20-year felonies.” United States
v. Robinson, 86 F.4th 355, 396 (D.C. Cir. 2023)
(Henderson, J., dissenting). Judge Katsas’s dissent
below further demonstrates the constitutional flaw in
applying Section 1512(c) to such a broad swath of
constitutionally protected expression.
14
Consider a few more examples. A protester
who demonstrates outside a courthouse,
hoping to affect jury deliberations, has
influenced an official proceeding (or
attempted to do so, which carries the same
penalty). So has an EPA employee who
convinces a member of Congress to change his
vote on pending environmental legislation.
And so has the peaceful protestor in the
Senate gallery. Under an unlawful-means
test, all three would violate section 1512(c)
because each of them broke the law while
advocating, lobbying, or protesting. See 18
U.S.C. §1507 (prohibiting picketing outside a
courthouse with the intent to influence a
judge,
juror,
or
witness); id.
§1913
(prohibiting lobbying by agency employees);
40
U.S.C.
§5104(e)(2)(G)
(prohibiting
demonstrating inside the Capitol Building).
And each would face up to 20 years’
imprisonment—rather
than
maximum
penalties of one year, a criminal fine, and six
months, respectively.
Fischer, 64 F.4th at 380 (Katsas, J., dissenting).
Can Congress really have intended for the
penalties it already established for specific offenses
to be enhanced by twenty years at the whim of a
prosecutor in a case that does not involve evidence
destruction, and to allow that enhancement on the
basis of a document-shredding provision in SarbanesOxley? Surely not.
15
Take, for example, one of the federal trespassing
statutes. See 18 U.S.C. §1752. Congress enacted that
statute to prohibit, inter alia, (1) “knowingly
enter[ing] or remain[ing] in any restricted building or
grounds without lawful authority to do so,” (2)
“knowingly, and with intent to impede or disrupt the
orderly conduct of Government business or official
functions . . . imped[ing] or disrupt[ing] the orderly
conduct of Government business or official
functions,” (3) obstructing or impeding ingress or
egress to restricted buildings,” and (4) engaging in
violence against any person in a government
building. 18 U.S.C. § 1752(a)(1)-(4). The penalty for
such criminal trespass is “imprisonment for not more
than one year” and a monetary fine if no deadly
weapon or firearm is used and the trespass does not
result in significant bodily injury. 18 U.S.C.
§1752(b)(1)-(2). And, even if a deadly weapon or
firearm is used or an individual suffers significant
bodily injury as a result of the trespass, the
maximum penalty under the statute is 10 years’
imprisonment. 18 U.S.C. §1752(b)(1).
Under this particular federal trespass statute,
individuals can see on the face of the provision that it
applies to specific activity—entering and remaining
in a restricted federal building for the purpose of
impeding official business—and can see the
consequences of engaging in the prohibited conduct.
The trespass statute is plainly applicable to the
United States Capitol. See 18 U.S.C. §1752(c). It thus
provides fair notice to everyone what it prohibits,
where it applies, and what its consequences are. In
other words, it gives “a fair warning . . . to the world
16
in language that the common world will understand,
of what the law intends to do if a certain line is
passed.” McBoyle v. United States, 283 U.S. 25, 27
(1931).
The juxtaposition of this plainly applicable
statute with the plainly inapplicable documentshredding prohibitions of Section 1512(c) compels a
finding that the Circuit Court’s unprecedented
interpretation and application of Section 1512(c) to
expressive activities fails to provide adequate notice
to those who might suffer its consequences. No one
believed in 2002 when Sarbanes-Oxley was passed
that
Section
1512(c)’s
document-shredding
prohibition would later be applied to advocacy,
lobbying, and petition activities. Yet, the Circuit
Court’s interpretation and application of it below
accepts that it applies in such circumstances. “By
glossing over section 1512(c)(2)’s ambiguity and
adopting an all-encompassing interpretation,” the
Circuit Court diverged from well-settled precedent
that it should not “assign federal criminal statutes a
breathtaking scope.” Fischer, 64 F.4th at 383 (Katsas,
J., dissenting) (quoting United States v. Dubin, 27
F.4th 1021, 1041 (5th Cir. 2022) (Costa, J.,
dissenting)). The First Amendment requires more.
C. The Circuit Court’s Application Of
Section 1512(c) To First Amendment
Activities Would Criminalize Assembly,
Petition, And Free Speech.
