The Senate may have cleared Donald Trump of instigating an uprising, but the former president is still accused of sedition from another source: the Capitol rioters themselves.
Lawyers for at least seven accused rioters have referred to Mr. Trump in attempts to explain the actions of their clients, according to statements and documents reviewed by CBS News.
Matthew Ryan Miller’s attorney – who was reportedly photographed unloading a fire extinguisher on the steps of the Capitol – said at a hearing on Tuesday that his client was “there on behalf of then-President Trump.” He wrote in a February 7 petition advocating the provisional release of his client: “Mr. Miller admits that he was on the Capitol grounds to protest along with thousands of other protesters and merely followed the directions of the then President Trump, the country’s main law enforcement agency. officer and other speakers to march to the Capitol. “
Likewise, Ethan Nordean’s lawyer, an accused member of Proud Boys, wrote in a file that then President Trump “ urged ” his client.
A lawyer for Proud Boy accused Dominic Pezzola wrote that his client was “duped” and “responded to the pleas of the then commander in chief.”
The strategy is similar to a “counsel’s advice” defense, said Randy Zelin, a criminal defense attorney at Wilk Auslander LLP and an adjunct professor at Cornell Law School. The tactic states that a suspect could not have had criminal intent if he acted on the advice of his lawyer. While Mr. Trump is not a lawyer, Zelin says there is an idea that if someone making the laws tells you what to do, someone could say they had no intention of breaking the law.
“The president of the United States tells you it’s okay to do something, or tells you to do something – that destroys your intent, your intent to commit a crime, because the president tells you 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 do it.” ‘
Harry Litman, a former US attorney, said it would be legally difficult to blame Mr. Trump, but it makes practical sense.
“ The defense of ‘Trump forced me to do it’ is a real long shot legally speaking, ” he said, but added that the move could still be smart as it could arouse sympathy from jurors, and maybe even requires a subpoena from Mr. Trump. – a major logistical obstacle that could delay a case and force prosecutors to lower charges.
While lawyers for seven accused rioters have invoked Mr. Trump, federal prosecutors are almost three times more likely to refer to the former president. The government’s indicting documents and memos calling for suspects to be detained for trial suggest that Trump inspired at least 20 of the accused rioters.
In an application advocating detention of the suspect Oath Keepers member Jessica Watkins Before the trial, prosecutors said Watkins indicated she was waiting for instructions from Mr Trump.
Her concern about taking action without his support was evident in a November 9, 2020 text in which she stated: ‘I am concerned that this is an elaborate snare. Unless the POTUS activates us itself, it is not legitimate. The right. to activate units too. If Trump asks me to come, I will. Otherwise I can’t trust it. “
By moving to detain Timothy Hale-Cusanelli, who prosecutors called a “ Nazi sympathizer, ” the government wrote that it had told FBI agents that it believed there was a good chance Trump would join them after his meeting. would insert into the Capitol.
“I think they are trying to show that these people remain dangerous simply because they are willing to engage in violent behavior on behalf of the President of the United States,” said Adam S. Fels, a former federal prosecutor and co-founder of Fridman. Fels & Soto, PLLC, who is not involved in any of the Capitol riots.
At least one defendant has attempted to distance himself from the former president while claiming that he can be released from prison safely. In a memo, Christopher Ray Grider’s attorney said of his client, “He no longer cares about politics or who the president of the United States is.”
In indicting documents, prosecutors also cited defendants’ pro-Trump social media posts while trying to prove that defendants were in fact at the Capitol that day.
In the prosecution’s indictment against Derrick Evans, a former state legislator in West Virginia, they note that he posted a screenshot of a Mr. Trump Tweet with the caption, “This is why we’re going to DC. #StopTheSteal.”
In documents accusing Kenneth Grayson, prosecutors cite a social media post where Grayson wrote, “I’m there for the greatest celebration of all time after Pence leads the Senate Flash !! OR IM THERE IF TRUMP TELLS US TO STORM THE F ** . * N CAPITAL IMA DOES THIS! “
Although Mr. Trump avoided his conviction in his impeachment trial, Senate Leader Mitch McConnell said he voted for acquittal based on what he saw as a constitutional restriction on impeachment, not because he didn’t blame Mr. Trump for the riot.
McConnell said in a speech Saturday: “There is no doubt that President Trump is practically and morally responsible for provoking the events of the day.”