Rioters charged with insurrection and their attorneys agree: This is all Donald Trump’s fault. As the former president’s attorneys take to the Senate floor to absolve their client of inciting an insurrection, some of the most damning witnesses against him are the MAGA fanatics who say they were only following the commander-in-chief’s orders when they rampaged into the Capitol on Jan. 6.
In court filings and in interviews, attorneys for alleged rioters have argued that their clients’ culpability for the riot comes at a discount because they were inspired by Trump’s words to march down to the Capitol. It’s a novel defense but one that Trump’s former impeachment attorney, Alan Dershowitz, thinks is “frivolous” and doomed to failure. So what are the accused saying about how Trump inspired and directed the Capitol insurrection?
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Entrapped by Trump: Attorneys for accused rioters Emanuel Jackson and Florida firefighter Andrew Williams have blamed Trump for pushing their clients into the Capitol building by calling it an “event inspired by the President of the United States” and accusing him of having “encouraged despicable behavior.”
In at least one case, an accused rioter’s legal team is using that argument not just to secure their client’s freedom while awaiting trial but as possible legal strategies at trial.
Lisa Eisenhart, part of a mother-son alleged rioter duo charged with breaking into the Capitol toting zip ties, is a diehard Trump fan who believes “This country was founded on revolution” and would “rather die a 57-year-old woman than live under oppression.” But Eisenhart still doesn’t think she should be found guilty by virtue of a novel defense.
Eisenhart’s attorney Jonathan Farmer said his client, and “others similarly situated” who were in the Capitol but committed no violence, would use a defense of “entrapment by estoppel” in a memo arguing for her release from custody before trial. The defense argues that defendants can’t be held legally responsible for criminal acts if “a government agent announced that the charged conduct was legal” and a defendant had a reasonable, good-faith belief that that was the case.
In laying out the defense, Farmer argued that Trump was the “government agent” instructing his client to go into the Capitol. His memo opposing detention noted that Trump “ramped up the rhetoric” about a “stolen” election after President Joe Biden won the November election, teased the Jan. 6 rally with “incendiary language about the pending doom of the country,” and told them “they should march to the Capitol.” As evidence that Eisenhart and others “heard the call from the commander-in-chief” to head into the Capitol, her attorney cited Senate Minority Leader Mitch McConnell’s own comments saying that rioters were “provoked by the president.”
Eisenhart’s son, Eric Munchel, hasn’t explicitly embraced the “entrapment” defense in court documents but his attorney did cite Trump’s incendiary comments both before and during the Jan. 6 “stop the steal” rally to suggest that Munchel was merely following a president who “ invited the citizens who had gathered to go to the Capitol.”
Unlikely co-defendants: In at least one case, an alleged rioter’s attorney used Trump’s incitement to try and show his client’s actions in the Capitol weren’t premeditated. Prosecutors charged Patrick McCaughey with assaulting a Washington, D.C., Metropolitan police officer, among other charges, after video of him allegedly crushing Officer Daniel Hodges with a police shield went viral.
In arguing for McCaughey’s release from custody before trial, his attorney Lindy Urso wrote that “all indications are that this is a one-time event” that was spontaneous rather than premeditated. As evidence, Urso suggested her client headed to the Capitol as a result of incitement by a “de facto unindicted conspirator”—Trump—rather than as part of a plan McCaughey had developed himself.
Strength in numbers: Other attorneys have tried to cast their clients’ false belief in a stolen election as, if not valid, at least a widely shared one in an apparent attempt to paint them as responding in good faith to commonly held beliefs and instructions from on high.
Corey Endo, a federal public defender, wrote in a detention memo that her client Ethan Nordean was “Egged on by Donald Trump, other politicians, his legal advocates, and news media,” and pointed to the “thousands of people” who came to Washington at their behest to show that Nordean’s beliefs were “not unique.”
Only following orders: Dominic “Spazzo” Pezzola, the Proud Boy allegedly seen smashing through a window with a police shield, tried an interesting spin on the “Trump made me do it” defense by citing his military service. In a detention memo filed on Thursday, Pezzola’s attorney said “Spazzo” was “responding to the entreaties of the then commander in chief” when he entered the Capitol and did “not act out of criminal intent but out of conscience, albeit a frighteningly confused and distorted sense of conscience.”
Pardon flop: The verdict on whether “entrapment by estoppel” and “Trump made me do it” defenses will work for the alleged rioters in court is still out, but we already know they’re a failure for those who’ve used it to try and spring themselves through the pardon process.
Jenna Ryan, a Trump-loving real estate agent from Texas charged in connection with the riots, appealed to Trump during a CBS interview when he was still in office.
“I thought I was following my president,” Ryan told a CBS reporter, while pleading for a pardon. “I thought I was following what we were called to do. Flying there—he asked us to fly there, he asked us to be there, so I was doing what he asked us to do.”
An attorney for Jacob Chansley, the QAnon devotee seen wearing animal skins and horns in the Capitol, asked for a pardon for his client and characterized the presence of the “Q-Shaman” in Congress as the result of Chansley having “accepted President Trump’s invitation to walk down Pennsylvania Avenue to the Capitol.”
When a pardon wasn’t forthcoming, Chansley’s legal team offered to have him testify at Trump’s impeachment trial about the former president’s role in inciting the riot.
MAGA is a one-way street: Chansley and Ryan, both stiffed on pardons, have had to learn a difficult lesson about Trump that close associates learned a long time ago: When it comes to Trump, loyalty only goes up to the boss, never down.
By Tuesday afternoon, Trump’s legal team had kicked off its impeachment-trial defense on Capitol Hill by throwing the violent MAGA diehards under the bus and trying to rinse the ex-president’s hands of any moral responsibility in front of a national audience.
“So you’ll never hear anybody representing former President Trump say anything at all other than… that those persons responsible should be prosecuted to the fullest extent that our laws allow, and indeed, I have followed some of those cases and those prosecutions, and it seems to me we’re doing a pretty good job of identifying and prosecuting those persons who committed those offenses,” Trump attorney Bruce Castor said on the Senate trial’s opening day.
Trump advisers did not respond to requests for comment on this story. But others who’ve counseled the former president in the past, predictably, didn’t sound too impressed.
“The Devil made me do it, the Twinkie made me do it, the president made me do it. So how do [the suspects] account for the fact that the vast majority of people who attended the rally didn’t do it?” Alan Dershowitz, the celeb attorney who served on Trump’s legal defense during the first impeachment trial (but repeatedly declined to lead the legal team this time around), said on Tuesday evening. “[Trump’s] not their commander-in-chief; he was only the commander-in-chief of the U.S. armed forces. I think it’s a frivolous defense. It won’t work, and it shouldn’t work.”