The Circuit Court noted that its novel application
of a document-shredding provision to First
17
Amendment activities was, unsurprisingly, without
precedent. “To be sure, outside of the January 6 cases
brought in this jurisdiction, there is not precedent for
using §1512(c)(2) to prosecute the type of conduct at
issue in this case.” Fischer, 64 F.4th at 339 (emphasis
added). The reason for this is simple: use of Section
1512(c) in the manner below criminalizes large
swaths of constitutionally protected expression. The
only reason for Section 1512(c)’s unprecedented
application here is that the speech, assembly, and
expression was unpopular, detested by the very
prosecutors running amok with the section’s
prohibitions, and invited opprobrium from the
people—elected representatives—who it was aimed at
influencing. A crime of this nature is no crime—it is
the premise of our Constitution.
“The vitality of civil and political institutions in
our society depends on free discussion.” Terminiello
v. City of Chicago, 337 U.S. 1, 4 (1949). Indeed,
[t]he greater the importance of safeguarding
the community from incitements to the
overthrow of our institutions by force and
violence, the more imperative is the need to
preserve inviolate the constitutional rights of
free speech, free press and free assembly 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.
De Jonge v. State of Oregon, 299 U.S. 353, 365 (1937).
18
“The right to speak freely and to promote a
diversity of ideas and programs is therefore one of the
chief distinctions that sets us apart from totalitarian
regimes.” Terminiello, 337 U.S. at 4.
It follows from these considerations that,
consistently with the Federal Constitution,
peaceable assembly for lawful discussion
cannot be made a crime. The holding of
meetings for peaceable political action cannot
be proscribed. Those who assist in the conduct
of such meetings cannot be branded as
criminals on that score [and] mere
participation in a peaceable assembly and a
lawful public discussion [cannot be] the basis
for a criminal charge.
De Jonge, 299 U.S. at 365 (emphasis added). For in
these principles “lies the security of the Republic, the
very foundation of constitutional government.” Id.
That such speech, assembly, or expression invites
dispute or touches upon sensitive and unpopular
matters is of no moment. “[A] function of free speech
under our system of government is to invite dispute,”
Terminiello, 337 U.S. at 4, and “[i]t may indeed best
serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger.” Id. Indeed,
“[s]peech is often provocative and challenging,” id.,
and it “cannot be restricted simply because it is
upsetting or arouses contempt.” Snyder v. Phelps,
562 U.S. 443, 458 (2011). “If there is a bedrock
19
principle underlying the First Amendment, it is that
the government may not prohibit the expression of an
idea simply because society finds the idea itself
offensive or disagreeable.” Texas v. Johnson, 491 U.S.
397, 414 (1989).
The Circuit Court’s application of Section 1512(c)
permits the criminalization of expressive activities.
As Judge Katsas noted below,
An activist who successfully rails against
bringing a bill to a vote on the Senate floor has
obstructed
or
influenced
an
official
proceeding. . . . A lobbyist who successfully
persuades a member of Congress to change a
vote has likewise influenced an official
proceeding. So has a peaceful protestor who,
attempting to sway votes, holds up a sign in
the Senate gallery before being escorted
away. . . . the construction of section 1512(c)
adopted by my colleagues will sweep in all of
the above.
Fischer, 64 F.4th at 380 (Katsas, J., dissenting). And,
because—for purposes of Section 1512(c)—the
proceeding need not even be ongoing, see 18 U.S.C.
§1512(f)(1), all such activities would be subject to
criminal prosecution and 20 years’ imprisonment
regardless of when such activities took place or
whether a proceeding was actually obstructed. See id.
“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.”
20
Fischer, 64 F.4th at 380 (Katsas, J., dissenting)
(quoting United States v. North, 910 F.2d 843, 882
(D.C. Cir. 1990)).
D. This Court’s First Amendment Precedent
Would Be Unrecognizable In A World
Where Section 1512(c) Operates As The
Circuit Court Allowed In This Case.
This Court’s First Amendment precedent would be
vastly different had Section 1512(c) been applied in
the manner the Circuit Court permitted below. Take,
for instance, Cox v. Louisiana, where some 1,500 to
2,000 protestors demonstrated from the Louisiana
State Capitol to the courthouse. 379 U.S. 536, 538
(1965). One of the protestors, Reverend Elton Cox, led
a civil rights demonstration and was the organizer of
the large protest that led to numerous arrests. Id. at
538-39. During the demonstration, several police
officers “spoke to Cox at the northeast corner of the
capital grounds. Cox identified himself as the group’s
leader [and] explained that the students were
demonstrating to protest the illegal arrest of some of
their people who were being held in jail [and] to
protest the evil of discrimination.” Id. at 539-40.
