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| Last Crawled | 2026-04-15 02:19:11 (5 days ago) |
| First Indexed | 2021-05-06 17:12:59 (4 years ago) |
| HTTP Status Code | 200 |
| Meta Title | Judges Are Ignoring âTrump Made Me Do Itâ Capitol Riot Defense |
| Meta Description | Accepting the argument that Trump could give people permission to riot at the Capitol would âmake a farce of the rule of law,â one judge wrote. |
| Meta Canonical | null |
| Boilerpipe Text | WASHINGTON â In the minds of some of former president
Donald Trump
âs supporters, when hundreds of rioters descended on the US Capitol on Jan. 6, it was because Trump told them to do it.
âThe president of the
United States
of America was telling citizens something evil has happened and you all have to go fix it,â a lawyer for Jeffrey Sabol, charged with using a stolen police baton to attack an officer, told a judge.
Jacob Chansley, the âQAnon shamanâ who left a note for thenâvice president
Mike Pence
on the Senate dais that read âjustice is comingâ and is charged with carrying around a 6-foot pole with a metal spearhead, wouldnât have gone to the Capitol âbut for the specific words of the then-President,â his lawyer argued.
Jan. 6 involved âa massive confluence of eventsâ â including Trumpâs calls to march on the Capitol â that werenât likely to repeat, wrote a lawyer for Joseph Padilla, who is charged with multiple attacks on police, including using a large metal-framed âTrump 2020â sign as a battering ram and throwing a flagpole.
Blaming Trump didnât help get them out of jail, though.
In case after case, judges arenât 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 canât make good decisions for yourself, why shouldnât you wait in jail until your trial?
âIf defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trumpâs orders, this shows defendant's inability (or refusal) to exercise his independent judgment and conform his behavior to the law,â US District Judge Royce Lamberth wrote in a
March 8 decision
denying Chansleyâs request to go home. âThese are not the qualities of a person who can be trusted on conditional release.â
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 âthe implicit approval of the stateâ â Chrestmanâs lawyer noted that Trump had publicly declared that the Proud Boys should â
stand back and stand by
â â and were following Trumpâs âinstructionsâ on Jan. 6.
Howell wrote that it would âmake a farce of the rule of lawâ if a president had the power to give people permission to break the law.
âEven 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,â Howell wrote.
Fights over pretrial detention in the Capitol riot cases offer an early look at the governmentâs evidence, as well as possible defense strategies. Prosecutors have highlighted the Trump connection as proof that rioters intended to obstruct Congressâs certification of President
Joe Biden
âs win, which is a felony crime on its own. But theyâve 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 thenâcommander in chief.
As much as Trumpâs impeachment trial earlier this year focused on his personal responsibility for the violence and disruption, invoking that hasnât helped defendants in the detention phase so far. Even when judges have agreed to let people go home, theyâve said the incitement argument wasnât what persuaded them. To the extent defendants are thinking about presenting the incitement issue at trial, itâs 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 â if, for example, a shopkeeper said they could take a candy bar and then they were charged with stealing.
âBut thereâs really no reason to think that the president had authority to order an insurrection,â 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 â 67 out of 414 â were in jail; some are waiting for a detention hearing before a judge and some have pending appeals.
Judges have grappled with when itâs fair to let one person go home and keep another in jail when theyâre 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 â and if so, what kind of weapon â 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 â and still sometimes won â in other cases.
In Sabolâs 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 werenât any release conditions â such as home detention or GPS monitoring â that would âreasonably assureâ public safety. The judge highlighted evidence that Sabol came to DC equipped with tactical gear â 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 âfighting tyranny.â
âTo be sure, to what extent President Trumpâs 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,â Sullivan wrote. âBut President Trumpâs culpability is not before this Court.â
When Dominic Pezzola, charged in another Proud Boys conspiracy case, argued for release, his lawyer wrote that he had been âdupedâ and âwas motivated by honorable intentions, believing he was protecting his country from a âstolen electionâ by corrupt powers.â 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 couldnât give weight to Pezzolaâs apparent postarrest realization that âcertain politicians and journalistsâ had lied about the election being stolen.
When US District Judge John Bates
denied Padillaâs request
to go home on May 4, the judge noted that his online posts after Jan. 6 seemed to show he was âinvigoratedâ 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 âwar ... upon us for years.â
Some judges have made a point of explaining that they arenât basing detention decisions on a personâs political beliefs or even their embrace of QAnon and conspiracy theories, wary of treading on the First Amendmentâs 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 â and, of course, Trump himself â hasnât disappeared.
