WASHINGTON — The first video that jurors saw Tuesday in the trial against Thomas Webster of New York, charged in the Jan. 6 riot at the US Capitol, was recorded by a camera mounted on a police officer’s chest. It shows Webster up close as he gestures at the officer and yells at him to take off his “shit,” shoves a metal bike rack set up as a protective line, swings a flagpole at the officer after a scuffle and then charges, pushing the officer down to the ground.
The second video, presented by Webster’s lawyer, was captured from a camera up high at a distance. James Monroe said his client was angry and he didn’t deny that Webster had a physical confrontation with police. But he insisted that what the government alleged was an assault was an act of self-defense — that the part of the video that showed the officer making contact with Webster’s face after Webster pushed the bike racks and the officer swatted him back depicted the officer instigating violence by punching Webster.
Webster is the first Jan. 6 defendant to put a self-defense claim to a jury. On the first day of trial, Monroe leaned into the narrative that the police officer involved, identified in court for the first time as Officer Noah Rathbun — he was referred to as “N.R.” in court papers — not only was to blame for the encounter, but he also then failed to tell investigators about it afterward, casting doubt on his credibility.
“This case is built on the lies of a young officer of the Metropolitan Police Department,” Monroe told the jury.
Webster is the sixth person charged in connection with Jan. 6 to go to trial and the fourth defendant to face a jury; the other two cases were bench trials before a judge. In the first three jury trials, the defendants were found guilty of all counts. Jurors so far haven’t been swayed by defense theories that the government potentially fabricated evidence, in the case of Guy Reffitt, convicted of bringing a handgun to the Capitol; that a defendant went inside the building to look for his friend, in the case of Thomas Robertson; and that a defendant was following orders from former president Donald Trump, in the case of Dustin Thompson.
A retired New York Police Department officer and veteran of the US Marine Corps, Webster faces a six-count indictment, including felony charges that he assaulted Rathbun with a weapon — a flagpole, in his case — that he was illegally in a restricted area with a weapon where a Secret Service protectee was present — former vice president Mike Pence — and that he interfered with police during a civil disorder. The assault count is the most serious charge, carrying up to 20 years in prison, but the weapon element boosts the potential prison time of several other charges as well.
Assistant US Attorney Hava Mirell, who delivered the government’s opening statement, agreed that the officer made contact with Webster’s face, but told the jury it was incidental and part of Rathbun’s effort to use his hand to create distance between Webster and himself.
Webster isn’t charged with going into the Capitol during the Jan. 6 breach, but Mirrell drew a line between his alleged interference with police trying to hold back the mob outside with the disruption of the “peaceful transfer of power” that took place inside. She referred to him at least twice as the “rage-filled defendant” and said the fact that he’d worn a bulletproof vest showed that “he came ready for battle.” After Webster knocked Rathbun to the ground, she said, he tried to remove the officer’s gas mask and helmet and that during the altercation the chin strap of the officer’s helmet was caught on his neck, choking him.
The self-defense narrative is one that US District Judge Amit Mehta expressed skepticism about last year. Webster had been kept in jail in the months following his arrest in February 2021, and Mehta in June granted Webster’s request to go home pending trial. Webster’s lawyer raised the punch theory at the time, and Mehta said that after watching body camera footage, it appeared the officer “modestly” reached over to push Webster away.
“I see no evidence, none, that he was punched in the face, Mr. Webster. I don't see it,” Mehta said at the time, according to a transcript.
Monroe’s opening presentation focused on his client’s record of military and law enforcement service, his lack of previous arrests, and the fact that Webster didn’t go into the building and wasn’t charged with any other violent acts or property destruction. He said Webster had taken the Marine Corps flag from his house with him to Washington, and wore a bulletproof vest he’d been issued by the New York Police Department as protection.
As Webster came onto the Capitol grounds, he saw “civilians” who had been injured and made his way up to the front of the police line to find out what was going on, according to Monroe. He suggested that Webster’s decision to swing the flagpole towards the officer and to push the officer to the ground was an exercise of “restraint” after being hit in the face — that he did those things to avoid being hit again.
