Lawyer: Riot ruling poised to free Barnett

An attorney for Arkansas’ most famous Jan. 6 defendant said Richard “Bigo” Barnett may get out of prison if the U.S. Supreme Court rules that federal prosecutors went too far by bringing an obstruction charge against hundreds of defendants in the Capitol riot, including Barnett.

The Supreme Court heard oral arguments Tuesday in the case of Joseph W. Fischer, a former Pennsylvania police officer charged with entering the U.S. Capitol on Jan. 6, 2021, and assaulting police.

A decision in the case is expected before the Supreme Court’s term ends in June.

At issue is 18 U.S. Code §1512(c)(2), which deals with obstruction of an official proceeding — in this case Congress’ certifying of the 2020 presidential election vote.

Out of 1,387 total Capitol riot defendants, more than 353 of them have been charged under this obstruction provision.

Barnett, 63, of Gravette, was convicted on the obstruction charge and is currently serving a 54-month sentence in a prison near Dallas.

Barnett was also convicted on three other felonies and sentenced to 54 months on each one, with the four sentences to run concurrently along with four misdemeanor sentences.

Jonathan Gross, who was one of Barnett’s trial attorneys, said proportionally, the obstruction charge was the most serious one Barnett faced.

“The 1512 charge was 20 years,” Gross said in a text message, referring to the maximum sentence under 1512.

“The next highest charge was only five years,” he continued. “If he gets resentenced by the same proportion, he can go home based on his time already served.”

Barnett reported to a prison Aug. 1 in Louisiana and has since been moved to the Seagoville Federal Correctional Institution in Texas. He is currently scheduled to be released Nov. 29, 2026.

Barnett received credit for almost four months served in 2021 in the District of Columbia jail, and his projected release date also reflects the maximum of “good conduct” credit he can receive under the First Step Act of 2018.

After a two-week trial in January 2023, a federal court jury in Washington, D.C., found Barnett guilty on eight counts in connection with the Capitol riot. He faced enhanced charges for carrying a dangerous weapon — a stun gun — into the Capitol.

Barnett became somewhat famous after he posed for photos with his foot on a desk in House Speaker Nancy Pelosi’s office suite.

“For better or worse, you became one of the faces of Jan. 6, and I think you kind of enjoyed it,” U.S. District Judge Christopher R. Cooper told Barnett during his May 24 sentencing hearing.

Barnett has appealed his conviction. He has a public defender representing him on appeal.

Gross said the fallout will be substantial if the Supreme Court rules that the obstruction charge was unconstitutional as it applied to Jan. 6 defendants.

“Should that happen, it will open the flood gates to a multitude of different motions in hundreds of cases, and open the flood gates for a thousand civil cases or else a class action,” said Gross. “The fallout is impossible to predict, but will be substantial.”

At its core, the Fischer case is about the meaning of a provision of the Sarbanes-Oxley Act of 2002, Adam Liptak wrote for the New York Times.

“It was enacted following the collapse of Enron, a giant energy company, after the exposure of widespread accounting fraud and the destruction of documents by the company’s outside auditor,” Liptak stated.

At least part of what it meant to accomplish was to address a gap in the federal criminal code at the time: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself, wrote Liptak.

The law meant to close that gap. It did, in a two-part provision, Section 1512(c) of the federal criminal code:

“(c) Whoever corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

“The first part focuses on evidence, making it a felony to tamper with it to affect an official proceeding,” wrote Liptak. “The second part makes it a crime ‘otherwise’ to corruptly obstruct, influence or impede any official proceeding.

“The heart of this case is the pivot from the first part to the second part. The ordinary meaning of ‘otherwise,’ prosecutors say, is ‘in a different manner.’ That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence — in their view, making the second part a broad catchall for any kind of corrupt interference with an official proceeding.”

Lawyers for Fischer counter that the first part must inform and limit the second part — meaning that the obstruction of official proceedings must be linked to the destruction of evidence, wrote Liptak. They would read “otherwise” as “similarly.”

“The alternative, they say, would be to create a felony of breathtaking scope that would allow prosecutors to charge political protesters with felonies carrying 20-year prison sentences,” wrote Liptak.

In 2022, U.S. District Judge Carl J. Nichols granted Fischer’s motion to dismiss the Jan. 6 case against him, saying the government couldn’t use the second part of 1512(c) alone, and that the court “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding,” according to The Washington Post.

A divided three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols’ decision.

Three Jan. 6 defendants, including Fischer, asked the Supreme Court to decide whether the law had been properly applied to the Capitol attack.