On Jan. 6, the above image of Richard Barnett — the man who purportedly hoisted his feet on Nancy Pelosi’s desk — rocketed around the world’s media. Instantaneously, Barnett was depicted as personifying the insurrectionist fervor of that day, given his apparent willingness to desecrate the sacred adornments of the Capitol. But hold on a second. Did you know that the object in question was not, in fact, “Nancy Pelosi’s desk”? And did you know that Barnett posed for the infamous photo at the inducement of journalists who happened to be in his close proximity?
Those are the actual facts — at least according to Joseph McBride, a New York City defense attorney who represents Barnett. Make of these (alleged) details whatever you will, but they’re certainly worth taking into consideration if Barnett’s actions have informed your overall impression of everything that transpired on Jan. 6.
McBride, who previously worked with the Innocence Project, got his client out of pre-trial detention in April — which is more than can be said for other Jan. 6 defendants who remain locked up in a Washington, DC jail nearly seven months after the fact. In an interview, McBride told me, “What I can say, unequivocally, is that the facts of Richard Barnett’s case, the law regarding Richard Barnett’s case, is very much on our side.” If that statement seems surprising or counterintuitive to you — as it did, initially, to me — you will probably want to read the whole transcript below.
Besides representing Barnett, McBride is also calling attention to the “abhorrent” treatment of the many other Jan. 6 defendants still incarcerated. GOP members of Congress Matt Gaetz, Marjorie Taylor Greene, Paul Gosar, and Louie Gohmert recently attempted to inspect the conditions at the DC jail where they’re being housed, and were turned away — prompting a predictable round of ridicule from national media. But few naysaying pundits bothered to acknowledge the actual issue at hand: the conditions in the jail. According to McBride, “there was one case in particular where a detainee was beaten within an inch of his life, because he asked for toilet paper.” And that’s just the tip of the iceberg.
McBride has a decidedly different attitude toward his client’s predicament than the attorney representing another Jan. 6 defendant, Paul Hodgkins — who, as I documented, just pleaded guilty to a felony charge and was sentenced to eight months in prison, only to be accused in a backhanded manner by federal prosecutors of “taking part” in a terrorist attack.
McBride, for one, seems highly disinclined to submit to such an onerous plea arrangement. “If they are looking for a fight from us, which it appears that they are — well, then they're going to get one,” he declared.
“My client was pushed into the Capitol, into the building itself. I have that on video. Did he end up in Speaker Pelosi’s office? Sure he did. Is that worthy of 10 or 20 years in jail, and the stripping away of all his other rights? That’s madness.”
“The things that he’s been charged with are ridiculous,” McBride added. “And they’re gonna lose if they go in, and we go to trial. So if they want to take that loss, in front of the world, then so be it. I’ll be glad to give it to them.”
This interview, which was conducted on July 28, has been condensed and edited for clarity.
MT: I think the average person who maybe only has a cursory knowledge of Richard Barnett’s scenario, that they would hear you say the law is on your side and think to themselves, what is he talking about? The entire world has seen the photos of him sitting on that desk with his feet propped up. But as you’re trying to explain, that alone doesn’t necessarily constitute all the elements of guilt under the specific charges that have been leveled at him. Can you elaborate on why it is that his being pictured on that desk — which is beyond dispute — why that automatically doesn’t assure that he would be found guilty of the charges that he faces?
McBride: Because the charges that he is facing are trumped up felony charges. The toughest charge that we would have to deal with would be the entry into the Capitol — they’re calling it a violent entry. I call it a glorified trespass. But let’s talk about that. That’s the hardest charge objectively to beat — because there he is with his feet up on the desk, right? But it has to be a voluntary enter. You have to know what you’re doing. So if you were pushed into the Capitol, if you fell into the Capitol, if you slipped on a piece of ice and got shot into the Capitol, whatever it is, if you entered the Capitol any other way other than of your own volition, then there is reasonable doubt.
