Legal experts ask Supremes to fix court mistakes in Jan. 6 case

October 20, 2023
World Net Daily

This story was originally published by the WND News Center.

A prominent team of experts in the law is urging the Supreme Court to take up the arguments of one Jan. 6 protester, because the Department of Justice, in its apparent politicization of the prosecutions, has used an unconstitutional law against the protesters.

The law, known as the Sarbanes-Oxley statute, actually criminalizes First Amendment-protected speech, explains a friend-of-the-court brief filed by the lawyers at William J.Olson, P.C.

The brief urges the high court to take up the appeal of Joseph W. Fischer, one of many thousands who rallied for President Donald Trump that day. A few hundred of those later went to the Capital, and there the protests turned into a riot for a number of people.

The legal team explained its brief arguing, "Since the government claimed the election protest on January 6 was an insurrection, it should have charged many defendants with that crime, but instead it charged no one with insurrection, preferring the use of a Sarbanes-Oxley provision (which does not apply) to get a more severe sentence."

The lawyers, representing America's Future, U.S. Constitutional Rights Legal Defense Fund, and the Conservative Legal Defense and Education Fund, note Fischer was at the rally, then headed home. When he heard of events at the Capitol, he went there, and was inside the building for four minutes "when he returned handcuffs that an officer had dropped," talked with other officers, "was pushed into a police line, was pepper sprayed, and left."

He, and others, were accused by the feds of "tampering with a witness, victim, or an informant," under Sarbanes-Oxley, but not insurrection, a word that has been used by Joe Biden and other Democrats hundreds of times to describe events that day. Sarbanes-Oxley came about in a case in which documents were destroyed to try to conceal culpability.

The filing suggests prosecutors are using Sarbanes-Oxley because it allows a 20-year sentence, to the 10 years allowed for "insurrection."

Lower courts had dismissed the counts against Fischer relating to "documents" because there were none. But the appeals court restored them.

"The Biden administration has consistently described what happened at the U.S. Capitol on January 6, 2021, as an 'insurrection' against the U.S. government by the supporters of President Trump. The term 'insurrection' was carefully chosen to evoke a vision of a violent effort to overthrow the government. Congress enacted a specific statute to punish insurrection against the United States which carries a serious maximum sentence of 10 years. However, a 10-year sentence apparently was not sufficient for the Biden Justice Department, because, as President Biden claims: 'This was an armed insurrection.' Thus, prosecutors apparently cast about for another crime with a heavier sentence with which to charge the Trump supporters. They landed on an obscure provision of the Sarbanes-Oxley Act of 2002, enacted to address financial scandals associated with Enron and other companies — 18 U.S.C. § 1512(c)(2). By taking the phrase 'official proceeding' entirely out of context, it has indicted hundreds, including Petitioner Fischer, for a crime that carries a sentence twice what Congress provided for insurrections — 20 years.

"Allowing this strained reading to stand can be expected to lead to further weaponization of the Justice Department, such as the use of this statute to base a prosecution of Congressman Jamaal Bowman for the false fire alarm he set to delay proceedings on the House floor, should the Biden Administration be turned out in the next election," the document warned.

Bowman set off a fire alarm when Democrats were trying to delay House proceedings on a budget bill. He claimed he thought the fire alarm would open a door.

Then there was the skewed description of Jan. 6 from the appeals court, which used loaded language like "disrupt" and "mob" "swarmed" "riot" and "rioters."

"From the perspective of the Trump supporters, most did not believe Trump really was the losing candidate, they went to the Capitol to protest (not disrupt) and then assembled at (not converged at and swarmed) the Capitol."

It's time for the "insurrection" narrative to be put away, the document charges.

"It appears that the circuit court was so committed to punishing everyone near the perceived 'insurrection' that it glossed over not only facts of the Fischer case … but also the text, history, and purpose of the Sarbanes-Oxley Act.

"In our divided nation, there is another side to the story, which is believed by half of America. On January 6, 2021, most Trump supporters traveled to the Capitol to exercise their constitutional rights to speak, to assemble, and to petition the government. While some engaged in conduct deserving of prosecution, most listened to speeches, held signs, and joined with other like-minded Americans near what Congress once called 'the People’s House,' in order to 'peacefully and patriotically' petition the government — only to be punished as 'enemies of the state' at the hands of a politicized and weaponized Justice Department—thus far with the sanction of courts.

"To be sure, a riot occurred at the Capitol, but with the shocking failure or refusal of authorities to prepare for the protest, Congress’ concealment of surveillance videos, and the government’s failure to prosecute in a meaningful way some of those who demonstrably incited the riot, how it was triggered cannot yet be known."

Additionally, the circuit court's select use of words from the law actually criminalizes activities protected by the First Amendment, the brief confirms.

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