A week after Sullivan declined to release Sabol, he
ordered
one of Sabolâs 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, âyouâre going to die tonight.â The judge focused much of his opinion on the governmentâs specific evidence against Whitton, but he also wrote that Trump continued to make âforceful public comments about the âstolen electionââ long after Jan. 6. Trump remains banned from Twitter and Facebook, but this week launched a new website to share messages with his supporters.
â[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,â Sullivan wrote.
Even in cases where judges agreed to release people over the governmentâs objections, theyâve said the Trump incitement argument didnât help the defendantâs 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. Harkriderâs lawyer had argued that his client âwas responding to the entreaties of the then Commander-in-Chief, former President Donald Trumpâ and âdid not act out of criminal intent but out of sense of duty.â
US District Judge Thomas Hogan ruled Harkrider could go home, focusing on the fact that he wasnât charged with specific acts of violence and there wasnât evidence of âfar-reaching coordinationâ with other people. Harkriderâs âbraggingâ after Jan. 6 wasnât proof that he was preparing for future acts of politically motivated violence, the judge said. But Hogan also indicated he was troubled by Harkriderâs argument that he was following Trumpâs lead, as well as letters that his family and friends sent on his behalf that revealed âa disbelief in the legitimacy of the current government and the election.â
âThey have to get some way to make people understand. The election is over,â Hogan said, according to a transcript. âAnd 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.â
Joshua Blackâs attorney argued that when his client went into the Capitol, it âwas symbolic and an act of civil disobedience which he believed was warranted as the result of President Trumpâs exhortations implicating the patriotic duty of his supporters.â
US District Judge Amy Berman Jackson agreed to release Black, but said her decision was based on âhis actions, not his thoughts.â 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.
âThis defendant will not be detained because of his faith or because of his political views,â Jackson said, according to a transcript of the April 22 hearing. âBut 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.â â |
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1. [Politics](https://www.buzzfeednews.com/section/politics)
# They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway.
Accepting the argument that Trump could give people permission to riot at the Capitol would âmake a farce of the rule of law,â one judge wrote.
By
[ by Zoe Tillman BuzzFeed News Reporter](https://www.buzzfeednews.com/author/zoetillman)
Reporting From
**Washington, DC**
Posted on May 6, 2021 at 5:09 pm
29Comments
View All 29 Comments
BuzzFeed News; Getty Images
WASHINGTON â In the minds of some of former president [Donald Trump](https://www.buzzfeed.com/natashajokic1/turmp-oval-office-gold-home-depot)âs supporters, when hundreds of rioters descended on the US Capitol on Jan. 6, it was because Trump told them to do it.
Advertisement
âThe president of the [United States](https://www.buzzfeed.com/hannahloewentheil/travelers-share-favorite-customs-abroad-fs) of America was telling citizens something evil has happened and you all have to go fix it,â a lawyer for Jeffrey Sabol, charged with using a stolen police baton to attack an officer, told a judge.
Jacob Chansley, the âQAnon shamanâ who left a note for thenâvice president [Mike Pence](https://www.buzzfeed.com/michaelabramwell/viral-mike-pence-letter-to-jan-6er) on the Senate dais that read âjustice is comingâ and is charged with carrying around a 6-foot pole with a metal spearhead, wouldnât have gone to the Capitol âbut for the specific words of the then-President,â his lawyer argued.
Jan. 6 involved âa massive confluence of eventsâ â including Trumpâs calls to march on the Capitol â that werenât likely to repeat, wrote a lawyer for Joseph Padilla, who is charged with multiple attacks on police, including using a large metal-framed âTrump 2020â sign as a battering ram and throwing a flagpole.
Blaming Trump didnât help get them out of jail, though.
Bill Clark / CQ-Roll Call, Inc via Getty Images
Then-president Trump appears on video screens before his speech from the Ellipse park south of the White House on Jan. 6.
In case after case, judges arenât 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 canât make good decisions for yourself, why shouldnât you wait in jail until your trial?