The body camera footage recorded Webster yelling at officers as he came up to the front of the bike rack line: “You fucking piece of shit. You fucking commie motherfuckers man. Gonna attack Americans? No fuck that. [unintelligble] Fucking commie fuck. Come on, take your shit off. Take your shit off. You communist motherfuckers. Fuck you.”
The jury heard from Jonathan Lauderdale, a Metropolitan Police Department detective who was part of a task force investigating assaults on police at the Capitol on Jan. 6. Lauderdale said he’d been assigned to investigate a report that Rathbun filed about a hand injury he sustained from an assault inside the Capitol Rotunda, and saw the incident Webster was charged with when he went through Rathbun’s body camera footage; Rathbun hadn’t filed an injury report related to that. Lauderdale testified that when he spoke with Rathbun, the officer hadn’t initially remembered the alleged altercation with Webster outside.
Assistant US Attorney Brian Kelly asked if it was surprising that an officer wouldn't remember an assault. Lauderdale said it wasn’t. Given all the footage he’d seen, he said, “if I could forget that, I would.” He later testified that a lot of officers had forgotten things that had happened because of the “chaos.”
Lauderdale defended Rathbun’s handling of the situation, saying he gave the officer credit for showing “restraint” and not using any weapons against Webster, instead disarming him of the flagpole and retreating. Lauderdale said that when he originally watched the body camera footage, he hadn’t seen the part where Rathbun made contact with Webster’s face; it wouldn’t have changed his investigation, though, he said, since Webster was being aggressive and Rathbun had been using his hand to create distance. He pushed back on Monroe’s suggestion during cross-examination that Rathbun had violated the police department’s use of force policies.
The prosecutor attempted to ask Lauderdale, who had previously served in the Marine Corps, how the events of Jan. 6 and his work on the assault investigations made him feel as a police officer and veteran, but the judge upheld objections from Webster’s lawyer to that line of questions.
The government’s other witnesses on Tuesday included US Capitol Police officers and a US Secret Service official who offered more general testimony about the events of Jan. 6, such as where the security perimeters were around the grounds, what Congress was doing that day as far as gathering to certify the results of the 2020 election, and how the Secret Service works with Capitol Police when a protectee like the vice president visits.
US Capitol Police Officer Joanna Berger, who was on the ground on Jan. 6 and was captured at one point in the body camera footage at issue in Webster’s case, described the situation as “dangerous” and “scary” as the mob breached the police line and there were threats all around them. She said she’d been afraid to take off her helmet to put on her gas mask because people in the crowd were throwing objects at police; she was struck in the head with a wooden plank, she said.
Rathbun is expected to testify later in the week.
It took a day for Mehta to seat a jury for Webster’s trial. Before the jury was brought in on Tuesday morning, he rebuffed a renewed challenge from Monroe to holding the trial in DC. Defense lawyers in some cases have argued that the Democrat-leaning makeup of city residents and their exposure to news coverage about Jan. 6 has tainted the jury pool against defendants in these cases.
Judges so far have refused to move trials out of the city; the bar generally is extremely high for judges to agree to transfer cases out of the jurisdiction where the alleged crime took place. Mehta pointed out on Tuesday that not only was he able to seat a jury for Webster’s case, but that a relatively small proportion of potential jurors were immediately struck because they had some connection to the events of Jan. 6 or had expressed that they couldn’t judge the case fairly because of their strong beliefs about what happened.
Nearly all prospective jurors screened to hear Jan. 6 cases so far have expressed at least some awareness of the attack on the Capitol, but described widely varying degrees of knowledge; most said they had a generally negative opinion of what happened, but have often also said they could put those aside to judge whether an individual was guilty of committing specific crimes that day.
The prospective jurors who weren’t selected for Webster’s trial included a journalist who said he was at the Capitol on Jan. 6 and witnessed violence; a woman who declined to identify the federal agency she worked for but said she came into contact with the FBI; a man who works for the Government Accountability Office — an agency that does research for Congress — and whose former mother-in-law is a member of Congress (he didn’t identify her beyond saying she served in the House); and a lawyer who spent more than a decade as a federal prosecutor, including in the US attorney’s office in Washington.