Fischer v. United States

We will hear argument this morning in case 2355-72, Fisher v.

United States.

Hey, everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Fisher v.

United States.

This is a case from the court's most recent term that asks whether one can be charged with obstructing an official proceeding after storming the Capitol to obstruct an official proceeding.

The holding here really narrows the meaning of this statute that penalizes obstruction of an official proceeding.

In a 6-3 decision, the court ruled that when Joseph Fisher joined January 6th rioters to stop Congress from certifying the election of a new president, he did not actually obstruct a legal proceeding since he did not tamper with any evidence.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ravaged our nation like raccoons ravaging my trash cans.

I'm Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hello.

Peter moved out to the burbs, and now

he has real suburban problems.

These are

the issues impacting real Americans.

I cannot wait for a month of

HOA complaints.

Do you have an HOA?

No, absolutely not.

Oh, damn it.

Those are the real fascists, too.

I'm going to be honest, I think I would thrive in an HOA.

So

I think I would rise to the top.

Finner's not scared of the cutthroat HOA environment.

That's where he would

assert himself as alpha.

Are people obnoxious and pedantic in HOAs?

You don't think I might do okay in an environment like that?

I can see it.

Yeah, I can see it.

All I know is today was our first trash day.

And people were like, yeah, watch out for raccoons.

So like, I put out the trash right before going to bed.

And then, no, yeah, raccoons got into it.

First night, just right off the bat.

So I can already tell I am at war.

You know, like it's, it's on.

This will never end.

This is just a perpetual part of my life now.

It's like, what are the raccoons thinking right now?

Today's case, Fisher v.

United States, this is a case from just this term about election integrity, folks, about the common citizen fighting for justice.

What would you do if an election was being stolen right in front of your eyes?

Is this like the what would you do date line kind of like

John Tinyone's?

What would you do if you saw an election being stolen?

We set up a camera to see how people react.

Yeah.

I always enjoy those shows when I watch them.

Well, this was probably the worst episode.

I will tell you what a retired police officer from Pennsylvania named Joseph Fisher did when he saw an election being stolen.

He headed down to Washington, D.C.

on January 6, 2021 to stop the steal.

That's right.

And as a reward for his patriotism and bravery, he was eventually charged with, among other things, obstruction of an official proceeding based on the mere technicality, folks, that he was trying to obstruct an official proceeding

and succeeded.

Now,

his lawyers came up with a very lawyerly argument.

They said that based on some abstruse textual interpretation principles, the law against obstructing official proceedings only applies to tampering with evidence rather than obstruction of official proceedings generally.

And the Supreme Court, in a 63 decision written by John Roberts, agreed.

Peter's starting to wrap up these intros like Kevin Harlan, you know, in the Supreme Court.

Once we do court reform, I'm going to enter my Mike Breen era.

Bang.

There's a good Jackson decision.

I'm like, bang, bang.

Oh, my goodness.

This little case, this little date in history, January 6th, 2021.

You know, the law at issue, as we hop into the background here, the law that makes it a crime to obstruct an official proceeding, at least at the federal level, from another important time in American history, the Enron scandal.

That big old fraudulent corporation, if you remember her, you know, you can look it up.

Big company doing fraud.

And cooking the books.

Yeah, yeah.

Cooking those books.

Classic fraud.

Yeah.

That scandal prompted the passage of the Sarbanes-Oxley Act, also known as SOX, Sarbanes-Oxley Act in 2002, which, like I said, made it a federal crime to obstruct an official proceeding.

Now, how is that relevant to Enron and corporate fraud?

Well, in the Enron scandal,

what they were obstructing was a government investigation into that corporation's fraudulent conduct and fraudulent acts.

And how are they obstructing that investigation?

Well, executives and other employees at Enron were destroying their business records left and right, right?

Nobody can tell we cooked the books if we just burned the books.

We just got rid of the books.

So, yeah, this was made a crime under federal law.

It carries up to 20 years of prison.

Nearly 20 years later, from the passage of that act,

in comes Mr.

Joseph Fisher, retired, humble police officer from Pennsylvania.

IQ, 80.

Friends, none.

Grade level reading, three.

Divorce?

Probably.

Do we know whether he was divorced?

I don't.

I'd put money on it.

I'd put money on it.

Estrange children, two.

At least.

At least.

Yes.

Yes.

