WASHINGTON — In the minds of some of former president Donald Trump’s supporters, when hundreds of rioters descended on the US Capitol on Jan. 6, it was because Trump told them to do it.
“The president of the United States of America was telling citizens something evil has happened and you all have to go fix it,” a lawyer for Jeffrey Sabol, charged with using a stolen police baton to attack an officer, told a judge.
Jacob Chansley, the “QAnon shaman” who left a note for then–vice president Mike Pence on the Senate dais that read “justice is coming” and is charged with carrying around a 6-foot pole with a metal spearhead, wouldn’t have gone to the Capitol “but for the specific words of the then-President,” his lawyer argued.
Jan. 6 involved “a massive confluence of events” — including Trump’s calls to march on the Capitol — that weren’t likely to repeat, wrote a lawyer for Joseph Padilla, who is charged with multiple attacks on police, including using a large metal-framed “Trump 2020” sign as a battering ram and throwing a flagpole.
Blaming Trump didn’t help get them out of jail, though.
In case after case, judges aren’t buying the argument that a person charged with joining the riots is less of a danger to society now because they were simply following the president's orders at the time. In some cases, the defense completely backfired, with judges essentially asking: If you can’t make good decisions for yourself, why shouldn’t you wait in jail until your trial?
“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,” US District Judge Royce Lamberth wrote in a March 8 decision denying Chansley’s request to go home. “These are not the qualities of a person who can be trusted on conditional release.”
In February, US District Chief Judge Beryl Howell ordered defendant William Chrestman to stay in jail. Chrestman, charged with conspiring with other members of the Proud Boys extremist group to obstruct Congress and interfere with police on Jan. 6, argued that he believed they had “the implicit approval of the state” — Chrestman’s lawyer noted that Trump had publicly declared that the Proud Boys should “stand back and stand by” — and were following Trump’s “instructions” on Jan. 6.
Howell wrote that it would “make a farce of the rule of law” if a president had the power to give people permission to break the law.
“Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order,” Howell wrote.
Fights over pretrial detention in the Capitol riot cases offer an early look at the government’s evidence, as well as possible defense strategies. Prosecutors have highlighted the Trump connection as proof that rioters intended to obstruct Congress’s certification of President Joe Biden’s win, which is a felony crime on its own. But they’ve pushed back on the idea that an individual rioter is any less criminally liable or less of a danger if they were taking direction from the then–commander in chief.
As much as Trump’s impeachment trial earlier this year focused on his personal responsibility for the violence and disruption, invoking that hasn’t helped defendants in the detention phase so far. Even when judges have agreed to let people go home, they’ve said the incitement argument wasn’t what persuaded them. To the extent defendants are thinking about presenting the incitement issue at trial, it’s likely to fail there, too, said Mary McCord, a former senior national security official at the Justice Department who was part of a nonpartisan task force assembled by House Speaker Nancy Pelosi to review Capitol security after the riots.
In theory, a defendant could argue to a jury that they legitimately believed they had permission from an authority figure to do something that was illegal on paper, McCord said — if, for example, a shopkeeper said they could take a candy bar and then they were charged with stealing.
“But there’s really no reason to think that the president had authority to order an insurrection,” said McCord, who now runs the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
Most people charged in the Jan. 6 riots have been allowed to go home without objection from the government. Prosecutors have focused detention requests on people charged with assaulting police, destroying property, planning in advance for violence, or taking a leadership role. The numbers change every day as more people are arrested, but as of the first week in May, roughly 16% of defendants — 67 out of 414 — were in jail; some are waiting for a detention hearing before a judge and some have pending appeals.
Judges have grappled with when it’s fair to let one person go home and keep another in jail when they’re facing similar allegations related to the same event. Defendants charged with assaulting police at the Capitol have had different outcomes depending on whether they used a weapon — and if so, what kind of weapon — how long the assault lasted, whether they posted online about their state of mind, and any number of personal details, from their community ties and employment history to whether they had a previous criminal record.
After Capitol riot defendants Eric Munchel and his mother Lisa Eisenhart appealed their pretrial detention, the US Court of Appeals for the DC Circuit in March set the bar higher for prosecutors to win these fights, spelling out that the government had to show that a defendant posed a specific future threat. The government then lost or dropped a series of high-profile detention fights, but prosecutors have pressed ahead — and still sometimes won — in other cases.
In Sabol’s case, US District Judge Emmet Sullivan wrote in an April 14 opinion that regardless of what Trump said and what his supporters believed, the government met its burden for showing that Sabol continued to be a risk and that there weren’t any release conditions — such as home detention or GPS monitoring — that would “reasonably assure” public safety. The judge highlighted evidence that Sabol came to DC equipped with tactical gear — including a helmet, steel-toed boots, and zip ties; that he was charged with specific acts of violence against police; and that he later described his actions as “fighting tyranny.”
