Blaming Trump Won't Lessen Capitol Rioters' Responsibility But Could Prevent Their Conviction

Capitol rioters are looking to put the blame on former President Donald Trump, a legal strategy that's unlikely to lead to an acquittal but could be enough to hang a jury—if a judge allows the narrative to be heard.

At least seven people charged with being part of a mob that breached Capitol security as Congress met to certify President Joe Biden's Electoral College win have justified their actions as just following orders from the president. However, it's a flawed legal strategy because the president can't instruct someone to break the law.

"The fact that Trump, or anyone, incited them to commit a crime isn't a defense," Jens David Ohlin, interim dean and law professor at Cornell Law School, told Newsweek. "This happens all the time in the criminal law—there's an actor behind the scenes who is guilty of incitement or of being an accomplice, but that doesn't extinguish the direct perpetrator's criminal responsibility."

The riot at the Capitol on January 6 forced a temporary pause of Congress' duty to certify the election, caused large amounts of damage and killed five people, including Capitol Police Officer Brian Sicknick. Federal law enforcement committed to holding those involved accountable, and more than 100 people face an array of charges ranging from misdemeanors to felonies that carry prison sentences.

"[Trump] invited us," the defendant "took the president's bait," Trump "inspired" the riot and "I believed I was following the instructions" of the president have all been used to explain why a defendant stormed the Capitol. One defendant, Jake Angeli, also known as the "QAnon Shaman," offered to testify in Trump's impeachment trial to show he was incited by the president.

trump capitol riot defense
Blaming former President Donald Trump's incitement won’t lessen Capitol rioters’ responsibility, but it could prevent their conviction by resulting in a hung jury. Above, pro-Trump supporters storm the U.S. Capitol following a rally with Trump on January 6. Samuel Corum/Getty

"I was only following orders" is a defense that's been used before though, and Douglas Husak, a distinguished professor of law at Rutgers University, said it hasn't "done very well for people." It's most successful in cases where there's a clear hierarchical structure, such as the military or law enforcement, and in this situation, the president has no "authority to order you to do anything."

Given the sheer volume of photos and videos that prosecutors could use as evidence in the cases, Neama Rahmani, a former federal prosecutor, said Capitol riot cases will be difficult to defend. And, he wasn't confident a judge would allow attorneys to call Trump to the stand as a witness because it may be deemed irrelevant, but at least one plans to try.

"I think calling President Trump to the stand would be smart. He's a material witness," Angeli's attorney, Albert Watkins, previously told Newsweek. "I would ask him, 'What do you mean saying I'll go with you?'"

If Cornell's Ohlin were the judge, he would exclude testimony about Trump's incitement because its potential for prejudice outweighs the value it will likely have. But, a judge could allow it as it relates to the motive behind why a rioter stormed the Capitol.

Given the difficulty of defending someone who was caught on camera at the Capitol, Rahmani thinks the best bet at avoiding a guilty verdict is to try to hang the jury. Working the "blame Trump" defense into a trial could play to the sympathies of a particular juror, and Husak said he wouldn't be surprised if an attorney tried it.

Unanimous consent is required for a jury to convict or acquit, and if attorneys can convince even one that Trump is more responsible than the defendant and therefore they're not guilty, it could cause a mistrial.

"It's possible that a juror might be swayed by information about Trump's incitement," Ohlin said. "We all know that jurors consider irrelevant or tangential factors when making their decisions."