Anyways, Joseph Fisher, very much in Washington, D.C.

on January 6th.

Very much, according to video evidence, in the Capitol on January 6th.

Very much pushing people, very much yelling, very much, you know, taking part in chants towards the officers protecting the Capitol.

Chants like, take a knee

to the officers.

Stuff like that.

You know, that's what Joseph Fisher was up to.

And, you know, live streaming basically or taking photos the whole time.

All of the videos that I've seen of him, his hand is in the air like a dumb fuck with his cell phone, just recording all of it for memories.

Absolutely.

Fucking if shit.

I got to post this on Facebook.

So

for that conduct, among other things, Fisher was indicted on seven counts of criminal conduct, including things like disorderly conduct, there's unlawful parade or demonstration, assaulting or resisting an officer, and then this one, which is obstructing an official proceeding.

So the relevant part of Joseph Fisher's indictment reads: on or about January 6th, 2021, within the District of Columbia, Joseph Fisher attempted to and did corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress by entering and remaining in the United States Capitol without authority and committing an act of civil disorder.

So, to be clear, the official proceeding that Joseph Fisher and many other January 6th writers are accused of obstructing is the certification of votes, right?

Certification of electors at Congress.

So Joseph Fisher was indicted.

You know, the story of Joseph Fisher, he's had some issues while he's been out of custody waiting for his appeals and waiting for these criminal proceedings to go through.

Maybe some light threatening of public officials in his locale.

Just going going nuts on Facebook, huh?

That's exactly right.

Normal January 6th rioters.

Power for the course.

Least deranged January 6th rioter.

So in terms of what Joseph Fisher is charged with, like we said, seven different counts of criminal conduct.

But this one, this one, his lawyers are saying, wait a minute.

That law

applies only to tampering with evidence in order to hamper or obstruct an official proceeding.

It's not just general conduct that is obstructing an official proceeding.

So he can't be found guilty of this crime.

So that's how we get to the Supreme Court.

So this case, unfortunately, is about statutory interpretation, which means we will be looking at the words of the statute itself, and then we will glean from the brain of God what it means.

I love statutory interpretation.

All right, calm down.

So the Sarbanes-Oxley Act of 2002 imposes criminal liability on anyone who, quote, alters, destroys, mutilates, or conceals a record, document, or other object with the intent to impair the object's integrity or availability for use in an official proceeding.

And then the law goes on and imposes liability on anyone who, quote, otherwise obstructs, influences, or impedes an official proceeding.

Fisher was charged under this law because while he did not alter or destroy any documents, he obstructed or impeded an official proceeding on January 6th when he stormed the Capitol with his little braindead buddies.

No one really contests that the counting of the electoral votes is an official proceeding or even that Fisher was part of the mob that helped impede it.

So

open and shut, right?

Not to John Roberts.

My man did obstruct an official proceeding, which is what's criminalized by the law.

So John Roberts says it's more complicated than that.

The law lays out all these things you can't do, and they all revolve around tampering with documents, right?

You cannot alter, destroy, mutilate, or conceal a record or document.

And then the law says, or otherwise obstruct, influence, or impede any official proceeding.

So if you read it literally, Someone who obstructs an official proceeding like Fisher did would be guilty.

But Roberts says the line about obstructing an official proceeding needs to be read in the context of the first line, which is all about documents.

So he basically says, look, this law is really about documents.

It's about tampering with evidence.

It's not about things like storming the Capitol and obstructing a proceeding by force.

So maybe he's off the hook, right?

So this is predicated in some principles of statutory interpretation that we've talked about before, where basically you read these catch-all provisions in the context of whatever came before it.

Roberts gives this example.

He says, quote, for instance, a football league might adopt a rule that players must not, quote, grab, twist, or pull a face mask, helmet, or other equipment with the intent to injure a player or otherwise attack, assault, or harm any player.

If a linebacker shouts insults at the quarterback and hurts his feelings, has the linebacker nonetheless followed the rule?

Of course he has.

The examples of prohibited actions all concern dangerous physical conduct that might inflict bodily harm.

Trash talk is simply not of that kind.

I have a lot of thoughts about this set of

pleasure.

Please, go on.

So

it doesn't work on like any level, like

any level.

So

first of all, I want to make clear something, which is the part of the law that is about spoiling documents, spoliation is the legal term, you know, destroying, mutilating whatever documents, that is demarcated, you know, subsection C1.

