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DOJ Dusts Off Civil War-Era Statute to Replace 1512(c)(2)

 Obsessed with targeting Trump supporters, the DOJ is now charging multiple defendants with a Civil War-era statute-18 U.S.C. 372-which punishes those who intimidate "Officers of the United States" from their posts.

Title 18 U.S.C. 372 punishes conspiracies "To prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed[.]" The DOJ's position is that Members of Congress hold the "Offices" and are the "Officers of the United States" that are covered by Section 372 and, accordingly, that J6ers can be prosecuted for allegedly causing their evacuation from Capitol Hill.

A Member of Congress does not receive a "Commission" because he or she, unlike federal judges, executive branch appointees, and military officers, is not an "Officer of the United States" and does not hold an "Office, trust, or place confidence."

In court filings, the DOJ has not disputed that, under the Constitution, Members of Congress are not "Officers of the United States." Instead, the DOJ argues that the 1861 Congress that enacted Section 372 used the term "Officer of the United States" in a sense broader than the technical, constitutional definition.

Binding Supreme Court precedent from the 19th century holds that, when used in federal criminal statutes, the terms "Office," "Officer," and "Officer of the United States," absent unambiguous language to the contrary, refer to individuals who received positions via the Appointments Clause of the Constitution.

In one of those cases decided in 1878, United States v. Germaine, a surgeon hired by the Commissioner of Pensions was indicted for extortion while serving as, in the words of the statute, an "Officer of the United States." Arguing for the indictment's dismissal, the surgeon argued that because he was not appointed to his position pursuant to the Appointments Clause, he could not be convicted of violating a statute, which applied only to "Officers of the United States." The Supreme Court agreed, ruling that absent unambiguous language to the contrary, the term "Officer of the United States," when used in criminal statutes, is limited to individuals appointed pursuant to the Appointments Clause.

This statute punishes conspiracies aimed at preventing individuals "From accepting or holding any office, trust, or place of confidence under the United States[.]" Members of Congress, obviously, do not "Accept" their positions-instead, they assume or take office.

https://www.declassified.live/p/guest-column-doj-dusts-off-civil 

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