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Lawyers for accused Capitol rioters outline a defense: The president made them do it

Crystal Hill
·Reporter
·9 min read
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Facing federal charges that could land them in prison, some of the defendants charged with participating in the attack at the U.S. Capitol are preparing to shift the blame onto other participants — or to former President Donald Trump.

More than 100 people have been charged preliminarily in federal court in the District of Columbia in connection with the riot, according to a list provided by the Department of Justice. The charges range from knowingly entering or remaining in any restricted building or grounds without lawful authority to assaulting a federal officer. The most serious offenses carry penalties of up to 20 years in prison, but federal officials have said that more severe charges could be filed.

In many cases, their presence at the Capitol is well-documented in online photos and videos, which prosecutors are using to build their cases.

“It’s hard to rebut roughly 10,000 miles worth of video footage reflecting and depicting my client at the Capitol on Jan. 6,” Albert Watkins, a St. Louis-based attorney who’s representing Jacob Chansley, the shirtless, horned-helmet-wearing man known as the “QAnon shaman,” told Yahoo News.

Pro-Trump protesters
Pro-Trump protesters at the Capitol, Jan. 6. (Jon Cherry/Getty Images)

The presence at the scene of Chansley, who faces charges of civil disorder and entering a restricted building, “is not the issue,” Watkins said; the issue is that a group that included his client felt a special bond with Trump and were willing to do whatever he asked. “And on Jan. 6 my client, who had been fueled by an ongoing dialogue with other like-minded individuals, appeared to heed the call of the president to help him save our country,” Watkins said.

Watkins was indirectly citing Trump’s remarks at a rally before the riot on Jan. 6, during which he urged them to “fight like hell” to overturn the results of the 2020 presidential election, which he falsely claims was stolen from him. The Capitol attack happened while Congress was counting the Electoral College votes to certify President Biden’s victory.

“They listened to [Trump] and his cohorts speak to them in a fashion that is akin to a high school football coach on a Friday evening talking to his team and getting them all hyped up in the locker room before he runs out to the football field with them,” Watkins said.

But Trump did not run onto the metaphorical field, returning instead to the White House to watch the mayhem on television. After tweeting out his “love” for the rioters (“you’re very special,” he added), he eventually — after it became apparent that the effort to overthrow the government had failed — denounced the riot, if not explicitly the rioters.

“Mob violence goes against everything I believe in,” Trump said in a video, “and everything our movement stands for. No true supporter of mine could ever endorse political violence.” Trump was impeached by the House of Representatives on Jan. 13 over his role in encouraging the attack and is expected to stand trial in the Senate.

Richard Barnett
Trump supporter Richard Barnett occupies the office of House Speaker Nancy Pelosi on Jan. 6. (Saul Loeb/AFP via Getty Images)

Mike Scibetta, a Rochester, N.Y., attorney who represents Dominic Pezzola, charged with obstruction of an official proceeding and destruction of government property, said his defense team is mindful of how Trump’s involvement may affect the case against his client.

“We have one arm of the prosecutorial government, apparently going to prosecute a president for inciting and inviting these individuals to come down there,” Scibetta told Yahoo News. “That begs the question. How, on the other hand, can you not say that they weren't invited to come down there? Were they invited to break things? Probably not. But certainly trespass begs the question: Am I trespassing when the highest power in the country invited me down to come on down to the Capitol?”

The Capitol, for the record, is the seat of Congress, a separate and co-equal branch of government over which the president has no direct authority.

Lori Ulrich, a federal public defender in Harrisburg, Pa., said at a hearing in Pennsylvania for her client Riley June Williams that it’s “regrettable that Ms.Williams took the president's bait and went inside the Capitol,” NBC Philadelphia reported. Williams is accused of stealing House Speaker Nancy Pelosi’s laptop from her office with the intent to sell it to Russian intelligence, according to the criminal complaint against Williams. Ulrich declined to comment further on her statement in an interview with Yahoo News. “We are at the very early stages of the proceeding,” she said, “so there is a lot we don’t know.”