And it ends.

And then at the end of, it says or.

And then there's an entirely new subsection C2.

that says otherwise obstructs blah, blah, blah, blah, blah.

This is not the normal structure of a list of particulars followed by a vague catch-all.

This is the normal structure of two different offenses within the same statute.

That's what this is structured like is here's one offense spoiling documents.

Here's another offense

otherwise obstructing a proceeding, right?

That's very basic.

Roberts starts with a metaphor where he's like, well, what if they are the same provision, though?

What if we just write an NFL rule and it only has one provision?

Well, wouldn't that obviously work in my favor?

Well, yeah, that's not how the law is structured, though.

Yeah.

That's not the worst part.

The other part of it is the riot's not really analogous to insulting the quarterback.

It's analogous to pulling out a gun and shooting the quarterback in the head.

That's right.

That's the thing, is one of these things is drastically worse than the other.

And the other, like, the conduct that Sarbanes-Oxley was concerned about specifically was what happened happened in the Enron scandal, right?

This is how laws tend to work.

They're reacting to something specific.

So they're like, all right, all this document stuff.

Can't tamper with documents, can't mutilate documents, whatever.

And then they pause for a second and they're like, well, what if someone thinks of some creative way

to obstruct an official proceeding that we haven't thought of and put down here?

Let's create a catch-all provision that encapsulates that, right?

Right.

Perfectly sensible way to write a law.

And then this guy obstructs an official proceeding in a much more dramatic,

dangerous, violent way, right?

Right.

Yeah.

And Roberts analogizes that to a linebacker shouting at a quarterback.

Also, what is this rule supposed to be?

He's creating a football rule where you can't assault or harm any player.

Have you ever watched football?

You fucking morons?

It's so stupid.

It's so stupid on its own terms.

It's a terrible analogy to the law.

It's a terrible analogy to the conduct.

It's awful.

Yeah, sometimes this sort of contextual analysis makes sense, but the problem is that it's really just not a good reading of this particular law.

The law basically says you can't tamper with evidence or otherwise obstruct an official proceeding.

And John Roberts wants to rewrite it to say you can't tamper with evidence in an official proceeding or things of that nature, right?

He wants the law to say that, and it just doesn't.

And there's not a lot of reason to think that that's what Congress wanted it to say, you know?

He tries to rely on these canons of textual interpretation, but the reason those exist generally is to interpret vague or ambiguous laws.

This one's not very vague.

It's pretty simple, pretty clear.

And Roberts talks about the Enron shit and is basically like, look, Congress was trying to address something specific, right?

Not create a broad law that would cover all sorts of conduct.

They were talking about Enron style fraud.

But what's so frustrating about this is like, part of the reason that Congress adds in these catch-all provisions is that because they never know what new ways someone might come up with to obstruct an official proceeding or whatever.

So they add a line saying, hey, these are specific things we are worried about.

But if someone gets creative and tries something else, that's going to be illegal too, right?

So yes, it's true that when Congress wrote Sarbanes-Oxley, they weren't exactly envisioning January 6th, but that's why the catch-all provision exists, so that you can't just come up with creative ways to obstruct official proceedings.

That's the whole point of it.

Right.

That's the point.

You sort of bring yourself to this absurd place where it's like, if you want to obstruct an official proceeding, don't tamper with documents.

Blow up the building.

Like that's

like that's,

I just don't quite get it.

And I think this is an example of one of those areas where these catch-all provisions can actually be useful

because

very unprecedented things occasionally happen.

And you're going to want the law to apply to them and not have to just always do this retrospective thing where you're like, well, these guys just did this thing.

Let's write a law about that in case it ever happens again, right?

But it won't.

Something new is going to happen.

That's how history works.

That's right.

The last argument I want to mention that Roberts makes is that he says, like, if any obstruction of an official proceeding is illegal, that might include lobbyists and activists and peaceful protests.

But like, that's just not true because the statute also requires that the obstruction be done with corrupt intent, needs to be done corruptly.

So, like, legal and non-corrupt protests or even lobbying would not be covered, right?

The dissent makes this point, but I think it's worth mentioning here.

Like, when one subsection of the law does not have a state of mind requirement,

and then the other subsection of the law does have a state of mind requirement, that again points to them being two separate offenses that aren't related to one another, not

one

coherent offense that is like limited to evidence tampering.

