Donald Trump has embraced the rioters who attacked the US Capitol on 6 January 2021, as patriots, vowed to pardon a large portion of them if he wins a second term and even collaborated on a song with a group of jailed defendants.
In his election interference case in Washington, his lawyers are taking a different tack.
Despite losing a bid to strike from the indictment references to that day’s violence, defence attorneys have made clear their strategy involves distancing the former president from the horde of rioters, whom they describe as “independent actors at the Capitol.” At the same time, special counsel Jack Smith’s team has signalled it will make the case that Trump is responsible for the chaos that unfolded, and point to Trump’s continued support of the Jan 6 defendants to help establish his criminal intent.
The competing arguments highlight the extent to which the riot serves as an inescapable backdrop in a landmark trial set to begin on 4 March 2024 in a courthouse just blocks away from the Capitol.
It also reflects a point of separation between Trump and his legal team in the case accusing the front-runner for the Republican presidential nomination of conspiring to overturn his 2020 election loss. While Trump’s glorification of Jan 6 defendants may boost him politically as he vies to retake the White House in 2024, his lawyers’ approach lays bare a concern that arguments linking him to the rioters could harm him in front of a jury.
Though Trump is not charged with inciting the riot, any success he hopes to have at trial may turn in part on his defence team’s ability to neutralise, or at least minimise, the ghoulish images of the violence that prosecutors cite as a natural extension of the former president’s repeated lies about a stolen election.
Much may depend as well on the evidence permitted by US District Judge Tanya Chutkan. Trump’s lawyers have signalled they will try to block prosecutors from presenting at trial evidence related to the actions of the rioters, who shattered windows, beat police officers, and sent lawmakers running into hiding.
“What’s likely to happen here is for the judge to strike some type of reasonable balance, which will allow prosecutors to admit some portion of the evidence about the conduct and some of the violence that went on during that day, but will put some kinds of limits on just how far prosecutors can go in presenting evidence of violent conduct,” said Robert Mintz, a defense attorney and former federal prosecutor in New Jersey who has followed the case.
Trump has denied any wrongdoing in the case, which he has characterised as politically motivated.
In separate civil cases seeking to hold Trump liable for the Capitol attack, his lawyers have argued he encouraged his supporters to peacefully protest the results of the election and never called for any violence. The federal appeals court in Washington is currently weighing whether Trump can be sued by lawmakers and police officers, who have accused him of inciting the riot.
Trump will stand trial in the same courthouse where roughly 1,200 of his supporters have been charged in the largest investigation in Justice Department history. More than 800 of them have pleaded guilty or been convicted at trial of federal crimes stemming from the riot, including seditious conspiracy and assaulting police officers. About two-thirds of those sentenced so far have received prison time.
The former president often speaks on the campaign trail about what he says is the mistreatment of those defendants, many of whom have argued in court that they were following his instructions to go to Washington and to the Capitol on Jan 6. Judges and juries, however, have rejected the argument that rioters who said they were acting at Trump’s direction can’t be held responsible for their crimes.
At a recent rally in Houston, Trump took the stage to a song titled “Justice For All,” featuring a choir of jailed Jan 6 participants and Trump reciting the Pledge of Allegiance. He told the crowd: “I call them the J6 hostages, not prisoners.”
In court, however, his lawyers argued that references to the rioters’ conduct are irrelevant and that details of that day’s violence would only prejudice the jury against their client because they “may wrongfully impute fault to President Trump for these actions.” They are also seeking to force prosecutors to hand over to the defence statements by prosecutors in Jan. 6 rioters’ cases they say undercut Smith’s argument that Trump is responsible for the violence.
Judge Chutkan recently rejected Trump’s bid to strike references to the riot from the indictment, saying he “has not satisfied his burden to clearly show that they are prejudicial.”
Smith’s team has previewed how prosecutors will make the case that Trump used the angry mob as “a tool” in his campaign to pressure then-Vice President Mike Pence and obstruct the certification of Biden’s victory in a bid to desperate bid to subvert the will of voters.
Prosecutors have suggested they will show jurors the video of Trump’s speech before the riot in which he urged the crowd to go to the Capitol and “fight like hell.” They have also indicated they may seek to call rioters as witnesses, saying they will provide testimony that people who were at the Ellipse when Trump told them to “fight” went on to violently attack the Capitol. And they plan to highlight Trump’s continued embrace of the rioters to make the case that he intended for the chaos at the Capitol that day.
“There is a robust public record of how rioters’ actions at the Capitol on January 6 were extraordinarily violent and destructive, including attacks on law enforcement officers with flag poles, tasers, bear spray, and stolen riot shields and batons,” Smith’s team wrote in a recent court filing. “Despite this, the defendant has never wavered in his support of January 6 offenders.”
Though it’s easy to see why the defence team would push to limit such references, it’s also clear why prosecutors would see his encouragement and supportive words for the rioters as incriminating evidence that speaks to a criminal intent about his desire to overturn an election he had lost, said Tim Belevetz, a Washington attorney and former Justice Department prosecutor.
“The charges in the indictment require proof that President Trump acted knowingly and corruptly to overturn the election results,” he said, adding that from the Smith’s team perspective, “the actions at the Capitol that day are relevant to his state of mind, his intent and motive,” he said.