“To be sure, to what extent President Trump’s words and actions led to the violent and shocking storming of the U.S. Capitol on January 6, 2021 is an important question, and one that could still have legal consequences for the former President and his prominent supporters,” Sullivan wrote. “But President Trump’s culpability is not before this Court.”
When Dominic Pezzola, charged in another Proud Boys conspiracy case, argued for release, his lawyer wrote that he had been “duped” and “was motivated by honorable intentions, believing he was protecting his country from a ‘stolen election’ by corrupt powers.” US District Judge Timothy Kelly in March ordered Pezzola to stay in jail, citing evidence that he led the charge into the Capitol by breaking a window with a stolen police riot shield and expressed support for future violence, among other things.
The judge wrote in a footnote that he couldn’t give weight to Pezzola’s apparent postarrest realization that “certain politicians and journalists” had lied about the election being stolen.
When US District Judge John Bates denied Padilla’s request to go home on May 4, the judge noted that his online posts after Jan. 6 seemed to show he was “invigorated” by the violence that day and that, regardless of the fact that Trump was now out of office, Padilla had described the insurrection as being part of a “war ... upon us for years.”
Some judges have made a point of explaining that they aren’t basing detention decisions on a person’s political beliefs or even their embrace of QAnon and conspiracy theories, wary of treading on the First Amendment’s free speech protections. But in deciding whether a person is likely to commit more crimes while their case is pending, judges have noted that the political climate that led to the insurrection — and, of course, Trump himself — hasn’t disappeared.
A week after Sullivan declined to release Sabol, he ordered one of Sabol’s codefendants, Jack Whitton, to stay in jail. Whitton is also charged with assaulting police at the Capitol and, according to the government, yelled at officers, “you’re going to die tonight.” The judge focused much of his opinion on the government’s specific evidence against Whitton, but he also wrote that Trump continued to make “forceful public comments about the ‘stolen election’” long after Jan. 6. Trump remains banned from Twitter and Facebook, but this week launched a new website to share messages with his supporters.
“[S]uch comments reflect the continued threat posed by individuals like Mr. Whitton, who has demonstrated that he is willing and able to engage in extreme and terrifying levels of violence against law enforcement with a chilling disregard for the rule of law and the lives of law enforcement, seemingly based on mistaken beliefs about the illegitimacy of the current administration,” Sullivan wrote.
Even in cases where judges agreed to release people over the government’s objections, they’ve said the Trump incitement argument didn’t help the defendant’s case.
Alex Harkrider is charged with carrying a tomahawk ax into the Capitol, and the government has alleged that he played a leadership role in inciting others to riot and helped pass along a canister of pepper spray. Harkrider’s lawyer had argued that his client “was responding to the entreaties of the then Commander-in-Chief, former President Donald Trump” and “did not act out of criminal intent but out of sense of duty.”
US District Judge Thomas Hogan ruled Harkrider could go home, focusing on the fact that he wasn’t charged with specific acts of violence and there wasn’t evidence of “far-reaching coordination” with other people. Harkrider’s “bragging” after Jan. 6 wasn’t proof that he was preparing for future acts of politically motivated violence, the judge said. But Hogan also indicated he was troubled by Harkrider’s argument that he was following Trump’s lead, as well as letters that his family and friends sent on his behalf that revealed “a disbelief in the legitimacy of the current government and the election.”
“They have to get some way to make people understand. The election is over,” Hogan said, according to a transcript. “And it concerns me that there's people still out there that don't accept that. And I don't know what's going to happen eventually.”
Joshua Black’s attorney argued that when his client went into the Capitol, it “was symbolic and an act of civil disobedience which he believed was warranted as the result of President Trump’s exhortations implicating the patriotic duty of his supporters.”
US District Judge Amy Berman Jackson agreed to release Black, but said her decision was based on “his actions, not his thoughts.” Black was charged with entering the Capitol with a knife, but not with using it or committing other specific acts of violence while he was inside the building. Jackson said she thought he did pose some danger to the community, but was satisfied that releasing him to home detention under strict conditions would minimize any risk.
“This defendant will not be detained because of his faith or because of his political views,” Jackson said, according to a transcript of the April 22 hearing. “But it doesn't necessarily point in favor of release either when he says he acted in accordance with what God told him to do or because he sincerely believed the election had been stolen and he had a right as a citizen to storm the Capitol and disrupt the Senators' performance of their constitutional function.” ●