Dissatisfied with what was a peaceful protest, the
police instructed Cox that his group had become
“inflammatory” and a disturbance of the peace. Id. He
was arrested and convicted of three offenses:
disturbing the peace, obstructing public passages,
and picketing before a courthouse. Id. at 538. He was
sentenced to almost two years in jail and $5,700 fine.
Id.
21
Much like here, the trial court found that it “must
be recognized to be inherently dangerous and a
breach of the peace to bring 1,500 people, colored
people, down in the predominantly white business
district . . . and congregate across the street from the
courthouse.” Id. at 550. This Court reversed and set
aside Cox’s conviction because the government’s
application of its ordinances violated the First
Amendment. Id. at 545. “It is clear to us that on the
facts of this case . . . Louisiana infringed appellant’s
rights of free speech and free assembly by convicting
him under this statute.” Id. This Court noted that the
evidence for conviction “showed no more than that the
opinions which the students were peaceably
expressing were sufficiently opposed to the views of
the majority of the community” and that using this as
the basis for a criminal conviction cannot be
countenanced under the First Amendment. Id. at 551.
“[T]he compelling answer is that constitutional rights
may not be denied simply because of hostility to their
assertion or exercise.” Id. (quoting Watson v. City of
Memphis, 373 U.S. 526, 535 (1963)).
Under the Circuit Court’s decision below, there is
little doubt Reverend Cox could have been charged
and convicted with a violation of Section 1512(c) for
“obstruct[ing], influenc[ing], or imped[ing] any official
proceeding” that may have been happening at the
courthouse that day, 18 U.S.C. §1512(c)(2), and
therefore sentenced to twenty years in prison.
Reverend Cox’s protest of the young men’s arrests and
detainment in jail could have been held, under the
Circuit Court’s analysis below, as obstructing the
future proceeding wherein the young men would be
22
tried, as attempting to influence the judge or jury who
would preside over that proceeding, or as impeding
access to a proceeding to be held on the day of the
protest because 1,500-2,000 people had taken up most
of the passageway to the courthouse. See 379 U.S. at
538-39.
The document-shredding prohibition under
Section 1512(c) was never intended to reach
Reverence Cox’s expressive conduct, nor for that
matter the events of January 6. But the logical
inference of the Circuit Court’s decision below is that
it would have reached Reverend Cox’s expression.
After all, the Circuit Court held that the fact Congress
might not have intended it is irrelevant, since that is
the “whole value of a generally phrased . . . catchall
for matters not specifically contemplated.” Fischer, 64
F.4th at 339 (cleaned up).
This Court’s decision in Edwards v. South
Carolina would likewise be vastly different had the
Circuit Court’s application of Section 1512(c) applied
in 1963. 372 U.S. 229 (1963). There, 187 petitioners
challenged their arrest and conviction for engaging in
a
protest
aimed
at
demonstrating
their
“dissatisfaction with the present condition of
discriminatory actions” to the “Legislative Bodies of
South Carolina.” 372 U.S. at 230. The protestors
specifically went to the South Carolina State House
grounds to target their dissatisfaction at officials who
would be meeting in the legislative body that day. Id.
Indeed, the protestors in Edwards targeted the State
House because it was the building containing the
Executive Branch of the South Carolina government,
23
the Legislative Branch, and the Judicial Branch.” Id.
at 235 n.10. Despite the fact that the only disturbance
the protestors caused was to “slow down” vehicular
traffic on the capitol grounds, id. at 231. The
protestors were charged and convicted of breach of the
peace. Id. at 234. Each of the protestors was
sentenced to between five and 30 days in jail. Id. at
234. This Court held that such convictions could not
withstand First Amendment scrutiny. “The
Fourteenth Amendment does not permit a State to
make criminal the peaceful expression of unpopular
views.” Id. at 237.
