The Senate may have acquitted Donald Trump of inciting an insurrection, but the former president still faces charges of incitement from another source: the Capitol rebels themselves.
Lawyers for at least seven accused protesters referred to Mr. Trump in his efforts to explain his clients’ actions, according to statements and documents analyzed by CBS News.
Matthew Ryan’s lawyer – who was supposedly photographed shooting a fire extinguisher on the stairs of the United States Capitol – said during a hearing on Tuesday that his client was “there by order of then President Trump”. He wrote in a February 7 lawsuit defending his client’s release before the trial: “Mr. Miller admits he was on Capitol Hill to protest along with thousands of other protesters and was just following the instructions of then President Trump, the main responsible for law enforcement in the official country, and other speakers to march to the Capitol. “
Similarly, Ethan Nordean’s defense lawyer, an accused member of the Proud Boys, wrote in a document that then President Trump “incited” his client.
A lawyer for accused Proud Boy Dominic Pezzola he wrote that his client was “tricked” and was “responding to the then commander-in-chief’s pleas”.
The strategy is similar to a defense “defense board”, says Randy Zelin, a criminal defense attorney at Wilk Auslander LLP and an adjunct professor at Cornell Law School. The tactic argues that a defendant could not have had criminal intent if he were acting on the advice of his lawyer. Although Trump is not a lawyer, Zelin says there is a notion that if someone who makes the laws tells you what to do, someone can argue that he has no intention of breaking the law.
“The President of the United States telling you that it’s okay to do something or telling you to do something – it destroys your intention, your intention to commit a crime, because the President is telling you that it’s okay,” said Zelin, describing the argument. “‘I didn’t know I was breaking the law because the President of the United States told me to go ahead and do this.'”
Harry Litman, a former U.S. attorney, said that legally, blaming Trump would be difficult, but in practice, it makes sense.
“Defending ‘Trump forced me to do this’ is very difficult, legally,” he said, but added that the move may still be smart because it can create sympathy with the jurors and may even require Trump to be summoned – a major obstacle that could delay a case and force prosecutors to reduce to minor charges.
Although lawyers for seven accused protesters invoked Trump, the documents written by federal prosecutors mentioned the former president almost three times more. The prosecution documents and government memos advocating the detention of defendants before the trial suggest that Trump inspired at least 20 of the accused protesters.
In a lawsuit that argued to arrest the accused Oath Keepers member Jessica Watkins before the trial, prosecutors said Watkins indicated he was awaiting guidance from Trump.
“Her concern about acting without his support was evident in a text of 9 November 2020, in which she stated: ‘I am concerned, this is an elaborate trap. Unless POTUS himself activates us, it is not legitimate. POTUS has the right to activate units as well. If Trump asks me to come, I will go. Otherwise, I cannot trust. ‘”
In trying to stop Timothy Hale-Cusanelli, who prosecutors call “a Nazi sympathizer,” the government wrote that he told FBI agents that he believed there was a high chance that Trump would join them at the United States Capitol after his demonstration. .
“I think what they are trying to show is that these people are still dangerous, simply because they are willing to engage in violent conduct under the instructions of the President of the United States,” said Adam S. Fels, former federal prosecutor and founding partner of Fridman Fels & Soto, PLLC, who is not involved in any of the Capitol riot cases.
At least one defendant tried to distance himself from the former president while arguing that he can be safely released from prison. In a memo, Christopher Ray Grider’s lawyer said of his client: “He no longer cares about politics or who the president of the United States is.”
In the prosecution documents, prosecutors also cited the pro-Trump defendants’ posts on social media when trying to prove that the defendants were indeed on Capitol Hill that day.
In prosecutors’ complaint against Derrick Evans, a former West Virginia state legislator, they noted that he posted a screenshot of a Mr. Trump Tweet with the caption: “That’s why we’re going to DC. #StopTheSteal . ”
In documents accusing Kenneth Grayson, prosecutors cite a post on social media in which Grayson wrote: “I’m there for the biggest celebration ever after Pence led the Senate’s turn !! OR IM THERE IF TRUMP TELLS US TO LATE THE F ** * N CAPITAL IMA DO IT THEN! “
Although Trump avoided conviction in his impeachment trial, Senate minority leader Mitch McConnell said he voted for absolution based on what he saw as a constitutional limitation of impeachment, not because he didn’t blame Trump for the riot.
McConnell said in a speech on the floor Saturday, “There is no doubt whatsoever that President Trump is virtually and morally responsible for causing the day’s events.”