Anti-Textualism, Hostages, and Asymetric Partisan Dishonesty, Part One

In his column yesterday, Professor Dorf summarized and critiqued the oral argument in Fischer v. US, aka the "SCOTUS Insurrectionist Case." He ominously concluded that, based on the oral argument, there is strong reason to suspect that the Supreme Court's Republican appointees are planning to mangle statutory interpretation in a way that will result in many January 6 insurrectionists (and Donald Trump) having some or all of the charges against them invalidated.

I want to note here my agreement with Professor Dorf's larger takeaway from that hearing, which he summarized in concluding the column:

Fischer is a January 6 case with implications for the pending D.C. case against former President Trump.  [T]he Justices' partisan druthers, not their methodological or even ideological commitments, appear to be driving their dispositions towards the case. Is that surprising? More than two decades after the shock of Bush v. Gore, it shouldn't be--but somehow, even with what should be extraordinarily low expectations, this Court manages to disappoint. I hope to be proven wrong when the Court hands down a ruling in Fischer, but I'm not holding my breath."

Indeed.  I will add here that I was especially enraged that the Court's self-styled textualists and originalists seemed to take seriously a defense argument that completely turns the word "otherwise" on its head.  The statute in question (18 U.S.C. § 1512) says in (c)(1) that tampering with or destroying evidence (or attempting to do so) is a crime, while (c)(2) (which follows the word "or," not "and") specifies that a person who "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so," can also be sentenced to up to 20 years in prison.

Solicitor General Elizabeth Prelogar did a great job of explaining that "or otherwise" clearly means in some other way NOT involving evidence tampering, yet the hyper-conservative and pseudo-textualist bloc on the Court seemed willing to buy the defense's argument that (as summarized by Professor Dorf) "because (c)(2) begins with the word 'otherwise,' the only kinds of obstruction it covers must also involve evidence tampering of one sort or another."

Wtf?   Because (c)(2) begins with the word "otherwise"?  How in the world does "otherwise" possibly help the defense, much less mean the exact opposite of what it means?  Words like "similarly," or "in furtherance thereof," would surely give the statute a different meaning that ties (c)(2) to (c)(1)'s focus on evidence and "other object[s]."  But "otherwise obstructs …" has to mean "in some different way obstructs …" (that is, in some way other than trying to tamper with evidence, which has already been covered in the previous provision of the statute). 

The best the defense could say in response to Prelogar's argument is that the statute uses "otherwise" in the sense of some other way that also involves evidence but not via the means listed in (c)(1).  But why does (c)(2) have to have anything to do with evidence, merely because the preceding sentence was focused on evidence, such that a word's meaning is flipped?  Does "no" means "yes" in the sense that sometimes "no" appears in sentences before or after sentences in which "yes" appears?  Sure, why not?

Again, however, the Court's right-wingers seemed all too eager to say that words mean what they choose them to mean -- neither more nor less.

I recently wrote that we might be at "the point where one cannot tell whether a snide remark was made in a Twitter post, on a TV show, in House or Senate hearings, or in the Supreme Court itself. Will we hear Alito or his ideological colleagues sounding like Trump's media posts[?]" And sure enough, Alito led the way at the oral argument to push forward with Trump's gaslighting, saying that prosecuting violent insurrectionists will pave the way to prosecuting peaceful protesters -- just as Trump and his allies argue that the attack on Congress was "beautiful" and was just a bunch of patriots strolling through the Capitol.

Politicians will always try to get away with degrading and twisting the meanings of words, as George Orwell explained in "Politics and the English Language" and demonstrated in Animal Farm and Nineteen Eighty-Four.  But just because "all politicians do it" does not in any way mean that they all do it in the same way or that their degrees of dishonesty are even of the same order of magnitude.  Consider another shockingly malevolent abuse of language regarding the January 6 insurrectionists.  (Side note: I am being careful in my word choice here, choosing not to use the word "rioter" in favor of the more accurate descriptor "insurrectionist."  Is that Orwellian?  Of course not, because it rejects an inaccurate word that would make the miscreants' aim seem random and uncoordinated.)

In a world full of possible "most shocking" deceptions, my current pick as the champion of champions is to call the insurrectionists who are serving time in federal prisons "hostages."  Trump started to do that several months ago, and as night follows day, his cult followed him, with Rep. Elise Stefanik -- a member of the House's Republican leadership -- using the term openly and shamelessly.  The insurrectionists are not in prison because they have been duly convicted of crimes, you see, but instead have been taken hostage by the Biden Justice Department.