Using the Circuit Court’s understanding of Section
1512(c), petitioners in Edwards would no doubt have
been obstructing an official proceeding, or—by their
own admission—attempting to do so, because “during
the period covered in the warrant in this matter . . .
the Legislature of South Carolina was in session.” Id.
at 235 n.10. Thus, there would have been an ongoing
“official proceeding,” Fischer, 64 F.4th at 342-43, and
petitioners in Edwards would have been “corruptly”
attempting to “influence” that proceeding by taking
“obstructive action [that was] independently
unlawful” under South Carolina law. Id. Thus, rather
than the 30-day jail penalty, the Edwards petitioners
would have “face[d] up to 20 years’ imprisonment”
under the Circuit Court’s decision to “supercharge a
range of minor advocacy, lobbying, and protests.” Id.
at 380 (Katsas, J., dissenting).
Similarly, would Paul Robert Cohen have been
subject to a supercharged felony punishable by 20
years’ imprisonment for impeding or attempting to
24
impede the work of the Los Angeles Municipal Court
on April 26, 1968? See Cohen v. California, 403 U.S.
15 (1971). There, Mr. Cohen was present for business
in the “corridor outside of division 20 of the municipal
court wearing a jacket bearing the words ‘F*** the
Draft.” Id. at 16. He was convicted and sentenced to
30 days’ imprisonment for disturbing the peace. Id.
This Court set aside his conviction because the First
Amendment prohibits the state from criminalizing
speech that might otherwise be deemed offensive to
some. Id. at 26. There were, no doubt, official court
proceedings taking place in the Los Angeles
Municipal Court that morning, and Mr. Cohen
doubtlessly caused some impediment to those
proceedings by requiring officers to arrest him in the
“corridor outside division 20.” Id. at 16. And, Mr.
Cohen testified that “he wore the jacket knowing that
the words were on the jacket as a means of informing
the public of the depth of his feeling against the
Vietnam War and the draft.” Id. Thus, Mr. Cohen
intentionally wore a jacket that would cause a
disturbance (i.e., obstruction or impediment) inside
the courthouse during official proceedings. Under the
Circuit Court’s rationale below, Mr. Cohen thus
“corruptly” impeded an official proceeding, and could
have been sentenced to 20 years’ imprisonment under
Section 1512(c).
Had the Circuit Court’s understanding of Section
1512(c) been applicable at the time of these cases and
had it been adopted by this Court, as the United
States requests here, the First Amendment would
look nothing like the shining beacon of protection this
Court’s precedents have otherwise made it.
25
II. THE CIRCUIT COURT’S INTERPRETATION
AND APPLICATION OF SECTION 1512(c) IS
UNCONSTITUTIONALLY
VAGUE
AND
OVERBROAD.
The Circuit Court’s interpretation and application
of Section 1512(c) to permit prosecution for expressive
activities without any limiting principle makes
Section 1512(c) unconstitutionally vague and
overbroad, and permits the government to selectively
enforce it.
A. The Circuit Court’s Extension Of Section
1512(c) To First Amendment Activities
Leaves People Of Ordinary Intelligence
Guessing At Its Meaning And Differing As
To Its Application.
A law is unconstitutionally vague and overbroad if
it “either forbids or requires the doing of an act in
terms so vague that [persons] of common intelligence
must necessarily guess at its meaning and differ as to
its application.” Connally v. Gen. Const. Co., 269 U.S.
385, 391 (1926). Government restrictions “must be so
clearly expressed that the ordinary person can
intelligently choose, in advance, what course it is
lawful for him to take.” Id. at 393. “Precision of
regulation” is the touchstone of the First Amendment.
NAACP v. Button, 371 U.S. 415, 435 (1963). “It is a
basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined.” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). While all regulations must be reasonably
26
clear, “laws which threaten to inhibit the exercise of
constitutionally protected” expression must satisfy “a
more stringent vagueness test.” Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 499 (1982). Thus, a law must give “adequate
warning of what activities it proscribes” and must “set
out explicit standards for those who apply it.” See
Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973)
(citing Grayned, 408 U.S. at 108).
As Chief Justice Hughes wrote in Stromberg v.
California,
The maintenance of the opportunity for free
political discussion to the end that
government may be responsive to the will of
the people and that changes may be obtained
by lawful means, an opportunity essential to
the security of the Republic, is a fundamental
principle of our constitutional system. A
statute which upon its face, and as
authoritatively construed, is so vague and
indefinite as to permit the punishment of the
fair use of this opportunity is repugnant to the
guaranty of liberty contained in the
Fourteenth Amendment.
283 U.S. 359, 369 (1931); see also, Edwards, 372 U.S.
at 238 (same).
