By Joseph M. Hanneman
For the second time in eight days, U.S. District Judge Carl J. Nichols has dismissed a felony obstruction charge alleging that a Jan. 6, 2021, U.S. Capitol breach defendant tried to prevent the certification of Electoral College votes in the 2020 presidential race.
Nichols ruled in the case of United States v. Joseph W. Fischer that the statute used by prosecutors—18 U.S.C. SS 1512(c)(2)—doesn’t apply to the allegations against Fischer.
The 1512 subsection of the U.S. Code is meant to prevent tampering or destruction of documents and records, and not alleged attempts to derail certification of the presidential election results, according to Nichols.
“Nothing in Count Three (or the superseding indictment generally) alleges, let alone implies, that Fischer took some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence Congress’s certification of the electoral vote,” Nichols wrote in a 10-page ruling. “The Court will therefore grant Fischer’s motion to dismiss Count Three.”
Nichols threw out the same charge on March 7 in the case of Garret A. Miller, 35, of Richardson, Texas. Miller faces 11 other Jan. 6, 2021-related charges.
The judge is still considering Fischer’s motion to dismiss two other counts in the indictment, both of which have to do with his alleged presence and behavior in a “restricted building or grounds.”
Under U.S. Code, “restricted” means “any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.”
Fischer, 55, of Jonestown, Pennsylvania, argued that this part of the statute doesn’t apply to Jan. 6, 2021. Vice President Mike Pence couldn’t have been temporarily visiting the Capitol because he had a permanent office as president of the U.S. Senate and was present in his official role on Jan. 6, 2021.
During oral arguments on Feb. 28, prosecutors said they were willing to amend the superseding indictment against Fischer to state that two members of Pence’s immediate family were present for the counting of Electoral College votes.
Nichols gave the U.S. Department of Justice 14 days to either amend the indictment or state on the record why it won’t do so.
Fischer was indicted in November 2021 (pdf) on seven charges, including civil disorder; assaulting, resisting, or impeding police; disorderly conduct in a Capitol building; parading, demonstrating, or picketing in a Capitol building; and the three charges mentioned above.
Prosecutors say Fischer—a patrolman with the North Cornwall Township Police Department in Pennsylvania—posted a nearly three-minute video to Facebook. Text appeared with the video.
“Made it inside … received pepper balls and pepper sprayed. Police line was 4 deep,” the text reads.
Nichols is the first judge in the District of Columbia Circuit to rule that subsection 1512 can’t be applied to behaviors that disrupted or attempted to disrupt certification of election results.
In five recent Jan. 6, 2021, Capitol breach cases, Judges Amit P. Mehta, Timothy J. Kelly, Dabney L. Friedrich, Randolph D. Moss, and James E. Boasberg all rejected motions to dismiss the charge of obstructing a government proceeding.
