Federal probe of rioters’ crimes is looming
New details sure to emerge on Trump’s insurrection role
The acquittal of former President Donald Trump at his second impeachment trial will hardly be the last or decisive word on his level of culpability in the assault on the Capitol last month.
While the Justice Department officials examining the rash of crimes committed during the riot have signaled that they do not plan to make Trump a focus of the investigation, the volumes of evidence they are compiling may eventually give a clearer — possibly damning — picture of his role.
Case files in the investigation have offered signs that many of the rioters believed, as impeachment managers have said, that they were answering Trump’s call on Jan. 6. The inquiry has also offered evidence that some pro-trump extremist groups, concerned about fraud in the election, may have conspired together to plan the insurrection.
“If this was a conspiracy, Trump was the leader,” said Jonathan Zucker, the lawyer for Dominic Pezzola, a member of the farright Proud Boys group who has been charged with obstructing police officers guarding the Capitol. “He was the one calling the shots.”
As the sprawling investigation goes on — quite likely for months or even years — and newly unearthed evidence brings continual reminders of the riot, Trump may suffer further harm to his battered reputation, complicating any post-presidential ventures. Already, about a dozen suspects have explicitly blamed him for their part in the rampage — a number that will most likely rise as more arrests are made and legal strategies develop.
Some defendants, court papers show, said they went to Washington because Trump encouraged them to do so, while others said they stormed the Capitol largely because of Trump’s appeal to “fight like hell” to overturn the election. One man — charged with assaulting the police — accused the former president of being his accomplice: In recent court papers, he described Trump as “a de facto unindicted co-conspirator” in his case.
This past week, prosecutors said that Jessica M. Watkins, a member of the Oath Keepers militia group, had been “awaiting direction” from Trump about how to handle the results of the election, only days after votes were cast. In court papers, the prosecutors quoted a text message the defendant, Watkins, sent to an associate on Nov. 9, saying that Trump had “the right to activate units.”
“If Trump asks me to come,” Watkins cryptically wrote, “I will.”
Legal scholars have questioned the viability of faulting Trump in cases connected to the Capitol attack, noting that defendants would have to prove not only that they believed he authorized their actions, but also that such a belief was reasonable.
But even if trying to offload responsibility onto Trump may prove ineffective at a trial, legal experts have acknowledged it might ultimately help mitigate the punishment for people convicted of a crime at the Capitol.
More than 200 people altogether have been charged with federal crimes in the attack, most on relatively minor counts like disorderly conduct and unlawful entry. The one place where Trump might face charges connected to the election is Fulton County, Georgia, where the local district attorney has announced an investigation into whether he interfered with state officials in charge of counting votes.
The “Trump made me do it” defense made a cameo appearance in a remarkable split-screen moment Wednesday: As House impeachment managers were describing Pezzola’s role in the Capitol attack (noting that he had used a plastic riot shield to smash a window at the building), at the exact same time, Pezzola himself was in court asking a judge to release him pending trial — in part because he had been following Trump’s orders.
Pezzola, a former Marine, did not consider himself a violent criminal, but instead a “patriot” who responded to “the entreaties of the-then commander in chief, President Trump,” his lawyer, Zucker, had written in a court filing that morning. When Trump made baseless claims that the election had been stolen, Pezzola felt a duty to help, Zucker wrote, adding that his client thus became “one of millions of Americans who were misled by the president’s deceptions.”
Trump’s impeachment lawyers argued in the Senate this past week that his fiery speech before the riot was protected by the First Amendment, and was not an incitement to violence. Pezzola’s claims that he was acting “out of conscience” in storming the Capitol may be true, they are also — for a man facing serious time in prison — self-serving.
Still, other rioters charged in the Capitol attack have made similar claims in trying to stay out of jail, arguing that they cannot be considered a danger to the community given that Trump is out of office and thus, they say, unable to incite them further.
In a separate case, a lawyer for Patrick Mccaughey, accused of assaulting two police officers, wrote in a court filing this month that Trump was “somewhat of a de facto unindicted co-conspirator.”
Mccaughey, whose story was featured at the impeachment trial this past week, pushed his way to the front of a mob fighting to break through police lines at the Capitol and pinned one officer against a door, nearly choking him.
But his lawyer, Lindy R. Urso, argued in a court filing that Mccaughey would, like others in the crowd, have protested peacefully had Trump not incited them to violence.
The efforts to blame Trump are, of course, a calculated legal defense.
Ethan Nordean, a leader of Proud Boys in Seattle, was “egged on” by Trump into believing the election was stolen, his lawyer wrote in a court filing. But prosecutors said Nordean’s online posts suggest he and Proud Boys planned before Jan. 6 to breach police at the Capitol in disguise, not in emblematic black-and-yellow colors.