As Judge Katsas pointed out below, the First
Amendment infirmities arising from the Circuit
Court’s application of Section 1512(c) would otherwise
be problematic in themselves, but “[t]his problem is
27
particularly serious given the breadth of Section
1512(c).” Fischer, 64 F.4th at 379 (Katsas, J.,
dissenting). Section 1512(c)’s prohibitions—if not
appropriately cabined to prohibit application to
constitutionally protected activity—leaves men
guessing whether their otherwise lawful activities
automatically become serious felonies at the whim of
a rogue prosecutor. Indeed, Section 1512(c), without
appropriate restrictions, “would sweep in any conduct
that influences or affects an official proceeding.” Id.
(emphasis added).
Imagine a tobacco or firearms lobbyist who
persuades Congress to stop investigating how
many individuals are killed by the product.
Would the lobbyist violate section 1512(c)
because his conduct was ‘wrongful’ or
‘immoral’ in some abstract sense? Or what if
the lobbyist believed that his work was
wrongful or immoral, but did it anyway to
earn a living? The lead opinion dismisses such
hypotheticals . . . but without explaining why
liability would not attach under a mere
requirement of acting wrongfully.
Id.
The Constitution does not permit the government
to leave people guessing as to whether their speech
and expressive activities might be subject to
prosecution under a statute having nothing to do with
speech. “A criminal prosecution under a statute
regulating expression usually involves imponderables
and contingencies that themselves may inhibit the
28
full exercise of First Amendment freedoms.”
Dombrowski v. Pfister, 380 U.S. 479, 486 (1965).
“When the statutes also have an overbroad sweep,” as
the Circuit Court’s application of Section 1512(c) does
below, “the hazard of loss or substantial impairment
of those precious rights may be critical.” Id. Under the
Circuit Court’s application of Section 1512(c) below,
even individuals who peacefully engaged in lawful
protest may find themselves on the receiving end of a
felony prosecution by the United States Department
of Justice because the Circuit Court’s application of
Section 1512(c) “lends [itself] too readily to denial of
[First Amendment] rights.” Id. “The assumption that
defense of a criminal prosecution will generally
assure ample vindication of constitutional rights is
unfounded in such cases.” Id. The reason for this is
amply demonstrated by even the concurrence below,
which noted that “[a]n innovatively broad definition
of ‘corruptly’ could raise serious concerns that
§1512(c)(2) is a vague provision with a breathtaking
scope.” Fischer, 64 F.4th at 360 (Walker, J.,
concurring) (emphasis added).
Under the Circuit Court’s interpretation, Section
1512(c) “would sweep in advocacy, lobbying, and
protest—common mechanisms by which citizens
attempt to influence official proceedings.” Id. at 378
(Katsas, J., dissenting). But, “[h]istorically, these
activities did not constitute obstruction unless they
directly impinged on a proceeding’s truth-seeking
function through acts such as bribing a decisionmaker
or falsifying evidence presented to it.” Id. Section
1512(c) “seems an unlikely candidate to extend
obstruction law into new realms of political speech.”
29
Id. (emphasis added). But, as unlikely a candidate as
the face of the statute might suggest, the Circuit
Court below and numerous district courts before it
turned it into precisely that vehicle and ran
roughshod over the First Amendment in the process.
And, regardless of the unlikeliness of Section
1512(c)’s candidacy for obstruction prosecutions
before, that is irrelevant for purposes of the First
Amendment. “[W]e have not thought that the
improbability of successful prosecution makes the
case different. The chilling effect upon the exercise of
First Amendment rights may derive from the fact of
the prosecution, unaffected by the prospects of its
success or failure.” Dombrowski, 380 U.S. at 487.
Simply put, this Court does not tolerate “in the area
of First Amendment freedoms, the existence of a
penal statute susceptible to sweeping and improper
application.” Button, 371 U.S. at 433.
The Circuit Court below questioned the
hypotheticals that Judge Katsas raised by suggesting
that an appropriate narrowing of the word “corruptly”
solves all constitutional problems. Fischer, 64 F.4th
at 339-40. But, as this Court has held, “[i]t is no
answer to say that the statute would not be applied in
such a case,” Keyishian v. Bd. of Regents of Univ. of
N.Y., 385 U.S. 589, 599 (1967), because the mere
possibility of such enforcement “intimidates parties
into censoring their own speech, even if the discretion
and power are never abused.” City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988).
