The “Trump-made-me-do-it” defense already looks like a longshot.
Facing damning evidence during the Capitol’s deadly siege last month – including social media posts showing off their actions – Rioters argue in court that they were following the instructions of then-President Donald Trump on January 6. But the legal strategy has already been shot down by at least one judge and experts believe the argument is unlikely to take anyone off the hook for the uprising that killed five people, including a police officer.
“This alleged defense, if recognized, would undermine the rule of law, because then the president, like a king or a dictator, could dictate what is illegal and what is not in this country,” US District Judge Beryl Howell said recently on the warrant. The remand of William Chrestman, a suspected member of the Kansas City-area branch of the Proud Boys. “And that’s not how we work here.”
Chrestman’s lawyers argued in court documents that Trump gave the crowd “ explicit permission and encouragement ” to do what they did, by providing those who obeyed him with a “ viable defense against criminal liability. ”
“It’s amazing to imagine storming the United States Capitol with sticks and flags and bear spray set up against armed and trained law enforcement officers. Only someone who thought they had official approval would even attempt such a thing. And a proud boy who had paid close attention would love to believe he did, ”Chrestman’s lawyers wrote.
Trump was acquitted of instigating the uprising during his second impeachment trial, where Democrats advanced some of the same arguments defense lawyers make in criminal courts. Some Republican lawmakers have said that the better place for the charges against Trump is also in court.
Meanwhile, prosecutors have so far brought charges against more than 250 people involved in the attack, including conspiracy, sexual assault, civil disorder and obstruction of official proceedings. Authorities have suggested that rare allegations of sedition may be brought against some. Hundreds of Trump supporters were photographed and filmed storming the Capitol, and scores posted selfies in the building on social media, so they can’t exactly claim in court that they weren’t there. Blaming Trump may be the best defense they have.
“What better argument if you’re on videotape prancing through the Capitol with a coat rack in your hand?” said Sam Shamansky, who represents Dustin Thompson, an Ohio man accused of stealing a coat rack during the riot.
Shamansky said his client would never have been at the Capitol on January 6 if Trump had not summoned him there. Trump, he added, was engaged in a “ devious but effective plot to brainwash supporters ” into believing the election had been stolen, leaving them “ feeling the need to defend their country at the request of the commander-in-chief. ”
“I think it fits perfectly,” he said of the defense. “The more nuanced question is: who is going to buy it? What kind of jury panel do you need to understand that? ”
While experts say impeaching Trump may not get their clients off the hook, asking the judge for leniency could help with conviction.
“It could probably be taken as a mitigating factor if this person sincerely believed that they were just following the instructions of the leader of the United States,” said Barbara McQuade, a former Michigan attorney who is now a professor at the University of Michigan. Law School. .
It could also bolster potential cases against the former president, experts say.
“That defense is dead on arrival,” said Bradley Simon, a New York City attorney and former federal prosecutor. “But I do think these statements by defendants who say they were led by Trump pose a problem for him if the Justice Department or the DC Attorney General started investigating allegations against him for instigating the uprising.”
While the legal bar is high for prosecuting Trump during the siege of the Capitol, the former president is already facing a lawsuit from Democratic Representative Bennie Thompson accusing him of conspiring with extremist groups to prevent Congress from certifying the election results. And there may be more lawsuits to come.
Trump spread baseless allegations about the election for weeks and addressed thousands of supporters at a rally near the White House before the uprising at the Capitol, saying they had gathered in Washington “to save our democracy.” Trump later said, “I know everyone here will soon be marching to the Capitol to make your voices heard peacefully and patriotically.”
A lawyer for Jacob Chansley, the shirtless man who wore face paint and a hat with horns at the Capitol, added a featured transcript of Trump’s speech before the riot to a lawsuit calling for Chansley’s release. Defense attorney Albert Watkins said the federal government is sending a “disturbingly chilling message” that Americans will be prosecuted “if they do what the president asks of them.”
Defense lawyers have employed other strategies with no better success. In one case, the judge called a defense attorney’s portrayal of the riots as mere violations or civil disobedience, both “inconclusive and unrelated to reality.” In another case, a judge dismissed a man’s claim that he had been “duped” into joining the anti-government Oath Keepers group and participating in the assault on the Capitol.
Other defendants associated with militant groups have also attempted to blame Trump by requesting their provisional release from prison. A lawyer for Jessica Watkins said the member of the Oath Keepers believed local militias would be summoned if Trump appealed the Insurrection Act to remain in office. Watkins disavowed the Oath Keepers in a court hearing on Friday, saying she was “shocked” by fellow members of the far-right militia.
“Misleading as it may be, her intentions were in no way related to the intention to overthrow the government, but to support what she believed was the lawful government,” her lawyer wrote.
Meanwhile a lawyer for Dominic Pezzola, another alleged Proud Boy, said he was “acting on the delusion that he was a ‘patriot’ protecting his country.” Lawyer Jonathan Zucker described Pezzola as “one of the millions of Americans who were deceived by the president’s deception.”
“Many of those who responded to his call will spend significant portions, if not the rest of their lives in prison as a result,” he wrote. “Donald Trump, meanwhile, is resuming his life of luxury and privilege.”