Horowitz: J6 defendant convicted of charge that same DC court celebrates overturning during Vietnam War protests

If you want evidence that January 6 defendants are all being punished based on their beliefs, not on what they actually did, nothing demonstrates the hypocrisy of the D.C. district court more than the exhibit displayed in the lobby headed toward the court’s own cafeteria.

Richard Barnett, the Arkansas man famously pictured with his feet up on Nancy Pelosi’s desk that fateful day, was convicted on Monday of four felonies and four misdemeanors by a jury that took only one hour to deliberate. The felony charges were not for touching Pelosi’s desk, but for vague actions like “obstructing an official proceeding” (Title 18, United States Code, Sections 1512( c )(2) and 2)) and obstructing law enforcement during a civil disorder (18 U.S.C. 231(a)(3)). Barnett was never even charged with committing a single act of violence, a point ceded by the Justice Department long ago. He also couldn’t have obstructed the official proceeding, because he didn’t enter the Capitol until after the proceedings were over. Yet he now faces up to 20 years in prison, pending his sentencing in May.

One of the major felonies is the 231(a)(3) charge of obstructing an officer during a civil disorder. As I noted earlier this month, this statute at face value is unconstitutional because it ropes in protected assembly, speech, and protesting. Anyone caught talking to a cop during the course of a protest where someone might be charged for a crime could be on the hook for 231(a)(3), as was the case with Barnett. For years, in order to justify the constitutionality of this statute, federal courts have only applied it to individuals who were committing acts of violence. In 1976, the Eighth Circuit Court of Appeals (in United States v. Casper) established a sensible standard defining the scope of the crime as “the Defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers.”

Nobody has ever been charged with this felony without committing a violent act himself, even in the worst BLM/Antifa riots with widespread beating, looting, arson, and assaults on cops. This argument was made by Barnett’s attorneys, Joe McBride, Jon Gross, Brad Geyer, and Carol Stewart, in a motion to dismiss. Yet in what has become standard in J6 cases, Judge Christopher Cooper sidelined all the legal norms and dug up a case from 1971 in a very different era, in which one defendant was hit with 231(a) without having committed a violent act. Judge Cooper cited in his opinion on the motion the case of famous Vietnam War protester Abbie Hoffman, who was charged under section 231(a)(3) for erecting a barricade to obstruct police during the 1971 May Day protests as precedent for plowing forward with this charge against Barnett.

Mind you, Barnett is not accused of anything as proactive as obstructing a barricade, but nonetheless, Cooper therefore concluded, “The Court thus declines Barnett’s invitation to adopt the Eighth Circuit’s apparent reading of the statute to require obstruction of an officer ‘in a violent manner.’”

The notion that we would revert to a premodern legal era of civil liberties jurisprudence is absurd and would never be applied to anyone else, certainly not to any protester on the left. But the biggest irony of all accentuating this two-tiered justice system is how Judge Cooper could shamelessly bring up Abbie Hoffman as a dangerous exception to free speech protections when an exhibit in this very courthouse – the E. Barrett Prettyman Federal Courthouse – lists among the court’s accomplishments that it overturned this very precedent that led to such convictions!

In a follow-up motion to dismiss following the final jury instructions before the close of the trial on January 19, Barnett’s lawyers noted the following:

In the lobby on the way to the cafeteria of the Court House on Constitutional Avenue, where this very trial and the trial for hundreds, and soon to be thousands of January 6 defendants is being held, there is a public display featuring several large exhibits that highlight the great achievements of this august Court. One of the exhibits is dedicated the “The First Amendment.”

The Exhibit states:

The Mayday Protestors 1971-1981

To show their disagreement with the war effort in Vietnam, thousands of protestors filled the streets. Between April 22 and May 6, 1971, the police arrested 14,517 persons typically on charges of disorderly conduct. The government held more than 1,500 of these protestors at the Washington Coliseum. Of those charged, 871 proceeded to full trial on the merits. The Court of Appeals eventually ordered the District Court to enjoin prosecutions not supported by specific evidence – the vast majority of cases. The District Court later ordered that the arrest records of the thousands of protestors be expunged. In 1976, a class action lawsuit was filed on behalf of 1,200 arrested protestors against former Attorney General John Mitchell, former Capitol Police Chief James Powell, the District of Columbia, and others, alleging that the officials violated their First Amendment rights. In 1981, the parties settled.

Exhibit in the lobby of the Court House on the way to the cafeteria.

The judge denied the motion and this particular argument orally without argument … and without shame.

So there you have it! The judge found a way to lock someone up for exercising his First Amendment rights based on precedent of a single case, which this very court views as an abomination and therefore has celebrated moving on from that case’s era. What’s next? A citation and invocation of Plessy v. Ferguson? As Barnett’s lawyers write, “The Country thought it was past the days when protestors like Abbie Hoffman were arrested, not for their conduct, but for their views.”

And as we await another 1,000 indictments of people who never committed a violent act and likely never even purposely entered the Capitol, this is what it’s all about. It’s not about the law. It’s about your political views that they detest. In their minds – under their perverted view of law and justice – there is no contradiction in application of law. They agreed with the Vietnam War protesters, so they will naturally celebrate overturning those convictions. But they believe Trump supporters don’t deserve the same due process and will use the same precedents they abhorred against them, even if it means they spend more time in prison than the most violent rioters ever. This is why, as Barnett faces up to 20 years, the people who burned down the Minneapolis police station only got a few years.

Amid all the unimagineable violence and damage of BLM, I was recently wondering if I could find the longest sentence meted out for even the worst offender. The best I can find is Montez Terriel Lee, 26, of Rochester, Minnesota, who was sentenced to ten years in prison for burning down a pawn shop and killing a person in it on May 28, 2020. Lee was caught on camera pouring accelerant around the shop before igniting it, and a second video showed him saying, “[Expletive] this place. We’re gonna burn this [expletive] down.”

Here’s the kicker: Even though the sentencing guidelines would have kept Lee behind bars, the U.S. attorney from Minnesota filed a sentencing memorandum asking for only 10 years, asserting that Lee “does not appear to pose a danger to the public,” because he did this out of the goodness of his heart on behalf of the sainted BLM movement. As Sen. Tom Cotton noted in a protest letter to Attorney General Merrick Garland, Lee was a career violent criminal who even ruptured his girlfriend’s eardrum in a violent attack. Now contrast that to the J6 offenders, who clearly never posed a danger to the public, never had a criminal record, and almost all of them did not act violently or nearly as violently as even the lowest-level BLM rioter on display last weekend in Atlanta. How many of the Atlanta rioters will be held pretrial for months and then sentenced to 20 years for exponentially worse crimes?