Yeah, it cuts precisely against that point.

Like either spoiling documents, whatever, you spoil documents, you're guilty, or if you corruptly obstruct a proceeding, you're guilty.

Those are separate things with separate mens rea requirements.

Like they're, it's not one list.

As much as you want it to be just one list, it's not, it's not one list.

Like it's not structured this way.

It's not written that way.

The elements of it are not the same.

Like it's just,

it's just not.

I think that's pretty convincing to me, Michael.

You know, there's like a clear counter argument to the idea that like, okay, they had to leave a generalist provision because

what if you obstruct an official proceeding by blowing up the building, right?

Well, the obvious clear counter argument is that blowing up the building is another crime entirely, and you don't need the like mensrea of it's done to obstruct the official proceeding, right?

Or you don't need the motive.

And that's what Justice Jackson is getting at in her concurrence.

So, noting here, this is a six to three decision, but it's not all six conservatives in the majority.

It's not all three liberals in the dissent.

That is because Amy Coney Barrett dissented, and

Jackson, Katachi Brown Jackson, joined in the majority and wrote a separate concurrence.

So she agrees with the majority that the general obstruction crime that's included in the statute in SOX is limited to the list of crimes preceding it, right?

The list of basically spoliation of documents, whether you're, you know, changing a document or destroying a document or whatever.

And for her, she comes to that conclusion because it's clear from the legislative intent.

So first of all, she gives the context of, look, this statute was written in response to the Enron scandal.

This was about Congress responding to corporate fraud and how corporations and executives at corporations were hindering government proceedings, i.e.

investigations, by

fucking with documents, right?

By tampering with evidence.

And that's what Congress was responding to.

And so all of the provisions here, including the general sort of obstruction crime that's included, they all kind of have to do with tampering of evidence to Jackson.

And she's looking at congressional intent and the purpose of this statute, like throughout her concurrence, which is not really what the majority does.

That's why I think this is a concurrence.

And she doesn't just join the majority wholesale.

She's saying, no, we have to look at legislative intent too.

And conservatives in general are like, we don't care what legislative intent is.

We just look at the text of the statute.

And it doesn't really matter what Congress meant to do because if they meant to do something, they would include it in the language of the statute, right?

You know, so Jackson is looking at kind of like statutory history too and saying like Congress before this

never passed like this kind of broad obstruction law where others have long existed.

States have general obstruction laws that don't have to do with tampering of evidence, that kind of thing.

And so Jackson is saying, I don't think that Congress would have intended for this to be really kind of like a first of its kind, broad general obstruction crime, and that Congress would have just created that as like the last subsection of this broader sort of tampering with evidence law.

She points out that, like, the state laws that are about general obstruction crimes, those are generally misdemeanors, whereas this law that Congress was creating in 2001 carries a possible sentence of 20 years.

They obviously meant to create something new and maybe different that would carry a very serious possible penalty.

And so Jackson's just like looking at all of this and saying, yeah, I don't actually think that there was supposed to be this kind of catch-all general provision at the end of this that just applies to any obstruction when we have general obstruction laws elsewhere that don't carry such a serious penalty.

And this law specifically in Jackson's analysis seems to come out of be sort of specific to the situation that like Enron presented, meaning a situation where people were illegally tampering with evidence in order to obstruct official proceedings, right?

I want to make a couple of points, but first of all, I do think Jackson's got the worst of it here.

I think that this is all relatively

abstract when you compare it to the language of the law, which is pretty clear.

I will give her some credit, though.

I think that she is maybe the only justice here who is like searching for a real principle, or at least going out of her way to be principled, because this whole case is a flip of the way that these cases usually fall.

Usually, generally speaking, it is the libs being like, we should read this in the broader context of the law, of what Congress was trying to do, et cetera.

Give criminal defendants the benefit of the doubt.

Yeah.

And it's the conservatives going the other way, being like, no, no, no, like Congress is sort of stuck with the words that it wrote, right?

Yeah.

So Jackson is trying to be like, I am.

a person of actual principle and this is the principle, right?

Yeah.

I don't think it works for me because I just don't think the principle is that compelling in this particular instance with this particular law.

But I think there's probably some credit here to be given.

Or perhaps she's just a sucker.

I don't know.

It's hard to tell.

Yeah, I don't think she's a sucker.

I think, I mean, I think this is like reasoned through pretty well.