Advertisement
âIf defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trumpâs orders, this shows defendant's inability (or refusal) to exercise his independent judgment and conform his behavior to the law,â US District Judge Royce Lamberth wrote in a [March 8 decision](https://www.buzzfeednews.com/article/zoetillman/qanon-shaman-capitol-riot-judge-jail) denying Chansleyâs request to go home. âThese are not the qualities of a person who can be trusted on conditional release.â
In February, US District Chief Judge Beryl Howell [ordered](https://assets.documentcloud.org/documents/20698736/2-26-21-william-chrestman-detention-opinion.pdf) 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 âthe implicit approval of the stateâ â Chrestmanâs lawyer noted that Trump had publicly declared that the Proud Boys should â[stand back and stand by](https://www.buzzfeednews.com/article/skbaer/trump-proud-boys-stand-back-by-debate?bfsource=relatedmanual)â â and were following Trumpâs âinstructionsâ on Jan. 6.
Howell wrote that it would âmake a farce of the rule of lawâ if a president had the power to give people permission to break the law.
Advertisement
âEven 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,â Howell wrote.
Fights over pretrial detention in the Capitol riot cases offer an early look at the governmentâs evidence, as well as possible defense strategies. Prosecutors have highlighted the Trump connection as proof that rioters intended to obstruct Congressâs certification of President [Joe Biden](https://www.buzzfeed.com/michaelabramwell/trump-calls-biden-mean)âs win, which is a felony crime on its own. But theyâve 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 thenâcommander in chief.
As much as Trumpâs impeachment trial earlier this year focused on his personal responsibility for the violence and disruption, invoking that hasnât helped defendants in the detention phase so far. Even when judges have agreed to let people go home, theyâve said the incitement argument wasnât what persuaded them. To the extent defendants are thinking about presenting the incitement issue at trial, itâs 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](https://www.buzzfeed.com/mjs538/nancy-pelosi-shut-up-clip) 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 â if, for example, a shopkeeper said they could take a candy bar and then they were charged with stealing.
Advertisement
âBut thereâs really no reason to think that the president had authority to order an insurrection,â 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 â 67 out of 414 â were in jail; some are waiting for a detention hearing before a judge and some have pending appeals.
Judges have grappled with when itâs fair to let one person go home and keep another in jail when theyâre 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 â and if so, what kind of weapon â 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](https://www.buzzfeednews.com/article/zoetillman/capitol-riot-cases-jail-ruling-eric-munchel-case) 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](https://www.buzzfeednews.com/article/zoetillman/richard-barnett-pelosi-office-capitol-riot-released) or [dropped](https://www.buzzfeednews.com/article/zoetillman/capitol-riot-detention-zip-tie-eric-munchel?bfsource=relatedmanual) a series of [high-profile](https://www.buzzfeednews.com/article/zoetillman/trump-official-federico-klein-released-capitol-riot?bfsource=relatedmanual) detention fights, but prosecutors have pressed ahead â and still sometimes won â in other cases.
Advertisement
Department of Justice
Jeffrey Sabol, circled in the orange jacket, is seen here assaulting a police officer on the steps of the Capitol on Jan. 6, according to prosecutors.
In Sabolâs case, US District Judge Emmet Sullivan wrote in an [April 14 opinion](https://assets.documentcloud.org/documents/20615512/4-14-21-jeffrey-sabol-detention-opinion.pdf) 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 werenât any release conditions â such as home detention or GPS monitoring â that would âreasonably assureâ public safety. The judge highlighted evidence that Sabol came to DC equipped with tactical gear â 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 âfighting tyranny.â
Advertisement
âTo be sure, to what extent President Trumpâs 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,â Sullivan wrote. âBut President Trumpâs culpability is not before this Court.â
When Dominic Pezzola, charged in another Proud Boys conspiracy case, argued for release, his lawyer wrote that he had been âdupedâ and âwas motivated by honorable intentions, believing he was protecting his country from a âstolen electionâ by corrupt powers.â US District Judge Timothy Kelly in March [ordered](https://assets.documentcloud.org/documents/20515719/3-16-21-dominic-pezzola-opinion.pdf) 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 couldnât give weight to Pezzolaâs apparent postarrest realization that âcertain politicians and journalistsâ had lied about the election being stolen.
Advertisement
When US District Judge John Bates [denied Padillaâs request](https://assets.documentcloud.org/documents/20698741/5-4-21-joseph-padilla-detention-opinion.pdf) to go home on May 4, the judge noted that his online posts after Jan. 6 seemed to show he was âinvigoratedâ 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 âwar ... upon us for years.â
Some judges have made a point of explaining that they arenât basing detention decisions on a personâs political beliefs or even their embrace of QAnon and conspiracy theories, wary of treading on the First Amendmentâs 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 â and, of course, Trump himself â hasnât disappeared.
