The United States Supreme Court heard arguments on April 16, 2024 stemming from appeals made by multiple January 6, 2021 insurrectionists arguing their charges related to attempts to "obstruct official proceedings" should be thrown out. The arguments involve two key elements. One, that the language supporting the charges derives from Sarbanes-Oxley legislation enacted in the context of FINANCIAL crimes and that the "obstruction" clause cited in criminal charges is actually tied to a predecessor clause that narrowly involves the destruction of documents. Lawyers for these January 6 defendants are essentially arguing that insurrectionists were not involved with activities involving FINANCIAL crimes ergo the secondary clause of "obstruction official proceedings" has no antecedent in these cases, justifying the dismissal of these charges, thereby lessening or eliminating charges for some defendants.
In news that should shock no one at this point, conservative judges on the USSC, led by Chief Justice John Roberts, are voicing support for this argument. Their reasoning for doing so not only does violence to the facts of the January 6 insurrection concocted by Donald Trump and brought to fruition by thousands of his followers but does violence to plain language, grammar and punctuation. And it appears the argument raised by defense counsel doesn't even understand the structure of the applicable US code.
To understand the slight of hand being attempted, each aspect of this argument has to be carefully analyzed, one element at a time.
The Sarbanes-Oxley Angle
The Sarbanes-Oxley act of 2002 was enacted in response to legions of crimes committed not only by energy trading firm Enron but its auditors who together engaged in YEARS of financial fraud to synthesize billions in profits from thin air then together destroyed boxes of evidence once the firm collapsed and regulators began investigating the fraud. The language of Sarbanes-Oxley added two sections to Title 18 of the US Code governing criminal procedures.
SEC. 802. CRIMINAL PENALTIES FOR ALTERING DOCUMENTS.
(a) In General.--Chapter 73 of title 18, United States Code, is amended by adding at the end the following:
"Sec. 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
On the surface, the language above would seem to SUPPORT the defense argument that references to "obstruction" here only apply to cases involving "Federal investigations and bankruptcy."
But note that there's no reference to any "proceeding" in this language. That's because there is an OLDER section of this same Title 18 section of the US code that pre-dates Sarbanes-Oxley by twenty years and has nothing to do with the handling of financially related crimes. That is the section that has the reference to "obstruction of an official proceeding". Here is that language from section 1512 (c) of Title 18:
(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.
It's useful to review that entire section of the US Code. Section 1512 dates from 1982 when prior statutes regarding witness tampering, etc. were consolidated and clarified. Those clauses from 1982 involve crimes related to murdering witnesses, use of threats to intimidate witnesses or acts that prevent witnesses from attending required proceedings. NONE of those clauses including (c) above reference ANY constraints regarding the nature of the criminal case.
The argument that obstruction charges related to "official proceedings" are not applicable to January 6 defendants because the acts involved were not related to financial crimes is groundless and isn't addressing the actual US code involved in the charges.
The Grammar Angle
If the argument centers on the ACTUAL US code involved under Title 18 Section 1512, the next argument being made by the grammarians of the Supreme Court is that the two clauses in section (c) of 1512 are DEPENDENT upon one another. The SECOND clause cannot apply unless the conditions of the FIRST clause are met. This interpretation defies ANY reasonable understanding of the English language, grammar and punctuation. The actual STRUCTURE of section 1512 could be rendered this way:
(c) 1) Whoever corruptly 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 shall be fined under this title or imprisoned not more than 20 years, or both.
(c) 2)Whoever corruptly 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.
Instead, the drafters of the language chose to re-use "Whoever corruptly" and " shall be fined under this title or imprisoned not more than 20 years, or both" and bulletize the two independent conditions for referential clarity. While referenced in a list, list item #1 ENDS with "or" to explicitly state the two are not mutual conditions and list item #2 BEGINS with the word "otherwise" to explicitly state any OTHER action unrelated to destruction of records that interferes with official proceedings triggers this law.
There is nothing in the language of the ACTUAL section 1512 of Title 18 that is actually driving these "obstruction" charges for January 6 insurrectionists that is remotely ambiguous nor remotely indicative of a condition upon destruction of documents as a required precondition for triggering prosecution for this crime.
The Destruction of Documents Angle
Assume for a moment that an alternate universe of English grammar exists that only Supreme Court Justices are capable of interpreting and that somehow, a ruling is made that items #1 and #2 of section 1512 are conditional upon each other in order to trigger charges. Is that grounds for dismissing charges against January 6 insurrectionists? Defense attorneys may argue their client didn't actually destroy any documents or didn't "intend" to destroy any official documents.
The reality of that argument isn't ironclad. The entire POINT of the attack on the capital was to disrupt the Electoral College certification of the 2020 election. That process involves actual tabulations of electoral votes submitted by each state legislature. There is ample evidence the architects of the attack on the Capital and those who actually participated attempted to find those state elector slates and confiscate or destroy them in order to cast doubt on the validity of the proceeding, trigger a delay of hours or days, and give Trump's legal fraudsters additional time to strong-arm officials from specific states to alter their electoral slates to throw the electoral result to Trump.
More importantly, the actual interpretation of section 1512 does not require any attempt to SUCCEED. The conditions triggering crimes under section 1512 are met by merely ATTEMPTING acts of obstruction or destruction. Success of the attempts is not required to trigger charges.
The entire January 6 insurrection was an explicit plan to trigger the destruction or alteration of official documents (electoral slates from state legislatures) and delay scheduled proceedings dictated by the Constitution to count those documents to provide more time for their fraudulent alteration.
WTH