I mean, it's better than Roberts' majority.

100%.

I think she's the only one

in probably multiple terms attempting to do a principled and actually thorough statutory interpretation analysis, like textual analysis, purposivist analysis, right?

Like really sort of trying to incorporate everything that you're supposed to incorporate when you are interpreting a law.

And I'm pretty sympathetic to this.

I think like I could be convinced of Jackson's argument here.

I'm not all the way.

And that's because I don't think

all of this actually can be reasoned down to like principled analyses in all of these situations.

And because in reality, what actually happens is every single one of these laws is interpreted politically.

And every single one of these laws by conservatives, usually for a criminal law, is interpreted incredibly broadly to include all manner of conduct, all manner of behaviors, right?

That they say can just be swept in in general to these general provisions that are tacked on to the end of criminal statutes, right?

And so, Jackson, to be taking a stand on this one, it's like, yeah, I'm with you, but also like, it's just not how it works.

And in every other case, we include all kinds of behavior to sort of be encompassed by these general provisions at the end of criminal laws.

The last thing I'll say about the concurrence, I think this just comes from Justice Jackson's like, she really believes that like, if a law is poorly written or wrongly interpreted, Anybody could be made a victim of that law, whether it's somebody you agree with or somebody you don't agree with, right?

She talks in the concurrence about how like January 6th 6th was a mob of rioters.

They harmed the country, right?

They harmed democracy.

It's not like a behavior she agrees with, right?

Whereas the conservatives do.

So, like, she really is like trying to do this principled thing because she believes you could be made a victim of a law that is wrongly interpreted in these ways, right?

On the other hand, though, conservatives view themselves as the only possible victims of a misapplied or misinterpreted criminal law because they're the protagonists,

they were there on January 6th, trying to whatever, save the fucking country or whatever, trying to impose a dictator.

And criminal laws used to charge them for that behavior is their victimization and they have to be saved from that.

And so I think that's where things come down in this case in terms of Jackson joining the conservatives.

I do want to add one thing.

There's a principle here, a liberal principle in practice that I don't think Jackson addresses very cleanly, which is that if you want a functioning government, Congress should not be made to answer for every perceived or perceptible gap in their laws because it forces Congress to constantly be scrambling to fill in those gaps.

Now,

That creates a tension because if you are liberal, you don't want overbroad criminal laws.

That can be addressed in other ways, in my view, but it's a real concern that, you know, every time Congress doesn't say exactly the right thing, courts can be like, well, this law doesn't apply, right?

In criminal laws, liberals might like that because it prevents the aggressive application of criminal laws to defendants, but criminal laws aren't the only types of laws.

There are laws that give administrative agencies authority, for example.

And in situations like that, you want to give Congress a little bit of grace in these situations.

And I think there's a pretty robust

case to be made from the left for those sorts of interpretations.

Yeah.

In academia, they call it that the court's role is sort of as Congress's faithful agent.

Like their job is to sort of understand what Congress was trying to do and

act appropriately, not their pedantic copywriter.

You know, like that's like which the hardcore textualists take this sort of pedantic copywriter perspective, not the faithful agent perspective, although they will claim they're being.

Yeah.

Now let's talk the dissent because I think Amy Coney Barrett talks about this stuff and I think she does in an interesting way.

You know, she leads with the text because it's pretty straightforward.

Like they did obstruct an official proceeding and that was their goal.

The proceeding was to count the electoral votes and they wanted to stop the count of the electoral votes because they knew it would be to

name Joe Biden as the president rather than Donald Trump and they didn't want that.

And so they tried to stop it.

And like we all know that.

We all know they were trying to obstruct an official proceeding and they did.

Sort of like the end

is her opening.

And I think she had some good counterpoints to Katanji.

She talks about the history and she and she makes the point like With Enron, one of the scandals was that there was conduct that Congress was surprised was not criminalized.

Congress discovered a loophole in the law, like a genuine instance of conduct they want criminalized, not being criminalized.

And Section C1 is them closing that loophole.

And C2 is them thinking ahead and being like, well, let's make sure there are no more loopholes, right?

Let's pass something broad.

I think that's a fair reading of the law.

This is the reason why I like statutory interpretation.

When people are doing it in good faith, reasonable people can disagree disagree and you learn a lot about how they think, about how they think about the law, about how they approach problems.

My take on Katanji Brown Jackson's concurrence is I personally think she's wrong, but she's wrong in a way I respect.

