Former president Donald Trump’s impeachment defense has officially begun, with his lawyers filing a brief Tuesday responding to the charges against him. The brief does little to argue that Trump didn’t actually incite the rioters who stormed the Capitol on Jan. 6. Instead, it focuses on the alleged unconstitutionality of the proceedings and broadly on Trump’s right to free speech.
But as the trial begins next week, Trump’s culpability for the riots will be at issue. And on that count, one piece of evidence looms large: the number of those who invaded the Capitol who explicitly cited Trump’s encouragement.
As The Washington Post and other news outlets have reported, several of the rioters who have been arrested pointed to perceived invitations from Trump. Up to half a dozen have now cited Trump’s encouragement in court, according to Reuters.
The lawyer for a man seen on video striking police officers’ protective shields has said that “the nature and circumstances of this offense must be viewed through the lens of an event inspired by the president of the United States.” Another lawyer said it was “regrettable” that his client, Riley June Williams, “took the president’s bait and went inside the Capitol.” Another participant who has cited Trump’s encouragement, Jacob Chansley, the “QAnon Shaman,” has even volunteered to testify at Trump’s impeachment trial.
But how significant is that? And can it be taken at face value?
These participants may have a good reason to cite Trump: to shift blame away from themselves. But according to legal experts, this strategy may not carry much or any legal benefit for them.
“Seeking to deflect blame from defendants by saying that they received instructions from then-President Trump is not likely to sway a criminal court to acquit them,” said Richard Ashby Wilson, a law professor at the University of Connecticut.
Wilson added that blame could figure into claims against Trump, particularly in a legal setting if Trump were indicted.
“If his defense counsel claims that he didn’t mean literally to fight physically when he said ‘fight,’ then that claim would be belied by all the members of his audience who understood his words to mean go and physically fight,” Wilson said.
Jens David Ohlin of Cornell University Law School also saw very limited benefit from blaming Trump.
“It doesn’t line up with any recognized legal defense,” Ohlin said. “They aren’t claiming self-defense or insanity or necessity or any other established doctrine. The fact that Trump incited the riot doesn’t extinguish the criminal responsibility of the rioters at all. That’s frequently the case in the criminal law: More than one person can be responsible, in different ways, for a criminal event.”
Leslie Jacobs, a constitutional law professor at Pacific University, also suggested that such claims would do nothing to reduce participants’ legal liability.
“There was no duress or undue influence. No heat of passion,” Jacobs said, adding: “The usual rule is that people who do conduct are liable according to the law for it, and speakers may speak so long as they do not engage in conduct.”
At least one expert, though, discerned a possible benefit for the accused. Steven Morrison of the University of North Dakota Law School said that, although such a claim may not absolve someone of guilt, it could conceivably factor into other things, including their ultimate sentence.
“If they truly believed they were following the president’s orders, this could mitigate their ultimate sentence by showing them to be less culpable — all other things being equal,” Morrison said.
He said that participants in the riot could also argue that they “were acting under color of official authority” — i.e. taking actions in good faith based on a belief about their mandate — or claim that they were literally acting on Trump’s official orders, the latter of which would be extremely difficult to prove. If it were proven, Morrison said, it would “bode very poorly for President Trump’s own criminal exposure.”
Morrison said believing they were acting on Trump’s orders is probably the only argument that would be likely to make a difference.
But, notably, the claims being made against Trump are from people who stormed the Capitol on his behalf. Making such claims is hardly a win-win, given how much it could damage the president they were there to support — and how it could inject them into his impeachment trial. (Chansley’s lawyer, who has been the most active in citing Trump as a motivational factor for his client’s actions, has said the client thinks Trump betrayed him.)
This is hardly the first time people accused of crimes have cited Trump. As of May, ABC News had found 41 cases in which defendants accused of assault, threats or other violence had suggested that their actions were on behalf of the then-president, including 10 in which Trump was cited in court.
The lawyer for a Montana man, Curt Brockway, who was charged with assaulting and fracturing the skull of a child who didn’t remove his hat for the national anthem, claimed that he was acting on Trump’s perceived orders. “Trump never necessarily says go hurt somebody, but the message is absolutely clear,” said the man’s lawyer. “I am certain of the fact that [my client] was doing what he believed he was told to do, essentially, by the president.” Brockway eventually pleaded guilty and received a 10-year suspended sentence.
It also happened after Trump supporter Cesar Sayoc was charged with sending pipe bombs to prominent Democrats and members of the media. Sayoc’s lawyers argued for a lenient sentence by saying their mentally ill client had taken Trump’s claims about dangerous Democrats too literally.
“In his statements, Trump specifically blamed many of the individuals whom Mr. Sayoc ultimately targeted with his packages,” the lawyers said. “A rational observer may have brushed off Trump’s tweets as hyperbole, but Mr. Sayoc took them to heart.”
But the argument didn’t pass muster with U.S. District Judge Jed Rakoff, who said he “wasn’t particularly impressed” by the effort to cite the influence of Trump and others, calling that a “sideshow.” Sayoc received 20 years in prison.
When Sayoc’s team put forward that argument in 2019, former assistant U.S. attorney Mimi Rocah wrote an opinion piece for NBC News titled, “Pipe-bomber Cesar Sayoc’s lawyers named Trump in their defense. They won’t be the only ones.”
And here we are today. Expect to hear plenty more about what these people have had to say — and what it means — when Trump’s impeachment trial starts next week.