Some Donald Trump supporters who have been accused of violently storming the United States Capitol are resorting to a risky defense strategy: blaming the former president. Faced with the damning evidence against their clients, some lawyers have argued that they would not accuse them of joining the violent mob if Trump had not incited them to do so.
In one case, a lawyer this week included in court documents a prominent transcript of Trump’s speech before the January 6 riots, claiming his client should be released from jail. Legal experts, however, do not consider this tactic adequate, and a judge has already rejected the idea that Trump’s words could exempt the rioters from criminal responsibility in a riot that left five dead, including a police officer.
However, experts say the allegations seeking to shift blame to Trump could buttress any potential case against him.
Trump was acquitted of inciting the riot during his second impeachment trial, in which Democrats made some of the same arguments defense attorneys are making in criminal court. Some Republican lawmakers have said that the best place to make accusations against Trump is also in court.
Meanwhile, prosecutors have so far brought charges against more than 250 people in the assault, including organized crime, assault, civil disorder and obstruction of official procedure.
The authorities have indicated that they could bring sedition charges against some, charges that are rare. Hundreds of Trump supporters were photographed and videotaped breaking into the Capitol and dozens of them even posted selfies inside the building on social media, so they can’t even argue in court that they weren’t there. Blaming Trump may be the best defense they have.
While experts say blaming Trump may not get your clients off the hook, it can help in sentencing when they ask the judge for leniency.
“It could probably be considered a mitigating factor that this person really believed that he was simply following the instructions of the leader of the United States,” said Barbara McQuade, a former federal prosecutor in Michigan who is now a professor at the University of Michigan Law School. .
It could also bolster any potential case against the former president himself, experts say.
“That defense is dead as soon as they present it,” said Bradley Simon, a New York City white-collar criminal defense attorney and former federal prosecutor. “But I do believe that these statements from the defendants who say they were led by Trump will cause him a problem, if the Department of Justice or the attorney general in DC began to pursue charges against him for incitement to insurrection.”
While the legal bar is high to prosecute Trump in the assault on Capitol Hill, the former president is already facing a lawsuit from Democratic Rep. Bennie Thompson, accusing him of conspiring with extremist groups to prevent Congress from certifying the election results. And more lawsuits could come.
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