Usually, such Trumpy lies are nothing more than simply evidence-free assertions or full-on contradictions of the evidence.  Trump complained, for example, that the judge in his New York criminal trial denied Trump's request to attend his son's high school graduation, even though the judge did not do that (although he would be justified if he ultimately decides to do so).  Crime -- especially murder -- is going down, not up, in New York and most other places in the US, but Trump and his followers all insist that the opposite is true.  The Big Lie itself, after all, is simply an assertion against all evidence that the 2020 election was rigged, stolen, beset by "voting irregularities," blah blah blah.

What makes the "hostages" move fascinating, however, is that is even worse than the attempt to say that "otherwise" means the opposite of its true meaning, or any of the other denials of reality in TrumpWorld.  "Hostage" is not a synonym for "prisoner" or even "captive."  For someone to be a hostage, there has to be a hostage taker (or takers), there must be a reason for the taking, and crucially there must be something that the captors want that could result in the release of the hostages.

As it happens, Professor Dorf and I have used the term "hostage-taking" frequently over the last decade-plus in our (many, many, many) writings about the debt ceiling.  Indeed, in our most recent co-authored column discussing this issue last June, we described House Republicans as hostage-takers and talked about how President Biden should have responded to their attempts to extort concessions from him.  Crucially, we have always used that framing to describe Republicans' actions in the context of negotiations, that is, asking whether it is wise to negotiate with terrorists, and in any case what any such negotiations might involve.

Thus, Professor Dorf wrote this on February 6 of last year:

Raising the debt ceiling is necessary to avoid tanking the global economy and perhaps permanently undercutting the role of the dollar as the world's reserve currency.  And yet, even though McCarthy's position is unreasonable, to paraphrase Donald Rumsfeld, you don't negotiate with the House Speaker you wish you had but the one you have.  Just as hostage negotiators sometimes find themselves negotiating with hostage takers and U.S. diplomats sometimes negotiate with unsavory regimes, so too here, the administration must deal with McCarthy and his caucus of ideologues and imbeciles. What are the options?

Again, hostages are bargaining chips in negotiations, and even though it is sometimes unwise for the side that has been victimized to engage with the terrorists, doing so by definition involves give and take.  In the debt ceiling context, Republicans have had any number of "asks," including the weird "Boehner Rule" (which is not a rule) that said that federal spending must be reduced each year by one dollar for every one dollar increase in the debt ceiling.  Why not a two-to-one ratio?  Or ten?  In the 2023 debt ceiling episode, Republicans could not even articulate what their demands were, but they sure as shootin' seemed set on not releasing the hostage (that is, the global economy) until they had extracted concessions from the White House.

To state the obvious, the January 6 insurrectionists have not been taken hostage.  How do we know?  They were not innocent, sympathetic victims who suddenly found themselves being used against their will as items to barter in a big bazaar.  They were investigated, arrested, given full due process, and sentenced to prison.  How else do we know?  Neither Trump nor anyone else has ever even suggested that the Democrats are trying to extract concessions from Republicans in exchange for releasing the insurrectionists.

In other words, if Democrats were playing the role of terrorists, they would have a clear agenda and would have laid out a quid pro quo.  Trump thinks that all of the legal moves against him are "ELECTION INTERFERENCE" designed to keep him from returning to office.  If that were true, why would Democratic hostage-takers not say to Trump that they will release the convicted criminals if Trump agrees to drop out of the race and never run for President (or Vice President, or any other office) ever again?

It is one thing simply to deny reality, but this delusional framing of the situation is on a completely different level of dishonesty.  None of that means that either move is harmless, of course.  The Fischer defense's attempt -- amplified by Alito and others -- to redefine "otherwise" is actually worse than what the Republican-appointed justices did to the first thirteen words of the Second Amendment, because Heller merely ignored those words, whereas in Fischer the Alito faction might say that up is down (or that war is peace, freedom is slavery, and ignorance is strength).

Calling insurrectionists hostages, however, does more than put a negative sign in front of a word.  It completely changes the very nature of what is happening, turning criminal prosecutions into some weird version of the art of the deal.

Is there anything on the Democratic side of the aisle that even comes close to any of this?  No, as I will explain in some detail in Part Two of this column tomorrow.