A week after Sullivan declined to release Sabol, he [ordered](https://assets.documentcloud.org/documents/20685165/4-20-21-jack-whitton-detention-opinion.pdf) one of Sabolâs 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, âyouâre going to die tonight.â The judge focused much of his opinion on the governmentâs specific evidence against Whitton, but he also wrote that Trump continued to make âforceful public comments about the âstolen electionââ long after Jan. 6. Trump remains banned from Twitter and Facebook, but this week launched a new website to share messages with his supporters.
â\[S\]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,â Sullivan wrote.
Advertisement
Even in cases where judges agreed to release people over the governmentâs objections, theyâve said the Trump incitement argument didnât help the defendantâs case.
Department of Justice
Alex Harkrider in the US Capitol from the DOJ affidavit
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. Harkriderâs lawyer had argued that his client âwas responding to the entreaties of the then Commander-in-Chief, former President Donald Trumpâ and âdid not act out of criminal intent but out of sense of duty.â
US District Judge Thomas Hogan ruled Harkrider could go home, focusing on the fact that he wasnât charged with specific acts of violence and there wasnât evidence of âfar-reaching coordinationâ with other people. Harkriderâs âbraggingâ after Jan. 6 wasnât proof that he was preparing for future acts of politically motivated violence, the judge said. But Hogan also indicated he was troubled by Harkriderâs argument that he was following Trumpâs lead, as well as letters that his family and friends sent on his behalf that revealed âa disbelief in the legitimacy of the current government and the election.â
Advertisement
âThey have to get some way to make people understand. The election is over,â Hogan said, according to a transcript. âAnd 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.â
Joshua Blackâs attorney argued that when his client went into the Capitol, it âwas symbolic and an act of civil disobedience which he believed was warranted as the result of President Trumpâs exhortations implicating the patriotic duty of his supporters.â
US District Judge Amy Berman Jackson agreed to release Black, but said her decision was based on âhis actions, not his thoughts.â 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.
âThis defendant will not be detained because of his faith or because of his political views,â Jackson said, according to a transcript of the April 22 hearing. âBut 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.â â
Advertisement
## More on this
- [](https://www.buzzfeednews.com/article/zoetillman/richard-barnett-pelosi-office-capitol-riot-released?bfsource=relatedmanual)
[The Man Photographed With His Foot On Nancy Pelosiâs Desk During The Capitol Riots Will Be Released From Jail](https://www.buzzfeednews.com/article/zoetillman/richard-barnett-pelosi-office-capitol-riot-released?bfsource=relatedmanual) Zoe Tillman ¡ April 27, 2021
- [](https://www.buzzfeednews.com/article/zoetillman/proud-boys-leaders-jailed-capitol-riot-conspiracy?bfsource=relatedmanual)
[Two Proud Boys Leaders Indicted In A Capitol Riot Conspiracy Are Going To Jail](https://www.buzzfeednews.com/article/zoetillman/proud-boys-leaders-jailed-capitol-riot-conspiracy?bfsource=relatedmanual) Zoe Tillman ¡ April 19, 2021
- [](https://www.buzzfeednews.com/article/zoetillman/trump-official-federico-klein-released-capitol-riot?bfsource=relatedmanual)
[Prosecutors Lost A Bid To Keep A Former Trump Official Charged In The Capitol Riot In Jail](https://www.buzzfeednews.com/article/zoetillman/trump-official-federico-klein-released-capitol-riot?bfsource=relatedmanual) Zoe Tillman ¡ April 12, 2021
- [ Zoe Tillman BuzzFeed News Reporter](https://www.buzzfeednews.com/author/zoetillman)
## Comments
- Top Comment
[gabbyk45f81d9e9](https://www.buzzfeed.com/gabbyk45f81d9e9)
4 years ago
May 6, 20217:02 pm
I still donât know how he got away scot free
22 people love this comment
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29 comments
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Most Reacted
- 
[gabbyk45f81d9e9](https://www.buzzfeed.com/gabbyk45f81d9e9)
4 years ago
May 6, 20217:02 pm
I still donât know how he got away scot free
22 people love this comment
Reply
Hide replies
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- 
[WarQueen](https://www.buzzfeed.com/warqueen)
4 years ago
May 6, 20218:49 pm
Heâs rich, white, and Republican. There are no consequences for scumbags like him.
