The Supreme Court has upended hundreds of conviction of J6 insurrectionists. The court has ruled that the charge of obstructing Congress in 18 U.S.C. § 1512(c) requires “that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.” You can read the court’s decision HERE.
To understand why I disagree with the court’s decision here, let’s look at the words of the statute.
“(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.”
The defendant in the case was charged under subparagraph (2) in this case. It is clear that subparagraph (1) captures the conduct (affecting documents) the court says is required for subparagraph (2). The court’s decision improperly links the requirements of subparagraph (1) with subparagraph (2).
Such a link is clearly wrong because of the simple word “or” at the end of subparagraph (1). That makes (2) a distinct violation in itself, severed from the requirements of (1). That is what the use of the word “or” means in English and law.
The word “otherwise” at the start of (2) further divorces that provision from any linkage to (1). With the use of “or” and “otherwise” Congress made clear that anyone otherwise obstructing or impeding an official proceeding is guilty of this crime. I mean, duh. That is literally what the law says.
In the words of Justice Barrett’s dissent, the court refuses to accept this because the court “simply cannot believe that Congress meant what it said.”
This decision is a horrible example of judicial activism. Further, that activism reduces the penalties imposed for a violent insurrection aimed at destroying our democracy.