A pro-Trump protester carries the lectern of U.S. Speaker of the House Nancy Pelosi through the Roturnda of the U.S. Capitol Building after a pro-Trump mob stormed the building on January 06, 2021 in Washington, DC. (Win McNamee/Getty Images)
A pro-Trump protester carries the lectern of U.S. Speaker of the House Nancy Pelosi through the Roturnda of the U.S. Capitol Building after a pro-Trump mob stormed the building on January 06, 2021 in Washington, DC. (Win McNamee/Getty Images)

Of the attorneys who have spoken publicly, Watkins is perhaps the most willing to put the blame squarely on Trump, but other attorneys have at least tacitly acknowledged that they are considering what is known as a “public authority” defense, namely, that their clients believed they were acting at the direction of the president.

“I can't say whether Trump has any responsibility,” James Whalen, a Frisco, Texas, attorney for Troy Smocks, told Yahoo News. Smocks is charged with making threats related to the riot on the now defunct conservative social media app Parler.

According to the criminal complaint, Smocks allegedly wrote: “Today, January 6 , 2021, We Patriots by the millions have arrived in Washington, DC, carrying banners of support for the greatest President the World has ever known. But if we must...Many of us will return on January 19 , 2021, carrying our weapons in support of Our nation’s resolve, to which the world will never forget. We will come in numbers that no standing army or police agency can match. However, the police are NOT our enemy, unless they choose to be! All who will not stand with the American Patriots...or cannot stand with us, then, that would be a good time for you to take a few vacation days.”

Supporters of Donald Trump
Militant supporters of former President Donald Trump inside the Capitol on Jan. 6. (Roberto Schmidt/AFP via Getty Images)

There was more, Whalen said, adding “when you look at the entire post in its context, there is reference to what President Trump said in his [Jan. 6] speech.”

Whalen, along with every other attorney who spoke to Yahoo News, denied the allegations on behalf of their clients but acknowledged that they were at the Capitol during the riot.

Scibetta said Trump’s perceived role is “something to explore” as a legal argument. “It’s a legitimate, rational basis for these people, [who] in most instances would've been home, going about their daily lives, had the most powerful man, arguably in the world but certainly the country, not said, ‘Come on down, make your voice heard, come to the Capitol.’”

Protesters supporting Donald Trump
Pro-Trump rioters breaking into the Capitol. (Win McNamee/Getty Images)

With dozens of defendants from across the country, and a chaotic scene to parse through, some attorneys are distancing their clients from what they describe as bad actors who appeared to spur the violence and destruction at the Capitol.

“He’s being lumped in with certain individuals that may have acted violently,” defense attorney Jason DiPasquale said of his client, Peter Harding, who’s from a town near Buffalo, N.Y. Harding is charged with entering a restricted building as well as violent and disorderly conduct, which DiPasquale notes are misdemeanors.

“He in no way, shape or form gained entry [to the Capitol] through violence,” DiPasquale said, “or partook in any of the violent acts that have been displayed [by] the media, that others may have engaged in.”

Watkins said there’s footage of his client being let into the building. “Some [people] had no intentions of ever walking to the Capitol, much less going into it,” he said. “[And] you had some that were bad apples.”

Some legal experts are doubtful that these arguments will gain traction before a judge or a jury. “For the most part, these claims don’t amount to serious legal defenses,” Daniel Richman, a former federal prosecutor and professor at Columbia Law School, told Yahoo News via email.

Jacob Chansley
Jacob Chansley, the so-called QAnon shaman, at the Capitol on Jan. 6. (Win McNamee/Getty Images)

“They still might get before juries, if the cases go to trial, and potentially affect assessments of intent and knowledge,” he said. “But since so few cases go to trial, and the ones that do will go before DC jurors who I suspect won't incline toward sympathy, I would be surprised if the claims made headway.”

Maneka Sinha, a criminal defense expert and professor at the University of Maryland Law School, told Yahoo News that some of these defenses may be better served for mitigation purposes, specifically during the sentencing phase or when they’re arguing for pretrial release.

“If these cases go to trial, juries are going to have to decide whether claims like that are credible. But as an initial matter, the information that’s already available to the public seems to somewhat belie the idea that it would be easy to believe that you weren’t doing anything wrong. We’ve got fencing, we've got barricades, police officers pushing people back, orders to stop. And then on top of that, the pretty basic facts that they’re entering federal property while Congress was in session, many with this explicit purpose of overturning the election.”

Sinha noted that it’s too early to speculate on the outcome of the cases. While many criminal cases are resolved with a plea agreement, the Capitol riot cases many not have that option.

“It’s not every day that the Capitol is breached,” she said. “So we don’t know if prosecutors are going to treat these cases the way they treat ordinary cases, and they may not.”

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