Now, once you get in, unless somebody tells you, “Hey, get the hell out of here” — then there is an argument that you’re allowed to be there. You look to the left, people are there, you look to the right, people are there. You know based on watching TV, and based on watching the news and based on participating in the political protests, that 200 or so Code Pink protesters were there two years ago, protesting against Justice Kavanaugh’s confirmation. And there have been multiple other times that people have entered the Capitol in protest and have not met criminal charges. [Note from MT: over 200 of the 2018 anti-Kavanaugh protesters were in fact arrested, although tended to be charged with less severe offenses.]
McBride: So you walk around for awhile, officers are talking to you, no one is telling you to leave. People are directing you left, and people are directing you right. At some point, people tell you to get the hell out. So you leave. That is not “violent entry.” That is an absolute defense to that crime. Because if you cross over into somebody’s place, and you’re not supposed to be there, if they don’t tell you to get out, then we start talking about doubt. We start talking about the facts, and the law applies to the facts. And unless each element of every crime charged is proven, then the case falls apart.
Now let's talk about Speaker Pelosi’s office. That is an area of multiple offices. The world thinks that his feet, Richard Barnett’s feet, were up on Speaker Pelosi's desk.
Wasn’t Speaker Pelosi’s desk.
Let people think what they want to think. But if you don’t know, let me tell you — was not Speaker Pelosi’s desk. So there’s that. When he gets there, the sign that’s above her office that says Speaker of the House, or whatever it says to identify the location, was removed — somebody before him took it for a souvenir. There is video of people breaking in and beating down that door, and breaking the glass and opening up the doors to that area. By the time Richard Barnett got to that area, the doors are wide open. No signage, no “Do Not Enter,” none of these things. He didn’t know where he was. He walked in. And there you have two reporters from the AFP, and someplace else.
They say, “Do you know where you’re at?” A conversation happens. “Do you want to take a picture?”
“Sure.” He sits down. The photographer tells him, “Act natural, don’t pose.” So he puts his hands back. He’s got a cell phone in his hand, so obviously it’s somebody else taking the picture.
They take a picture of him. He’s on national television an hour later, and the rest is history. So it wasn’t a violent situation. He wasn’t in there committing any heinous things. Should he have been there? No. Was he there? Yes. Is it explainable? Yes. Is it worth a discussion? Yes.
MT: So just to be clear, Richard Barnett, you’re saying, did not take that photo at his own direction? He did it because he was essentially induced by photographers who just happened to be in his close proximity?
McBride: Oh, yeah. That’s 100% true. There are photographers hanging out in the office, documenting the whole thing. And as when people went in — “Hey, how you doing?” Not only did he take the picture, the photographer said, “What’s your name? Where are you from? And how do you feel today?” He says, “My name is Richard Barnett, I’m from Gravette, Arkansas, I’m 60 years old, and I feel good.”
And he kept it moving. So this is not somebody who is actively trying to evade the law. This is not somebody who even believed that he was technically doing anything wrong.
MT: This also raises the issue of consciousness of guilt. Which isn’t, in all cases, a necessary prerequisite for guilt. But it’s potentially a mitigating factor, if Barnett and others were of the belief that this was a public building that’s ordinarily accessible to pedestrian traffic. And they weren’t being forcibly prevented from entering. And so that could cast doubt on his criminal intent, potentially. Is that an issue that you could see yourself raising?
McBride: Of course. Not only that, a lot of people believe that they had the right to be there, you know, part and parcel to the First Amendment of the Constitution, and lots of people who were there, they just — they walked around. You had other people who were there who obviously did different things. But my guy walked around.
MT: I've been following this off and on since it occurred. But my interest was reignited last week, when the sentencing hearing for this other defendant, Paul Hodgkins, took place — this was the first sentencing of a felony defendant, as you know. And what really struck me was how cavalierly the US Attorney who presided over that case, Mona Sedky, alleged in the sentencing hearing that while the Government could not prove beyond a reasonable doubt that Hodgkins engaged in any violence — they didn’t even allege violence, and they certainly couldn’t meet the the criteria to demonstrate that he violated any terrorism statutes.