17 people love this comment
Reply
- 
[richard1beam](https://www.buzzfeed.com/richard1beam)
4 years ago
May 12, 20217:27 am
Americans need to make Trump accountable for what he's done. If the government won't do it, the people should demand it. It is a dishonor for so many patriots who lost their careers opposing Trump, for so many covid victims who lost their lives because Trump refused to do anything...
Read more
1 people love this comment
Reply
- 
[Jamieeeeeeee](https://www.buzzfeed.com/jamiehhhhh)
4 years ago
May 6, 20216:50 pm
The number one âreasonâ Nazis used to excuse their actions when they were put on trial after the fall of Hitler was âjust following ordersâ of their leader. Spoiler alert, with their leader dead, that âreasonâ did absolutely nothing to protect them and many were executed. So if literal...
Read more
20 people love this comment
Reply
- 
[F4bul0u5](https://www.buzzfeed.com/f4bul0u5)
4 years ago
May 6, 20216:41 pm
They SHOULD stay in jail, I donât give a FUCK
15 people love this comment
Reply
Hide replies
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[thegaspasser](https://www.buzzfeed.com/thegaspasser)
4 years ago
May 6, 20218:42 pm
The only "good" seditionist is the one in prison for life...
5 people love this comment
Reply
- 
[wylyjoan](https://www.buzzfeed.com/wylyjoan)
4 years ago
May 6, 20217:55 pm
If these were not white men they wouldn't even have gotten a hearing. No excuse for what they did.
14 people love this comment
Reply
- 
[himalayall](https://www.buzzfeed.com/himalayall)
4 years ago
May 6, 20217:39 pm
Same as 'the devil made me do it'. Bullshit. You are responsible for your actions, so the consequences are yours to deal with.
12 people love this comment
Reply
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[thegaspasser](https://www.buzzfeed.com/thegaspasser)
4 years ago
May 6, 20218:44 pm
trump should have been the first held accountable. Cut off the snakes head and the body dies right along with it...
4 people love this comment
Reply
- 
[andreadoylebc](https://www.buzzfeed.com/andreadoylebc)
4 years ago
May 6, 202110:08 pm
So. Actions have consequences. As your mothers used to ask: "If your friends jumped off a cliff, would you, too?" So, if trump told you to storm the capitol & try to kill people, and you did just that, that would be on YOU. YOU had the chance to say "Oh, wait, that sounds wrong. I'm...
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[thegaspasser](https://www.buzzfeed.com/thegaspasser)
4 years ago
May 6, 20218:40 pm
That's fine and dandy. But why are the republican congressman seditionists still working on the tax payer dollar?
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[mikewilson2](https://www.buzzfeed.com/mikewilson2)
4 years ago
May 7, 202110:14 pm
That bothers me, too. The answer is Pelosi and Schumer, two of the biggest dimwits ever. They should be screaming all day every day about that. But they seemed to have let go of it so they can âworkâ with the traitors.
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- 
[LiandriWade](https://www.buzzfeed.com/liandriwade)
4 years ago
May 6, 20218:21 pm
Violent, delusional idiots are actually experiencing some minimal consequences for attacking the US and trying to overthrow democracy? Imagine that.
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- 
[sunnygrace57](https://www.buzzfeed.com/sunnygrace57)
4 years ago
May 6, 20216:36 pm
Reminds me of Bart Simpson writing on the blackboard " 'The president did it' is not an excuse" (about Bill Clinton!)
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[thegaspasser](https://www.buzzfeed.com/thegaspasser)
4 years ago
May 6, 20218:46 pm
That's exactly what Cancun Cruz and his loser buddies are doing\!
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[mikewilson2](https://www.buzzfeed.com/mikewilson2)
4 years ago
May 7, 20218:48 pm
They attacked MY countryâs capitol, tried to destroy it and prevent Congress from ratifying the result of a presidential election and killed officers in the process. They are traitors, and they were so proud of it they posted it for all to see. They have no rights. Letâem rot in jail.
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[ebony6222000](https://www.buzzfeed.com/ebony6222000)
4 years ago
May 7, 20214:57 am
Well it looks like trump doesnât have your back are you really surprised. Remember he said he was going to go to capital with his people, sucker born every minute,
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[mikewilson2](https://www.buzzfeed.com/mikewilson2)
4 years ago
May 7, 202110:19 pm
Oh, trump has their backs, and has them bent over. They are all too dumb to understand it.
