Members of a right-wing militia group facing trial on the most serious charges stemming from the Jan. 6, 2021, insurrection should be barred from trying to blame former President Donald Trump for their actions, the Justice Department told a judge.
Trump, whose supporters laid siege to the U.S. Capitol to prevent the peaceful transition of power to Joe Biden, didn’t have the authority to order such an attack and therefore can’t be used in a so-called public-authority or entrapment defense, the U.S. said in a filing Friday in Washington.
The U.S. is seeking a court ruling to prevent lawyers for Oath Keepers founder Elmer Stewart Rhodes and other members of the group from using the defense during its opening statement to the jury or while questioning witnesses during the seditious-conspiracy trial, set to begin Sept. 26.
“President Trump did not have the authority to permit or authorize a conspiracy to forcibly oppose the authority of the government or the execution of the laws of the United States, nor could he have lawfully sanctioned the attack on the United States Capitol on Jan. 6 or any of the other criminal conduct allegedly perpetrated by defendants,” the U.S. said in the filing.
Rhodes’s attorney James Bright didn’t immediately respond to a phone call seeking comment on the DOJ filings.
Trump has been blamed for inciting the attack, which resulted in more than 100 police officers being injured and caused more than $1 million in damage. He held a fiery rally near the White House before the assault, encouraging a mob of supporters — some of them armed — to head toward the Capitol. Many of the roughly 800 people charged in the riot have tried to argue they were just following Trump’s orders. The U.S. argues the defendants knew better.
The U.S. also asked the judge to bar the defendants “from arguing that any failure to act by law enforcement rendered their conduct legal,” which would undercut a frequent argument by accused rioters that since some police didn’t try to stop them, they effectively had a green light to enter the Capitol. Police officers were vastly outnumbered.
Rhodes and the other members of the right-wing group lost their request for dismissal of the criminal charges last month. The judge also rejected the members’ request to move their trial from Washington to Alexandria, Virginia, because of concern about jury bias.