She's wrong coming from values I respect, from a point of view I respect, and working towards goals I respect.

And it doesn't really bother me.

I don't agree with it, but I learned a lot about her.

Everybody else seems to be doing something different, though, to be honest.

I don't think anybody else is really taking this in good faith.

I think the best way to read the other eight justices is, you know, Peter's intro sort of joked about this, but like, if somebody really did steal the presidency,

protesting and maybe even rioting are reasonable responses to that, right?

Like the counterfactual where,

you know, Republicans have control of both houses of Congress on January 6th, 2021, and telegraph in advance that they intend to just throw out the valid electoral votes of Georgia, Pennsylvania, Arizona, whatever, Michigan, and instead certify the fraudulent ones and make Donald Trump the president.

Yeah, people should be in the fucking streets and maybe they should be rioting.

Like that's a reasonable response.

What's so offensive is the idea that you could reasonably believe this election was stolen, right like how far up your own ass do you have to be like you either have to be like an oath keeper or three percenter or white supremacist who doesn't think this election being stolen has anything to do with vote totals it has everything to do with just like black people and women and hispanics shouldn't be allowed to vote right like or you're the type of person who

walks into a bathroom in the airport and sees a toilet with like a bunch of diarrhea and vomit in it And is like, I'm going to stick my face in that.

I'm going to fully submerge my head in the toilet of vomit and inhale it all into my lungs.

What is this metaphor?

That is how they encounter the news.

That is what they do with the news.

That's what you have to do to buy

it.

Donald Trump won the election.

That is, that is your news diet.

That is it.

That is it.

And I don't respect those people.

And I'm not sympathetic to them at all.

But I think the other eight justices, the way to understand them is, well, we are sympathetic to them because maybe they're doing some shit in Detroit.

I saw some videos of some poll workers or whatever, right?

That's what the conservatives are doing.

And so they're sympathetic.

And so they're reading this favorably to the defendants.

And the liberals are like, no, we live in fucking reality.

We don't fill our lungs with vomit and diarrhea.

We live in the real world and we know the election wasn't stolen.

And it's not okay to riot every time you don't get your way.

Yeah.

And that's what they're doing.

And, you know, one of the reasons you know that is because Sodomayora signed this to fucking Amy Cody Bear, who wrote a good dissent.

Don't get me wrong, but like, you're doing politics.

Everybody here is doing politics around January 6th, except, I think, Katanji Brown Jackson, who's doing her own shit.

You know, good for her.

I think that's exactly right.

That like...

The problem I have with the outcome being the outcome in this case is not that like

I'm mad at the way statutory interpretation was done, right?

Or that I agree much more strongly with the liberals and Amy Coney Barrett's dissent

over what

Jackson writes in her concurrence, right?

It's not really that to me.

It's more that the majority's reasoning, like the way the decision actually comes down, is so super political, is so clearly, like you're saying, Michael, written by people who

similarly to the people who inhale shit at the airport, believe that the election was stolen.

And so they think it would be ridiculous to be prosecuted for the actions that those people took, right?

And that, like, that's what's so offensive about this, you know?

Right.

You know, I think the majority probably has the worst of it on the argument about statutory interpretation, but I'm not very concerned with that in and of itself as much as I am concerned about the coddling of the participants in right-wing street violence.

So like, sorry to do this every episode, but fascism

is here.

Fascism and paramilitary violence are very closely intertwined.

There are scholars of fascism who believe that paramilitarism

is actually the core of fascism.

Like Michael Mann is a sociologist who defined fascism as, quote, the pursuit of a transcendent and cleansing nation statism through paramilitarism, meaning that the end goal is the authoritarian state, but the means is paramilitary action, organized street-level violence.

And in practice,

there's no end state.

The street-level violence is always present.

So January 6th is like maybe the most visceral example of this, but you also see it in how Trump signals to militant militant elements of his movement.

Like his comments about Charlottesville, the whole, you know, good people on both sides thing, his directives to the proud boys to stand by, his directions to his supporters to monitor polls.

And then there's like general Republican support for

really creepy, dangerous militant action.

Like, you guys remember in 2020, there was like a caravan of Trump supporters who surrounded a Biden campaign bus in Texas.

Ran it off the road.

Right.

Yeah.