Under the Circuit Court’s interpretation and
application of Section 1512(c), “[t]he range of
activities which are or might be deemed inconsistent
30
with the required promise is very wide indeed,”
Baggett v. Bullitt, 377 U.S. 360, 371 (1964), and the
“boundaries of the forbidden areas [not] clearly
marked.” Id. at 372. Under the Circuit Court’s
application of Section 1512(c), one is left to wonder:
“Where does fanciful possibility end and intended
coverage begin.” Id. at 373. That is a question the
First Amendment prohibits the government from
imposing on the citizenry. The Circuit Court below
puts them to that unenviable inquiry. “Free speech
may not be so inhibited.” Id. (emphasis added).
B. The Government’s Selective Application
Of Section 1512(c) Proves It Is Vague And
Runs Afoul Of Vital Constitutional
Guarantees.
The United States’ selective application of Section
1512(c) also demonstrates that, under the Circuit
Court’s interpretation and application, it is an
unwieldy and unprincipled provision capable of
discriminatory application at the whim of roving
prosecutors. A few examples demonstrate the
problems of such an untethered interpretation of
Section 1512(c). As the Circuit Court recognized,
“outside of 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.” Fischer, 64 F.4th at 339. Yet, the United
States
dusted
off
this
document-shredding
prohibition to supercharge the minor offenses of some
and the constitutionally protected expression of
others into felonies subject to 20 years’ imprisonment.
In no other instance, including a host of recent
31
examples of similar expressive activities disrupting
official proceedings, has the United States wielded
the sword of Section 1512(c) to impose such drastic
penalties.
Take for instance, the violent assaults at the
Hatfield Federal Courthouse in Portland, Oregon in
July 2020. See Portland Riots Read Out: July 21, U.S.
Department of Homeland Security (Jul. 21, 2020),
https://www.dhs.gov/news/ 2020/07/21/portland-riotsread-out-july-21 (last visited February 1, 2024).
There, the United States Department of Homeland
Security noted “violent attacks on federal officers
with weapons as well as efforts to start fires at the
Hatfield Federal Courthouse with law enforcement
officers inside the building.” Id. (emphasis added). As
reported, “over 1,000 people surrounded the Hatfield
Federal Courthouse and began removing plywood
coverings from the windows meant to protect the
building and the federal officers inside, and then
attempted to throw objects – some of them incendiary
– through the windows at the offices.” Id. These
individuals – though plainly committing violent
crimes (i.e., acting “corruptly”) – were no doubt
obstructing official proceedings at the federal
courthouse in Portland.
Did Section 1512(c) make an appearance in those
felony prosecutions of the terrorists and anarchists in
Oregon who plainly assaulted a federal building and
impeded official proceedings? No.
Or, take Defendant Tighe Barry, who unlawfully
and intentionally obstructed the Judiciary Committee
32
of the United States Senate during its hearings on the
appointment of Justice Brett Kavanaugh. See United
States v. Barry, No. 18-cv-00111 (RMM), 2019 WL
2396266 (D.D.C. June 5, 2019). On September 6,
2018, Defendant Barry “attended the Senate
confirmation hearing for then-nominee Justice Brett
Kavanaugh in the Hart Senate Office Building.” 2019
WL 2396266, at *1. “The officers observed Mr. Barry
allegedly placing a pink tiara hat on his head with the
writing ‘KAVA-NOPE CODE PINK’ and allegedly
advised him that demonstrating was prohibited and
to remove the hat.” Id. Defendant Barry “then pulled
out a large sign and stood on top of his chair and
allegedly began shouting in the direction of the
hearing committee members.” Id. “When approached
by the officers, Mr. Barry allegedly leapt from his row
of chairs to the row in front of him, causing a chair to
dislodge towards other attendees behind him and
allegedly injuring another hearing attendee.” Id. “The
officers then removed Mr. Barry from the hearing
room, while he allegedly continued to shout, carrying
him out by his arms and legs.” Id.
Did the United States dust off Section 1512(c) to
prosecute Mr. Barry for corruptly obstructing,
impeding, or attempting to influence the Senate
confirmation hearings for Justice Kavanaugh? No.
Notably, Defendant Barry was charged with
disorderly conduct at the United States Capitol. Id.
(citing 40 U.S.C. §5104(e)(2)(D)). Judge Katsas
pointed out that a “protestor in the Senate gallery”
could be charged with exactly what Defendant Barry
was charged with and face only six months’
33
imprisonment, Fischer, 64 F.4th at 380 (Katsas, J.,
dissenting), while a January 6 defendant subject to
Section 1512(c)’s newfound use would suffer the
supercharged felony worth 20 years’ imprisonment.