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[thegaspasser](https://www.buzzfeed.com/thegaspasser)
4 years ago
May 6, 20218:46 pm
No. When the time comes, we'll be marching to homes of the Seditionist Congressman and hauling them off to prison. Right along with their Cult Leader...
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[professional\_avocado](https://www.buzzfeed.com/professional_avocado)
4 years ago
May 7, 20212:58 pm
You lot really love hold on to that phrase with your nails and teeth ignoring the rest of the speech and the toxic context 45 had been fomenting for two months...
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[ebony6222000](https://www.buzzfeed.com/ebony6222000)
4 years ago
May 10, 20219:43 pm
Trump is that guy that says he has your back but when it hits the fan he is long gone.
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| Readable Markdown | WASHINGTON â In the minds of some of former president [Donald Trump](https://www.buzzfeed.com/natashajokic1/turmp-oval-office-gold-home-depot)âs supporters, when hundreds of rioters descended on the US Capitol on Jan. 6, it was because Trump told them to do it.
âThe president of the [United States](https://www.buzzfeed.com/hannahloewentheil/travelers-share-favorite-customs-abroad-fs) of America was telling citizens something evil has happened and you all have to go fix it,â a lawyer for Jeffrey Sabol, charged with using a stolen police baton to attack an officer, told a judge.
Jacob Chansley, the âQAnon shamanâ who left a note for thenâvice president [Mike Pence](https://www.buzzfeed.com/michaelabramwell/viral-mike-pence-letter-to-jan-6er) on the Senate dais that read âjustice is comingâ and is charged with carrying around a 6-foot pole with a metal spearhead, wouldnât have gone to the Capitol âbut for the specific words of the then-President,â his lawyer argued.
Jan. 6 involved âa massive confluence of eventsâ â including Trumpâs calls to march on the Capitol â that werenât likely to repeat, wrote a lawyer for Joseph Padilla, who is charged with multiple attacks on police, including using a large metal-framed âTrump 2020â sign as a battering ram and throwing a flagpole.
Blaming Trump didnât help get them out of jail, though.
In case after case, judges arenât 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 canât make good decisions for yourself, why shouldnât you wait in jail until your trial?
âIf defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trumpâs orders, this shows defendant's inability (or refusal) to exercise his independent judgment and conform his behavior to the law,â US District Judge Royce Lamberth wrote in a [March 8 decision](https://www.buzzfeednews.com/article/zoetillman/qanon-shaman-capitol-riot-judge-jail) denying Chansleyâs request to go home. âThese are not the qualities of a person who can be trusted on conditional release.â
In February, US District Chief Judge Beryl Howell [ordered](https://assets.documentcloud.org/documents/20698736/2-26-21-william-chrestman-detention-opinion.pdf) 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 âthe implicit approval of the stateâ â Chrestmanâs lawyer noted that Trump had publicly declared that the Proud Boys should â[stand back and stand by](https://www.buzzfeednews.com/article/skbaer/trump-proud-boys-stand-back-by-debate?bfsource=relatedmanual)â â and were following Trumpâs âinstructionsâ on Jan. 6.
Howell wrote that it would âmake a farce of the rule of lawâ if a president had the power to give people permission to break the law.
âEven 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,â Howell wrote.
Fights over pretrial detention in the Capitol riot cases offer an early look at the governmentâs evidence, as well as possible defense strategies. Prosecutors have highlighted the Trump connection as proof that rioters intended to obstruct Congressâs certification of President [Joe Biden](https://www.buzzfeed.com/michaelabramwell/trump-calls-biden-mean)âs win, which is a felony crime on its own. But theyâve 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 thenâcommander in chief.
As much as Trumpâs impeachment trial earlier this year focused on his personal responsibility for the violence and disruption, invoking that hasnât helped defendants in the detention phase so far. Even when judges have agreed to let people go home, theyâve said the incitement argument wasnât what persuaded them. To the extent defendants are thinking about presenting the incitement issue at trial, itâs 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](https://www.buzzfeed.com/mjs538/nancy-pelosi-shut-up-clip) 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 â if, for example, a shopkeeper said they could take a candy bar and then they were charged with stealing.
âBut thereâs really no reason to think that the president had authority to order an insurrection,â 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 â 67 out of 414 â were in jail; some are waiting for a detention hearing before a judge and some have pending appeals.
