Capitol Rioters’ ‘Trump Defense’ Comes Up Again And Again. Will It Make A Difference?

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May 18, 2021 7:01 a.m.

A few weeks after his arrest for allegedly storming the Capitol on Jan. 6, the man known as the “QAnon Shaman,” Jacob Chansley, floated an idea that dozens of others have tried — that Trump himself deserved some of the blame for his actions. 

Chansley’s attorney wrote that his client had been consistent “in his assertion that but for the actions and the words of the President, he would not have appeared in Washington, DC to support the President and, but for the specific words of the then-President during his January 6, 2021 speech, the Defendant would not have walked down Pennsylvania Avenue and would not have gone into the U.S. Capitol Building.” 

That argument did not work. 

In a memo explaining his order to keep Chansley detained pending trial, U.S. District Judge Royce C. Lamberth said it wasn’t necessary to question Chansley’s sincerity. 

“Even taking defendant’s claim at face value, it does not persuade the Court that defendant would not pose a danger to others if released,” Lamberth wrote. “If defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trump’s orders, this shows defendant’s inability (or refusal) to exercise his independent judgment and conform his behavior to the law.” 

Nonetheless, the so-called “Trump defense” continues to resurface as alleged participants in the Capitol riot wend their way through the legal system. 

And even though the tactic may not get the defendants entirely off the hook, lawyers with whom TPM spoke, including defense attorneys for the accused, say there’s an upside to roping Trump into the case — including, potentially, a lighter sentence. 

“Legally, these are unprecedented cases,” Chansley’s attorney, Albert Watkins, told TPM last week. “And as a result, while the judge may not be compelled to emotionally embrace, as a matter of opinion, the effect or the impact of the words and actions of the former President as being a cause, there is going to necessarily be a legal compulsion to address that reality as part of an evaluation of culpability.” 

‘The Law Doesn’t Recognize It’ 

Blaming Trump for directing a defendant to take criminal actions on Jan. 6 — the “public authority” defense, in which the defendant points out that an authority figure told them to commit a crime —  is a legal long shot. 

“It doesn’t matter if they were answering his call in terms of their own guilt or innocence,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general, referring to Trump. “The law doesn’t recognize it as an excuse. Whatever brought them there, whatever they were spurred on to do, social media postings or whatever, they’re equally guilty under the federal statutes.” 

But with more than 400 people facing federal charges — a sum that grows weekly — some defense attorneys think their clients stand to benefit from invoking the former president. 

Why? It’s a numbers game: Most federal cases end in plea deals. And with prosecutors spending an inordinate amount of time on certain defendants — such as members of the far-right Proud Boys and Oath Keepers, accused of conspiring to violently interrupt Congress — some defendants are trying to distinguish themselves from those accused of planning or participating in significant violence. 

If successful, the argument goes, they could convince prosecutors to arrange a plea deal containing less serious charges, and earn the sympathies of judges calculating their prison terms. 

“Most of these people, like most defendants in the criminal system, likely are to plead guilty, and so they’re wise to try to think about what they’re going to say in mitigation at sentencing,” Harry Sandick, a former federal prosecutor in the Southern District of New York, told TPM. 

“One strategy is to say, ‘Look, I was misled, I misunderstood this, I’m sorry. I now know I shouldn’t have done this, that that was wrong, but I was watching all these people on TV and I heard what the President said,’” Sandick said. “Not that that would excuse what was done, but it might be a mitigating fact for some judges at sentencing.” 

‘I Want To Separate Him Out From That Herd Of Thugs’

For Capitol defendants’ attorneys, finding mitigating factors will be key in softening potential prison sentences.

Watkins, the “Q Shaman” Jacob Chansley’s attorney, said his client had Asperger’s syndrome and indicated that Chansley’s mental state — and the impact of Trump’s “propaganda” efforts — would play a role in his case. 

“A lot of these defendants — and I’m going to use this colloquial term, perhaps disrespectfully — but they’re all fucking short-bus people,” Watkins told TPM. “These are people with brain damage, they’re fucking retarded, they’re on the goddamn spectrum.” 

“But they’re our brothers, our sisters, our neighbors, our coworkers — they’re part of our country. These aren’t bad people, they don’t have prior criminal history. Fuck, they were subjected to four-plus years of goddamn propaganda the likes of which the world has not seen since fucking Hitler.” 

One particularly remorseful defendant, Anthony Antonio, was sick with a novel disease, “Foxitis,” when he entered the Capitol through a broken window on Jan. 6, his attorney Joe Hurley argued during an initial appearance earlier this month. 

For months, stuck home due to the pandemic, he watched endless hours of the cable television station and eventually came to accept Trump’s bogus claims of a stolen election, Hurley told TPM. 

Antonio is currently out of detention. In an interview, Hurley said the “Foxitis” claim wasn’t a defense in itself, but rather crucial context — an explanation of why his client marched to the Capitol in the first place.

“I want to separate him out from that herd of thugs that belong behind bars to set an example for the rest of the thugs that are out there,” Hurley said. 

The “Foxitis” remark, he said later, “is not a defense — it’s pointing the finger of accusation where it belongs: to the slithery snake.” 

Tierney Sneed contributed reporting.

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