But nonetheless, Sedky made the claim that Hodgkins operated within what she called the “context” of domestic terrorism, and that he was “part” of a terrorist event. And clearly that brands Hodgkins as effectively a terrorist even though again, the Government didn’t have to meet the due process hurdles of actually convicting him of a terrorism-related crime. So that struck me as a very ominous development for these Jan. 6 prosecutions, and maybe previews how the Government may try to similarly brand other defendants going forward, including those such as Hodgkins that the Government freely concedes engaged in no violent conduct.
McBride: It’s a good catch on your part. So when you are taking a plea, you’ve cut a deal. And you are sort of beholden to the Court and to the Government in that moment. Generally, the Government makes an accurate record of what has happened and then you plead for mercy from the Court.
The Government inappropriately, but very intentionally, used that as an opportunity to hit where it knew that the defendant could not possibly hit back — because if he did, he would come off as aggressive or breaking the terms of the plea, or unrepentant or whatever, and possibly get banged with more time. So having that knowledge, the Government used the opportunity to advance the narrative — the unjustified, illegal theory — that this was an act of terror. And while it said it couldn’t prove it, it laid out the framework and the foundation, because if you’re calling this guy a terrorist, what are you going to say to those who broke a window or pushed a cop? Or whatever they did. You’re damn certain they’re going to call those people actual terrorists, and they’re going to actually make the case for it.
The Federal Government has a disgusting habit of exaggerating, and straight up lying to the Court and to the public on a regular basis. Because the Federal Government, in particular the FBI and Department of Justice, have no check over it. There is no one to say, “Hey, you can’t do that.” They’re the biggest bully in the schoolyard — unless the case gets to the Supreme Court, they’re not going to get slapped down. They did this in my case with Richard Barnett. They created conditions of dangerousness and indicia of risk of flight where none exist.
They fabricated a story about his past, saying that he had a criminal past, when he in fact has no criminal past. They said that because one event happened — and somebody might have accused him of doing something else in the past — while not arising to the level of criminal conduct, is certainly indicative of somebody who’s dangerous.
The first Court did not buy that — it saw it as garbage and laughed. But the DC Court pulled him from Arkansas after being granted release, bought into those arguments hook line and sinker, and locked him up. And the rest is history. He did 108 days, in inhumane circumstances when he should’ve been home with his family the whole time.
This is Federal Government prosecution 101. And I am glad that you were able to see this for what it is because it gives me hope, as an attorney. I can see this from a mile away, but it gives me hope, as an attorney, that other people in the public will see this for what it is too, and will feel equally as concerned, or troubled, or bothered by it as you are on some level.
MT: What about this term insurrection, or insurrectionists, that gets bandied around constantly in the media? And even in Congress today, with one of these hearings that went on. The term, I think, has been purposefully employed to exaggerate the impact of Jan. 6, so people can have it lodged in their imaginations, that somehow the Government — meaning the United States Government, the most powerful Government in world history — was on the cusp of being overthrown or toppled, which is self-evidently preposterous.
It’s all the more incongruous because it’s applied to defendants, like your client, who aren’t even accused by the Government of committing any violence. Like, is there such a thing as a non-violent insurrectionist? It sounds like an oxymoron. It seems like the term has so polluted the political and even legal climate that it has to be contended with or rebutted in some way, but of course the Government has the convenience of not actually having to charge anyone with insurrection. They can just kind of benefit from the way it’s floating around in the ether like this, to heighten the supposed severity of the offenses that they're charging people with.
McBride: It’s troubling. It’s intentional. This is indicative of clear evidence of the relationship between the Federal Government and Big Tech and certain parts of the media.
We were talking about earlier, with the issue of bail — that they lie and stretch the truth and fabricate things to create indicia of flight, and conditions of dangerousness where none exist.
Now as to the overall theme of that day, they are labeling it an insurrection and calling every protester who went there an insurrectionist — despite the fact that the vast majority of people who went there had no prior knowledge of any violence or any type of entry that was going to take place. Despite the fact that no person charged in connection with the events of that day — over 500 people charged — nobody’s been charged with insurrection. If nobody has been charged with insurrection, what the hell are you using the term for?
You're using the term to invoke fear. You’re using the term the same way that the post-9/11 George Bush White House said, ‘these people are terrorists.’
