The “Trump-made-me-do-it” defense already seems like a long shot.
Facing condemnatory tests in the deadly siege of the Capitol last month, including posts on social media showing off his actions – The riots argue in court that they followed the instructions of then-President Donald Trump on January 6th. But the legal strategy has already been shot down by at least one judge and experts believe it is likely that the argument will not decongest anyone insurrection where five people were killed, including a police officer.
“This alleged defense, if recognized, would undermine the rule of law because then, like a king or a dictator, the president could dictate what is illegal and what is not in that country,” he said recently. U.S. District Judge Beryl Howell on the pretrial detention order of William Chrestman, allegedly a member of the Kansas City area chapter of the Proud Boys. “And that’s not how we operate here.”
Chrestman’s lawyers argued in court papers that Trump gave the mafia “explicit permission and encouragement” to do what they did, providing those who obeyed him with “a viable defense against criminal liability.”
“It’s amazing to imagine storming the United States Capitol with sticks, flags and bear spray, facing armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even try to do so. And a proud boy who had been attentive thought so, ”Chrestman’s lawyers wrote.
Trump was acquitted of inciting the insurgency during his second impeachment trial, where Democrats presented some of the same arguments that defense attorneys defend in criminal court. Some Republican lawmakers have said the best place for charges against Trump is also in the courts.
Meanwhile, prosecutors have filed charges against more than 250 people so far in the attack, including conspiracies, assaults, civil unrest and obstruction of an official procedure. Authorities have suggested that rare charges of sedition could be filed against some. Hundreds of Trump supporters were photographed and videotaped storming the Capitol and several posts posted selfies inside the building on social media, so they can’t argue exactly in court that they weren’t there. Blaming Trump may be the best defense they have.
“What’s the best argument when you make a videotape walking around the Capitol with a hanger in your hand?” said Sam Shamansky, who represents Dustin Thompson, an Ohio man accused of stealing a hanger during the riot.
Shamansky said his client would never have been at the Capitol on Jan. 6 if Trump had not “summoned him there.” Trump, he added, took part in a “plot, but effective, to brainwash,” supporters of believing the election was stolen, putting them in a position where they “felt the need to defend their country in request of the commander in chief “.
“I think it fits perfectly,” he said of the defense. “The most nuanced question is: who will buy it? What kind of jury do you need to understand this? ”
While experts say blaming Trump can’t sideline his clients, he can help in sentencing when they ask the judge for clemency.
“It could probably be considered a mitigating factor for this person to really believe that he was simply following the instructions of the U.S. leader,” said Barbara McQuade, a former U.S. attorney in Michigan who is now a professor at the University of Law School. Michigan. .
Experts could also bolster possible cases against the former president.
“This defense is dead on arrival,” said Bradley Simon, a New York City white-collar criminal defense attorney and former federal prosecutor. “But I think those statements from the defendants who say Trump led them cause him a problem if the Justice Department or the DC Attorney General began examining the charges against him for inciting insurrection.”
Although the legal limit is high to prosecute Trump in the siege of the Capitol, the former president already faces a lawsuit from Democratic Rep. Bennie Thompson this accuses him of conspiring with extremist groups to prevent Congress from certifying election results. And more lawsuits could come up.
Trump spread unfounded claims about the election for weeks and addressed thousands of supporters at a rally near the White House before the Capitol revolt, telling them they had gathered in Washington “to save our democracy.” Later, Trump said, “I know everyone here will soon be marching to the Capitol building to make your voices heard peacefully and patriotically.”
A lawyer for Jacob Chansley, the shirtless man wearing face paint and a horned hat inside the Capitol, attached a prominent transcript of Trump’s speech before the riot to a court requesting Chansley’s release. Defense attorney Albert Watkins said the federal government sends a “disturbing creepy message” that Americans will be prosecuted “if they do what the president asks of them.”
Defense attorneys have employed other strategies without better success. In one case, the judge described the representation of the riots by a defense lawyer as a simple transgression or civil disobedience both “unconvincing and unrelated to reality.” In another, a judge rejected the claim of a man who was “tricked” into joining the anti-government group Oath Keepers and participating in the attack on the Capitol.
Other defendants linked to militant groups have also tried to blame Trump for demanding his pretrial release from prison. An attorney for Jessica Watkins said the Oath Keepers member believed local militias would be put into action if Trump invoked the Insurrection Act to stay in office. Watkins disallowed the Oath Keepers during a court hearing on Friday, saying she has been “dismayed” by comrades in the far-right militia.
“As wrong as it may be, his intentions were not related in any way to the intention to overthrow the government, but to support what he believed to be lawful government,” his lawyer wrote.
Meanwhile, Dominic Pezzola’s lawyer, another Proud Boy suspect, said he “acted out of the delusional belief that he was a ‘patriot’ protecting his country.” Defense attorney Jonathan Zucker described Pezzola as “one of the millions of Americans who were deceived by the president’s deception.”
“Many of those who answered his call will spend substantial portions if not the rest of his life in prison as a result,” he wrote. “Meanwhile, Donald Trump is resuming his life of luxury and privileges.”