Contrary to Petitioner below, Defendant Barry
suffered no such fate.
Or, take the recent anti-Israel protestors storming
the rotunda of the Cannon House Office Building. See
Jillian Smith, Hundreds arrested after ProPalestinian demonstrators flood Cannon Rotunda,
Capital Complex, FOX 5 DC (Oct. 18 2023),
https://www.fox5dc.com/news/pro-palestinianprotestunderway-at-capitol-rotunda-uscp-detains-some
demonstrators-israel-hamas-war-capitol-hill-jewishvoices-for-peace (last visited February 1, 2024).
There, “demonstrators flood[ed] into the Cannon
House Office Building and large crowds gather[ed]
with flags and signs around the Capitol complex.” Id.
It took Capitol Police “hours to clear the crowd that
had grown inside,” and several individuals had
assaulted officers. Id. The Capitol Police charged
them with illegally protesting inside a House Office
Building. Id.
Again, did the United States trot out Section
1512(c) to prosecute these violent protestors that
“stormed the Capital” in the same manner as the
numerous January 6 defendants are alleged to have
done? No.
The above examples are not the only recent
protestors who “stormed” the Capitol and disrupted
the work of Congress. In November, members of the
34
Code Pink organization staged a protest in the United
States Senate building. See Emily Jacobs, Israel war:
Code Pink occupies Senate Democrat offices
demanding Gaza ceasefire (November 3, 2023),
https://www.washingtonexaminer.com/news/2433753
/israel-war-code-pink-occupies-senate-democratoffices-demanding-gaza-ceasefire/
(last
visited
February 1, 2024). The Code Pink protestors “covered
themselves in fake blood” and “took over the offices”
of 10 United States Senators. Id.
In December, another group of protestors occupied
the Hart Senate Office Building, sprawling
themselves on the floor to obstruct passage, throwing
“blood money” all over the atrium floor, and climbing
on statues to protest the United States position on
Israel. See Rachel Schilke, Capitol Police arrest more
than 40 pro-ceasefire protestors inside Senate office
building, Washington Examiner (December 11, 2023),
https://www.washingtonexaminer.com/news/senate/2
449305/capitol-police-arrest-more-than-40-proceasefire-protesters-inside-senate-office-building/
(last visited February 1, 2024).
Did Section 1512(c) make an appearance in any of
these matters? No, all protestors were charged with
violation of a D.C. ordinance prohibiting protesting in
a government building.
The disparate application of laws runs afoul of the
basic premise of our constitutional system. “[A]ll
should be governed by the same legal standards to the
end that they receive equal treatment under law.”
Kinsella v. Krueger, 351 U.S. 470, 477 (1956). And,
35
“[i]mpartiality in this sense assures equal application
of the law” and “guarantees a party that the judge
who hears his case will apply the law to him in the
same way he applies it to every other party.”
Republican Party of Minn. v. White, 536 U.S. 765, 776
(2002). The Circuit Court’s interpretation and
application of Section 1512(c) in this case, and in
many others concerning the January 6 defendants,
blatantly ignores this fundamental principle of the
Constitution. “The effect of a double standard might
well create sufficient unrest and confusion to result in
the destruction of effective law enforcement.”
Kinsella, 351 U.S. at 477. The prosecution of
Petitioner Fischer below and many of the January 6
defendants prosecuted by the United States under
Section 1512(c) runs this unacceptable risk. The
conviction should be reversed, and Section 1512(c)
returned to its rightful place as a document-shredding
prohibition. Any other outcome leaves it as a
Constitution-shredding criminal prohibition with
unimaginable consequences for the First Amendment
and the Republic.
CONCLUSION
The Circuit Court’s interpretation and
application of Section 1512(c) cannot be reconciled
with the First Amendment. This Court should reverse
and hold that Section 1512(c) does not apply beyond
its intended document-shredding purpose.
36
Respectfully submitted,
Mathew D. Staver
Horatio G. Mihet
Counsel of Record
Daniel J. Schmid
Anita L. Staver
LIBERTY COUNSEL
LIBERTY COUNSEL
P.O. Box 540774
109 Second St., NE
Orlando, FL 32854
Washington, D.C. 20002
(407) 875-1776
(202) 289-1776
court@LC.org
court@LC.org
Counsel for Amicus
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.