It’s to invoke fear. Now the term insurrectionists says to people — look, there is a threat, a domestic threat at home... We have to watch these people, we have to report these people, and the ones who were there on Jan. 6, they should all be locked up because they’re insurrectionists.
This is a carefully designed ploy to provoke people’s emotions, to get people to go into a frenzy of anger and anxiety, and go down whatever rabbit hole they want to go down — and while doing so, forgo additional constitutional rights. What rights are we forgoing now? We’re forgoing the Constitution, the Bail Reform Act. We’re saying despite the fact that these people are American citizens, because they committed insurrection — “insurrection” in air quotes — they should be treated like terrorists. It is wrong, it is troubling. It should not be happening. It is purposeful, and it needs to stop.
So if you’re listening to this now, or if you’re reading about this, or if you have an opinion about that day — you do not have to like my client, or any of the lawyers who defend him. You do not have to approve. You can vehemently disapprove of the reasons why people went to the 6th that day. But what you cannot do is stand silent on the fact that these people are being unfairly scapegoated and called something that they’re not. And because of this, their constitutional and human rights are being violated on a daily basis.
MT: To the best of your knowledge, how many Jan. 6 defendants are currently incarcerated or detained, or whatever the precise term is, and how do you summarize the conditions they are in? And how did Richard Barnett summarize the conditions he was in?
McBride: Richard summarized the conditions as cruel and unusual. Inhumane, designed to break your spirit, to break your mind, and to infect the deepest part of your soul. So you’ll just give up and give in. The physical conditions of the place are abhorrent. They call it the “Patriot Wing.” But it is a previously defunct part of that jail and had not been used in some time. They opened it up specifically for January Sixers. It’s got brown water, it’s got black mold, it’s got poor ventilation. I mean, you name it, there’s something wrong with it. The day-to-day activity is terrible. Guys are locked up for 23 hours a day on a regular basis. Sometimes they have a couple hours a day here and there, if they’re really really good, if something special is going on.
Lots of guys get punished. They get locked up in solitary confinement for 24 hours a day — they get taken to a different part of the prison where they’re thrown in the cell. And when they’re let out, they’re shackled from head to toe like Hannibal Lecter. These are all pre-trial detainees.
You have somebody like the case of Jake Lang, who my colleague Steven Metcalf represents. Steve has described Jake as Tom Hanks from Castaway at this point, that he’s got a beard and he’s got long hair because they don’t let him cut his nails, get a haircut, take regular showers, and keep him in the dark. And all because he is one of the people inside who says to other people, you know, instead of just pleading out in this case, why don’t you pray? Why don’t you seek God’s guidance? And why don’t you think about just holding fast, because most of us really didn’t do anything that wrong.
Because he is that type of guy, sort of the inspirational person, they threw him in “the box” — he’s been in the box for months. Just the other day, we got a report — and this is coming straight from my colleague — that they let him out, and he was out for a few hours. The guys get one hour of “rec” a day to come out of the cells — they're otherwise in for 23 hours. You can shower, make a phone call, do whatever. Guys of course went to Jake’s cell — they haven’t seen him in forever. And when Jake was brought back to the unit they were all celebrating him. The guards told them, “Cut the crap, don’t celebrate, you’re not allowed to do this, don’t go to the cell. It’s against the rulebook.” All these guys have the rulebook. There is a rulebook. They know it in and out at this point, inside and out. And they said, “Hey, listen, this is not a violation of rules. We’re gonna see Jake, no matter what.” At some point, the officers go over to Jake’s cell, they open it up, they mace him, they chain him up, and then drag him back to solitary confinement, where he remains until this very moment. What the hell is that? Is that the United States of America? No, no. Why is that happening? Why are people not speaking up? I don’t know. All I know is that it is happening,
If you’re a white person, especially a white liberal person — or a white any person who’s having a problem with believing what I’m saying. Go find a black or Latino person in this country, and ask them about the people in their family, especially the men in their family who have been to jail and talk to those men, if they’re fortunate enough to be out at this point. Ask them about the abuses and the horrors that take place in prisons across the United States on a regular basis. And then ask them if the things that we are alleging about what’s happening now in DC Guantanamo Bay are plausible. And I promise you without any shadow of a doubt, these men who have experience with the penal system, be it state or federal, will tell you, in every circumstance, that this is without a doubt par for the course when you’re incarcerated.