Judges have grappled with when itâs fair to let one person go home and keep another in jail when theyâre 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 â and if so, what kind of weapon â 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](https://www.buzzfeednews.com/article/zoetillman/capitol-riot-cases-jail-ruling-eric-munchel-case) 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](https://www.buzzfeednews.com/article/zoetillman/richard-barnett-pelosi-office-capitol-riot-released) or [dropped](https://www.buzzfeednews.com/article/zoetillman/capitol-riot-detention-zip-tie-eric-munchel?bfsource=relatedmanual) a series of [high-profile](https://www.buzzfeednews.com/article/zoetillman/trump-official-federico-klein-released-capitol-riot?bfsource=relatedmanual) detention fights, but prosecutors have pressed ahead â and still sometimes won â in other cases.
In Sabolâs case, US District Judge Emmet Sullivan wrote in an [April 14 opinion](https://assets.documentcloud.org/documents/20615512/4-14-21-jeffrey-sabol-detention-opinion.pdf) 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 werenât any release conditions â such as home detention or GPS monitoring â that would âreasonably assureâ public safety. The judge highlighted evidence that Sabol came to DC equipped with tactical gear â 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 âfighting tyranny.â
âTo be sure, to what extent President Trumpâs 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,â Sullivan wrote. âBut President Trumpâs culpability is not before this Court.â
When Dominic Pezzola, charged in another Proud Boys conspiracy case, argued for release, his lawyer wrote that he had been âdupedâ and âwas motivated by honorable intentions, believing he was protecting his country from a âstolen electionâ by corrupt powers.â US District Judge Timothy Kelly in March [ordered](https://assets.documentcloud.org/documents/20515719/3-16-21-dominic-pezzola-opinion.pdf) 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 couldnât give weight to Pezzolaâs apparent postarrest realization that âcertain politicians and journalistsâ had lied about the election being stolen.
When US District Judge John Bates [denied Padillaâs request](https://assets.documentcloud.org/documents/20698741/5-4-21-joseph-padilla-detention-opinion.pdf) to go home on May 4, the judge noted that his online posts after Jan. 6 seemed to show he was âinvigoratedâ 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 âwar ... upon us for years.â
Some judges have made a point of explaining that they arenât basing detention decisions on a personâs political beliefs or even their embrace of QAnon and conspiracy theories, wary of treading on the First Amendmentâs 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 â and, of course, Trump himself â hasnât disappeared.
A week after Sullivan declined to release Sabol, he [ordered](https://assets.documentcloud.org/documents/20685165/4-20-21-jack-whitton-detention-opinion.pdf) one of Sabolâs 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, âyouâre going to die tonight.â The judge focused much of his opinion on the governmentâs specific evidence against Whitton, but he also wrote that Trump continued to make âforceful public comments about the âstolen electionââ long after Jan. 6. Trump remains banned from Twitter and Facebook, but this week launched a new website to share messages with his supporters.
â\[S\]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,â Sullivan wrote.
Even in cases where judges agreed to release people over the governmentâs objections, theyâve said the Trump incitement argument didnât help the defendantâs 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. Harkriderâs lawyer had argued that his client âwas responding to the entreaties of the then Commander-in-Chief, former President Donald Trumpâ and âdid not act out of criminal intent but out of sense of duty.â
US District Judge Thomas Hogan ruled Harkrider could go home, focusing on the fact that he wasnât charged with specific acts of violence and there wasnât evidence of âfar-reaching coordinationâ with other people. Harkriderâs âbraggingâ after Jan. 6 wasnât proof that he was preparing for future acts of politically motivated violence, the judge said. But Hogan also indicated he was troubled by Harkriderâs argument that he was following Trumpâs lead, as well as letters that his family and friends sent on his behalf that revealed âa disbelief in the legitimacy of the current government and the election.â
âThey have to get some way to make people understand. The election is over,â Hogan said, according to a transcript. âAnd 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.â
Joshua Blackâs attorney argued that when his client went into the Capitol, it âwas symbolic and an act of civil disobedience which he believed was warranted as the result of President Trumpâs exhortations implicating the patriotic duty of his supporters.â
US District Judge Amy Berman Jackson agreed to release Black, but said her decision was based on âhis actions, not his thoughts.â 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.
âThis defendant will not be detained because of his faith or because of his political views,â Jackson said, according to a transcript of the April 22 hearing. âBut 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.â â |
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