Federal Prosecutors Now Explicitly Tying Trump’s Speech to Capitol Riots in Insurrection Cases

The Federal Docket

February 11, 2021

Washington D.C., January 30, 2021: Fences were erected around Capitol after January 6 when pro-Trump protesters rallied in DC ahead of Electoral College vote count and some stormed into the Capitol.

As reported by CNN, federal prosecutors going against defendants charged with rioting at the Capitol have begun explicitly connecting the riot to Trump’s speech on January 6, where he directed his supporters to go to the Capitol to protest the certification of the election results or, in other words, to “stop the steal.” The connection between Trump’s words and his supporters’ actions at the Capitol was a topic the Department of Justice appeared to be avoiding while Trump was still in office. The recent acknowledgment comes while Trump is on trial in the Senate for inciting insurrection.

In one case, for example, prosecutors have alleged that Jessica Watkins, a leader of a rightwing paramilitary group called the Oath Keepers, “indicated that she was awaiting direction from President Trump” before she and others stormed the Capitol. While prosecutors had previously been cautious in connecting Trump’s speech to the defendants, defendants charged with attacking the Capitol have been claiming from the beginning that they were acting pursuant to Trump’s orders.

Prosecutors tying the Capitol riot to to Trump’s speech will make headlines given that Trump is in the middle of an impeachment trial for his role in inciting the riot. However, these prosecutors may be taking a gamble. Prosecutors generally must prove that a defendant was acting with a criminal intent in order to obtain a conviction, and many of these defendants will argue that they believed they were acting lawfully under the direction of the then-sitting president of the United States. In a court document arguing that Watkins should be held in jail, without bond, for example, the prosecutors include communications from Watkins indicating she instructed others not to act “unless the POTUS himself activates us.” The document stresses Watkins’ “concern about taking action without his backing.”

While many people are rightfully horrified by the events from January 6, and D.C.-area juries will likely be skeptical of defendants charged with storming the Capitol, some defendants may be able to rely on Trump’s words to avoid a conviction. A jury doesn’t have to agree with a defendant’s actions or motivations to find that the government has not proved every element of its case, including the defendant’s intent, beyond a reasonable doubt. And it only takes one juror to avoid a conviction.

Our firm has written about the kinds of charges being brought against the Capitol Hill rioters.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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