The Trump-made-me-do defense is already looking like a long shot.
Facing overwhelming evidence in Capitol’s deadly siege last month – including social media posts displaying his actions – rioters are arguing in court that they were following the instructions of then President Donald Trump on January 6. But the legal strategy has already been overturned by at least one judge, and experts believe the argument is unlikely to free anyone from the uprising in which five people died, including a police officer.
“This alleged defense, if recognized, would undermine the rule of law because then, like a king or dictator, the president could dictate what is illegal and what is not in this country,” said United States district judge Beryl Howell recently in custody by William Chrestman, an alleged member of the Proud Boys chapter in the Kansas area.
Chrestman’s lawyers argued in court documents that Trump gave the crowd “explicit permission and encouragement” to do what they did, providing those who obeyed him “a viable defense against criminal liability”.
“It is an amazing thing to imagine attacking the United States Capitol with sticks and flags and bear spray, armed against armed and highly trained police officers. Only someone who thought he had an official endorsement would try such a thing. And a proud boy who was paying attention would very much believe so, ”wrote Chrestman’s lawyers.
Trump was acquitted of inciting insurrection during his second impeachment trial, in which Democrats made some of the same arguments that defense lawyers are making in the criminal court. Some Republican lawmakers have said that the best place for the charges against Trump is in court as well.
Meanwhile, prosecutors have filed charges against more than 250 people so far in the attack, including conspiracy, assault, civil unrest and obstructing an official process. Authorities have suggested that rare accusations of sedition may be coming against some. Hundreds of Trump supporters were photographed and filmed invading the Capitol and dozens posted selfies inside the building on social media, so they can’t exactly argue in court that they weren’t there. Blaming Trump may be the best defense they have.
“What’s the best argument when you’re recording a videotape showing off on Capitol Hill with a hanger in your hand?” said Sam Shamansky, who is representing Dustin Thompson, an Ohio man accused of stealing a clothes rack during the riot.
Shamansky said his client would never be at the Capitol on January 6 if Trump had not “summoned him there”. Trump, he added, was involved in a “tortuous but effective brainwashing plot” that supporters believe the election was stolen from, putting them in the position where they “felt the need to defend their country at the commander’s request. -boss”.
“I think it fits perfectly,” he said of the defense. “The most subtle question is: who is going to buy it? What kind of jury panel do you need to understand this? “
While experts say blaming Trump may not get his clients off the hook, it can help with sentencing when they ask the judge for clemency.
“It can be considered a mitigating factor that this person genuinely believes that he is simply following the instructions of the leader of the United States,” said Barbara McQuade, a former United States attorney in Michigan who is now a professor at the University of Michigan School of Law.
This could also serve as a basis for any potential case against the former president, experts say.
“This defense is dead on arrival,” said Bradley Simon, a New York City white-collar criminal defense lawyer and former federal prosecutor. “But I think these statements by defendants saying they were led by Trump cause a problem for him if the Justice Department or the attorney general in DC starts to examine the charges against him for inciting insurrection.”
Although the legal barrier is high to prosecute Trump in the siege of the Capitol, the former president already faces a lawsuit by Democratic deputy Bennie Thompson who accuses him of conspiring with extremist groups to prevent Congress from certifying election results. And more processes can come up.
Trump spread unfounded allegations about the election for weeks and addressed thousands of supporters at a rally near the White House before the Capitol rebellion, telling them that they met in Washington “to save our democracy”. Trump later said, “I know everyone here will soon be marching to the Capitol building to make their voices heard in a peaceful and patriotic way.”
A lawyer for Jacob Chansley, the shirtless man who wore face paint and a horned hat inside the Capitol, attached a prominent transcript of Trump’s speech before the riot to a lawsuit seeking to release Chansley from custody. Defense attorney Albert Watkins said the federal government is sending a “frighteningly scary message” that Americans will be prosecuted “if they do what the president asks them to do”.
Defense lawyers employed other strategies without much success. In one case, the judge called the portrait of a disturbance defense lawyer as mere invasion or civil disobedience, both “not persuasive and distant from reality”. In another, a judge dismissed a man’s claim that he was “tricked” into joining the anti-government group Oath Keepers and participating in the attack on the Capitol.
Other defendants linked to militant groups also tried to shift the blame to Trump for seeking his release from prison before the trial. A lawyer for Jessica Watkins said the Oath Keepers member believed that local militias would be called if Trump invoked the Insurrection Act to remain in office. Watkins denied the Oath Keepers during a hearing on Friday, saying she was “shocked” by other members of the far-right militia.
“As wrong as they were, her intentions were in no way related to the intention to overthrow the government, but to support what she believed to be the legitimate government,” wrote her lawyer.
Meanwhile, Dominic Pezzola’s lawyer, another suspect of being Proud Boy, said he “acted with the illusion that he was a ‘patriot’ protecting his country”. Defense attorney Jonathan Zucker described Pezzola as “one of millions of Americans who have been duped by the president’s mistake.”
“Many of those who answered his call will go through a substantial part, if not the rest of their lives in prison,” he wrote. “Meanwhile, Donald Trump resumes his life of luxury and privilege.”