Defense Asks for Mistrial in Jan. 6 Case of Man Who Put Feet on Desk in Pelosi’s Office
Challenge to central obstruction of Congress charge comes as jury begins deliberations
As a federal jury in Washington D.C. began deliberating his fate on eight Jan. 6 criminal charges, defendant Richard “Bigo” Barnett filed a motion for a mistrial on Jan. 20, arguing that prosecutors charged him with obstructing a non-existent proceeding because Congress has no role under the law to “certify” results of a presidential election.
Barnett, 62, of Gravette, Arkansas, is on trial for his alleged actions inside the U.S. Capitol. He became one of the faces of Jan. 6 when a photograph of him with his foot on a desk in the office of then-House Speaker Nancy Pelosi (D-Calif.) went viral.
Barnett is charged with four felonies and four misdemeanors, ranging from obstruction of an official proceeding and civil disorder to attempting to obstruct a police officer and entering a restricted building with a dangerous or deadly weapon.
Barnett carried with him a 950,000-volt “Hike ’n Strike” walking stick that doubles as a flashlight and stun device. He said the stun function was not operable on Jan. 6.
‘Non-Existent Proceeding’
In a filing with U.S. District Judge Christopher Cooper, Barnett’s lawyers argued that federal prosecutors misled the jury about how the Twelfth Amendment to the U.S. Constitution and Chapter 3 of U.S. Code apply to the case against Barnett.
“The indictment charged, and the government prosecuted, obstruction of a non-existent proceeding,” the motion said. “No crime can have occurred.”
On Dec. 22, 2022, prosecutors issued a superseding indictment against Barnett, alleging he obstructed “Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.”
The motion for mistrial says neither the Constitution nor applicable federal law mentions certification as part of Congress’s role.
“…All Congress does is watch the vice president open certificates and tally the vote — where states already certified the vote count,” the motion said. “There may be an objection and debate, where unless both House and Senate agree on the objection, the votes are counted. There is no written or oral certification by Congress as part of the law.”
According to trial testimony, Barnett entered the Capitol at 2:43 p.m. on Jan. 6 as a crowd surged through the giant Columbus Doors on the east side of the building.
Barnett testified that he had no intention of going inside the Capitol but was pushed in by crowd momentum. Both houses of Congress had stopped work by this time as members were being moved to safety.
Barnett ended up in the House Speaker’s office, where he leaned back in a chair and put his foot up on the desk belonging to Pelosi aide Emily Berret.
He posed for news photographers. He took an envelope from Berret’s desk and got blood on it from a cut on his hand. He kept the envelope, leading to a charge of theft of government property. He left a quarter on the desk that he said was to pay for the envelope.
On his way out of the Capitol, Barnett realized he left his U.S. flag in Pelosi’s office and got into a verbal confrontation with a Capitol Police officer when he wanted to go retrieve it. His language ranged from bargaining with the officer to foul-mouthed bluster. Prosecutors said Barnett was threatening the officer, while the defense said it was a short-lived “temper tantrum” in which “he’s behaving like an idiot, like a fool.”
The statute used to prosecute Barnett and many other Jan. 6 defendants for obstruction of Congress—18 U.S.C. § 1512(c)(2)—is controversial. Two District of Columbia judges have tossed out the same count, saying the law could not be applied to deliberations of Congress. Many other D.C. judges have upheld its use in Jan. 6 cases.
The cases of dismissed obstruction-of-Congress charges were combined into one case before the U.S. Court of Appeals for the District of Columbia. Oral arguments in the appeals case were held in December 2022.
Before the start of Barnett’s trial, Judge Cooper denied a motion to dismiss the Section 1512(c)(2) obstruction charge, ruling that “a count of electoral votes is the same as ‘Congress’s certification of the electoral vote count,’” the motion said.
Citing a ruling from the U.S. Court of Appeals for the Ninth Circuit, the motion said the plain language of the statute shows “an offense under § 1512(c) does not prohibit the obstruction of every governmental function; it only prohibits the obstruction of proceedings such as a hearing that takes place before a tribunal.”
Barnett’s attorneys said Judge Cooper was legislating from the bench, arguing he “rewrote the U.S. Constitution and 3 U.S.C. §§ 15-18 by saying counting equals certifying when it comes to a Congressional proceeding.
Writing Law From the Bench?
“The argument that a ceremony equals a proceeding is already deficient, but that provides no excuse to write law from the bench or in the offices of the Department of Justice,” the motion said. “There is no dictionary that makes ‘counting’ a synonym with ‘certifying.’”
The case went to the jury late on Jan. 20. Deliberations will resume on Jan. 23.
Barnett took the stand in his own defense on the final day of testimony. He was pressed repeatedly on cross-examination by Assistant U.S. Attorney Michael Gordon, who suggested he wasn’t being truthful in his answers. Barnett’s retort was spirited.
“You want to keep pressing me and break me down,” Barnett said. “I ain’t breaking down. I stand by what I say, sir.
“I’ve made mistakes. I have made mistakes. And I regret those mistakes,” he said. ‘I’ve gotten confused in my testimony. I went through hell up there. The officers went through hell up there. It was a horrible, horrible day.”
Barnett several times mentioned brain injuries he suffered as a firefighter and from beatings he said he took at the hands of guards while held in the District of Columbia jail. The injuries affect his memory, he said. Barnett told his story of physical abuse in pretrial detention in the “Patriot Purge” documentary. “I’ve been slammed face first into the concrete,” Barnett said at the time.
“I do the best I can. You can see how confused I get sometimes,” Barnett told Gordon. “I am struggling with this. But I am not going to go back on what I believe.
“…But I’m not going to let you put words in my mouth that I thought I was breaking the law or this, that, or the other,” he said. “That’s what your job is. I understand that. But I’m getting quite tired of it. I’m doing the best I can.”
During closing arguments, Gordon ridiculed Barnett’s testimony and explanations for his actions on Jan. 6. He said the defendant impeded the business that should have been conducted by Emily Berret and others that day in the speaker’s office.
“She couldn’t do any of that,” Gordon said. “His presence sitting at her desk with his feet up, bleeding on and stealing her stuff, impeded government business, Emily Berret’s work, and the work of everybody in Speaker Pelosi’s office.”
Not About a Photograph
Gordon said the prosecution of Barnett had nothing to do with the now-famous photograph of him with his feet on Berret’s desk.
“We’re not here for the photograph. We’re here because the defendant committed eight crimes on January 6th, and the evidence has proven each of them beyond a reasonable doubt.
“…He thinks it’s all going to be okay because he’s Bigo. He’s going to escape consequences,” Gordon said. “He will not because you, the jury, I expect will go back, and you will come to the only conclusion supported by the law and evidence, and that is that this defendant is guilty of everything.”
Defense attorney Joseph McBride tore into prosecutors for overcharging Barnett and blowing his behavior way out of proportion. He urged the jury to separate any feelings they might have about Barnett the man.
“You don’t have to like what he did,” McBride said. “You can even hate what he did. But you cannot convict him because you don’t like what he did, what he looks like or what he stands for.”
McBride said the government’s classification of Barnett as a “Tier 1 terrorist” shows how overboard the prosecution has gone. “Ladies and gentlemen of the jury, this is the government that our forefathers warned us about,” he said.
McBride wondered aloud what is it about his client that caused the Department of Justice to focus so heavily on him.
“Well, whatever it is, there is something about Mr. Barnett that renders him suspicious,” McBride said. “He’s so loathsome, so repugnant to the United States government that it has indicted him on eight charges.
“They have literally made a federal case out of an act of stupidity that could have been dispensed with a ticket and a fine,” McBride said.