Or if you think about like Minutemen at the border or Tom Cotton even writing that, you know, if pro-Palestine protesters, you know, shut down a bridge or something, you should get out of your car and beat them up, throw them over the side of the bridge, right?

Right.

Right.

The people who attacked the pro-Palestine encampment at, I think, UCLA for hours while cops just stood by and did nothing, didn't try to break up the violence.

Right-wing militias carrying arms into, I think, the Michigan state legislature and shutting down its capital over COVID restrictions in 2020.

Historically, it's a thing.

Like you can read about the Beer Hall Putsch, right?

And the run-up to Nazism in Germany, you know, post-World War I.

There's a million examples of this, but it's very present in American life.

historically with like the kkk

with fugitive slave patrols and now it is.

It's still, it's with us right now.

Yeah, I mean, you have like even like these individual level offenders like George Zimmerman and Daniel Panny, right?

Who get like widespread support on the right.

Kyle Rittenhouse.

Yeah, like Rittenhouse, all of these guys, right?

The ambient threat.

of this sort of violence is very important to fascism.

Yeah, we should mention the guy who ran over a protester in Texas and got convicted of murder, murder.

And then Abbott pardoned him, right?

Like the governor pardoned him.

Right.

And that's where like the courts and politicians come into it, right?

So you have this street violence, but also it's sort of like this ambient threat that lurks.

It's not just like government thugs cracking down, right?

It's their civilian allies who have been given permission.

to act in their stead.

And you don't want to get too dramatic about it.

This is, you know, a case about statutory interpretation, I suppose, at the end of of the day.

But cases like this are part of that permission structure, right?

This court is very willing to be nuanced and technical in a way they almost never are with criminal cases.

This is a country where for several years, the activist DeRay McKesson has been litigating charges against him because he organized a protest and then an officer was injured at the protest by someone else.

Right.

The Supreme Court declined review on that case this year.

The details of these cases are very different, but like a black man representing a leftist cause is currently being held responsible for something that happened at a protest he helped organize, while January 6th rioters are getting charges dropped on like little fucking technicalities.

That is part of a broader trend, and I think it's a very disconcerting one.

The last thing I want to say about this is that we talk about the legal frameworks and the political context.

But when it comes to the question of whether the 2020 election was stolen, the really important issue is that every single person who believes it is without exception a dog shit moron.

Yes.

The basis for the belief that the election was stolen is a handful of grainy security cam videos posted on Facebook with

like an all caps title that says election stolen proof, hashtag fraud, hashtag demon rats, hashtag 1776.

Right.

And

a bunch of people watched, you know, election workers doing their normal jobs, not really knowing what they were looking at, or watched people drop off ballots for like their friends or something.

And we are four years later, right?

Has there been successful litigation?

No.

Has anyone produced even a fraction of the thousands and thousands of fraudulent ballots that would have been necessary to steal the election?

Of course not.

It's fodder for weak brains, which is why something like two-thirds of all Republicans believe it, right?

That obviously includes Supreme Court justices, right?

But maybe even more importantly, even the ones who don't believe it are hanging out with Republicans who do.

They're all breathing the same stupid air.

And what is very plainly a stupid idea gets normalized in these circles, right?

And people who charge the Capitol looking to like murder a couple Democrats and radically alter the course of history

all of a sudden start to look like maybe irrational actors or at worst, slightly misguided people whose hearts were in the right place, right?

I think we would be remiss if we did not mention in a case like this that we are obviously being ruled over by complete fucking dullards.

And

people who believe one of the great dumb conspiracies of our time

are the most important lawyers in the country, just telling us all what the law is.

All right, folks, next week, premium episode, Joseph Biden, who

believe it or not, is still the president of the United States,

has proposed some Supreme Court reforms.

And we are going to take a look at them, talk about them.

Are they good?

Are they not good?

Are they good enough?

Are they not good enough?

These are the questions we are willing to answer only for our premium subscribers.

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Bye.

Bye, everybody.

Au revoir.

5-4 is presented by Prologue Projects.

This episode was produced by Lena Richards.

Leon NAFOC and Andrew Parsons provide editorial support, and our researcher is Jonathan DeBura.

Our website was designed by Peter Murphy.

Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

You should contact Jay Will as he posts about his enemies, the raccoons, all the time.

That's the thing, is you never beat raccoons.

You just lose your mind.

Like poor Jay, just posting increasingly unhinged things about his raccoons.