As the US Senate prepares for the historic second impeachment trial of former President Donald Trump on Tuesday, some of the accused rioters who occupied the US Capitol on January 6 are using his words as their defence, according to court filings.
Emanuel Jackson, who court filings describe as a “recently homeless” Black man aged 20, was allegedly caught on camera using a metal baseball bat to strike police protective shields as rioters breached defences in an attempt to stop a joint session of Congress from certifying President Joe Biden’s electoral victory.
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Jackson’s lawyer, Brandi Harden, wrote in a filing calling for pretrial release that Trump “roused the crowd by telling them ‘we will stop the steal’ and ‘you’ll never take back our country with weakness, you have to show strength, and you have to be strong … if you don’t fight like hell you are not going to have a country any more'”.
As such, “the nature and circumstances of this offense must be viewed through the lens of an event inspired by the President of the United States”, Harden wrote.
A judge on January 22 denied the request, but Jackson is not the only accused rioter to use this defence.
20-year-old Emanuel Jackson, a participant in the Capitol riot, has been denied bail despite others being released.
— Complex (@Complex) January 30, 2021
A Reuters tally found that least six of the 170 people charged in connection with the Capitol siege have tried to shift at least some of the blame onto Trump as they defend themselves in court or in the court of public opinion.
Other defendants to take this route include Jacob Chansley, also known as Jake Angeli, the “QAnon Shaman” who donned a horned headdress and face paint during the attack, and Dominic Pezzola, a member of the Proud Boys right-wing group who is accused of shattering a window in the Capitol with a stolen police shield so rioters could enter.
Lawyers have not yet sought dismissal of charges or acquittal during a trial based on the idea that Trump incited their clients, instead making the claim as part of efforts to spare them from pretrial detention.
Both Pezzola and Chansley remain behind bars ahead of their trial dates.
No defendant will be able to avoid criminal culpability by saying they were incited by Trump, said Jay Town, who served as the top federal prosecutor in Birmingham, Alabama, during the Trump administration.
“If anything, it is an admission to criminal conduct,” Town, now the general counsel of cybersecurity firm Gray Analytics, told Reuters. “While this ineffective tactic may help with headlines, it will not help the fate of any defendant.”
Trump took to a stage near the White House and exhorted supporters to “fight” – using the word more than 20 times. Trump told the crowd that “everyone here will soon be marching over to the Capitol”. About 50 minutes into the speech, many of them did.
Trump has called his speech “totally appropriate”.
Impeachment gears up
Trump’s lawyers in the upcoming Senate trial claim the former president’s rhetoric did not encourage violence and challenged whether the US constitution allows for impeachment after leaving office. Trump ended his four-year term on January 20.
Trump’s lawyers accused the nine Democratic lawmakers known as “impeachment managers” who will prosecute him of “intellectual dishonesty and factual vacuity” in their portrayal of Trump’s fiery January 6 speech.
A source familiar with the discussions told Reuters the trial will open with a four-hour debate and then a vote on whether the proceedings are unconstitutional because Trump is no longer president. The trial will then feature up to 32 hours of debate beginning on Wednesday at noon, the source added.
The nine Democrats who will serve as prosecutors hope to persuade members of the evenly divided 100-seat Senate to convict Trump and bar him from ever again holding public office.
“The intellectual dishonesty and factual vacuity put forth by the House Managers in their trial memorandum only serve to further punctuate the point that this impeachment proceeding was never about seeking justice,” Trump’s lawyers wrote in a filing in response to a brief by the House prosecutors.
Trump’s prosecution is unlikely. A failed January 26 bid to dismiss the case against Trump on the basis that it would be unconstitutional to hold a post-presidency trial drew the support of 45 of the 50 Republicans in the Senate.
To secure a conviction, 17 Republicans would need to join the Senate’s 50 Democrats in the vote, a daunting hurdle.