But the problem here is that these men who are being held there, and these women who are being held there, have not been tried and lost on the facts. They haven’t been convicted of any crime. They’ve merely been accused. And the Supreme Court is clear on this. The Supreme Court says that, for pre-trial detainees, punishment of any kind is not acceptable. Never mind punishment that is sadistic and or malicious. But that is exactly what’s happening here. It’s real. And it’s happening.
MT: You said that if anybody is incredulous that this kind of treatment could be happening in the US prison system, they should go ask a black or Latino person who maybe has relatives that have been incarcerated. That gets at a retort that I know I’ll hear, which is that this is no different from how your run-of-the-mill criminal defendant in a pre-trial detention scenario is treated. Or in other words, the Jan. 6 crowd isn’t being subject to treatment that’s any harsher from what would normally be expected. Is that true, or are there unique harms that are being inflicted on these Jan. 6 defendants because of their perceived political ideology or whatnot?
McBride: So, two wrongs do not make a right, ever. We all know that, right? Number one. Number two, the ACLU has been on the record for a long time stating that solitary confinement — never mind the beatings, never mind the sleep deprivation, never mind all the other psychological things that they’re doing to people, but solitary confinement in and of itself — is torture. On the record as saying that. The United Nations has the Nelson Mandela rule, which was recently adopted just this past April by New York State — codified as law — banning more than 15 days of solitary confinement because of how harmful it is.
Now when we talk about these things, generally, we’re speaking about the treatment of people who have been convicted of crimes. Convicts have to deal with life in prison much differently than the merely accused person who’s going to go back to their family very likely at some point, especially the ones who’ve been accused of nonviolent crimes. So we have to make that separation every case, and we have to make it immediately.
As to the case of January Sixers, I cannot tell you of any other time in history where an entire wing of a prison has been opened up for a specific group of people, and people have been thrown into that wing of the prison that is filthy and disgusting and covered in mold and gives you brown water.
I cannot tell you an entire time in history, where so much public outcry has happened about the conditions of confinement in a single unit and a single prison — to fall on deaf ears, almost unanimously, amongst the members of Congress.
This has never happened before. This is unique. The only other time that you can compare this to is the detainment of prisoners in Guantanamo Bay.
MT: When you say that beatings have taken place, you mentioned one example of the individual being maced in his cell. But could you maybe give a couple more — what circumstances gave rise to beatings being doled out, who administered the beatings, who received them? Is this a systemic feature of what happens in that wing?
McBride: So, yes. I have to be careful when it comes to specifics, not with regard to what had happened, but I can’t identify people if they are represented by other lawyers, or if they haven’t asked to be identified because of fear of retribution. But what I can say is that there is one case in particular where a detainee was beaten within an inch of his life, because he asked for toilet paper.
There is another case of, I believe he was a black gentleman, who I think from what I have been told by Richard Barnett, had some emotional, possibly psychological issues — in the cell next to him. And because he was crying, and because he was upset — because he probably needed the counselor or a psychiatrist of some kind — at some point the guards just opened up the cell and maced this guy so bad that Richard’s cell next door filled up with a cloud of mace, and Richard choked on mace and had to be taken out of his cell.
There was another time with my client, Richard Barnett — he’s a 60 year old man under very stressful conditions. He thought he was having a heart attack. He said, “I think I’m having a heart attack. I need a doctor.” The guard laughed at him. Another guard came over and laughed at him as well. They left him there on the floor. Thank God, a counselor was around, she walked by, he screamed out for her. She got him help. And he went to seek medical attention. He did not have a heart attack, thank God. But what if he did?
What is happening there is wrong. I have no doubt that some of these plea offers that the Government is going to make are going to require people to waive civil claims of brutality.
People call me on a regular basis, to talk to me about the atrocities — the bad things that are happening there all the time.