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Trump wanted supporters to ‘do more than protest’ on Jan 6 and enter US Capitol, federal judge suggests

Words ‘could signal to protesters that entering Capitol and stopping the certification would be unlawful’

Andrew Buncombe
Thursday 29 December 2022 20:55 GMT
Trump rails against Jan 6 committee at Arizona rally

Donald Trump’s fiery words to his supporters on January 6 could indicate he wanted them “to do something more” than peacefully protest and actually break the law by entering the US Capitol, a federal judge has ruled.

A week after the House select committee investigating the insurrection completed its report and recommended four criminal referrals for the former president, a judge in Washington DC has made the first use of the findings in a judgment.

Judge John Bates wrote that one defendant, Alexander Sheppard, could not seek to make use of the “public authority” defence at his trial. His lawyer had sought to argue Mr Trump had in effect authorised Mr Sheppard’s actions that day.

Rather, Mr Trump’s rhetoric, including urging his supporters to “fight like hell”, could have indicated he was asking the hundreds of people gathered on The Mall in Washington DC to break the law, the judge said.

“And we’re going to the Capitol, and we’re going to try and give them the kind of pride and boldness that they need to take back our country….So let’s walk down Pennsylvania Ave,” Mr Trump had told the crowd, words that Mr Sheppard’s lawyers have tried to make use of.

But Judge Bates, an appointee of former president George W Bush, disagreed.

“These words only encourage those at the rally to march to the Capitol—nothing more— and do not address legality at all,” he said of Mr Trump’s speech.

“But, although his express words only mention walking down Pennsylvania Avenue to the Capitol, one might conclude that the context implies that he was urging protestors to do something more—perhaps to enter the Capitol building and stop the certification.”

He added: “But even if so, there is simply no indication that Trump informed the protestors that doing so would be legal, as required to make out either defence. His speech simply suggests that it would be an act of “boldness” to “stop the steal”.

Politico, which was among the first to report the judge’s Wednesday ruling, said a number of Jan 6 defendants “have sought to argue that Trump somehow blessed their decision to breach the Capitol, saying they were misled into believing their actions were legal”.

‘Accountability’ vital to prevent another Jan 6, Bennie Thompson says

In a footnote, Judge Bates referred to the recent conclusions of the January 6 committee that found Mr Trump’s actions “violated at least four federal statutes”.

He added: “The report also notes President Trump’s instruction in his speech to, for instance, ‘fight like hell’ which could signal to protesters that entering the Capitol and stopping the certification would be unlawful. Thus, the conclusions reached here—that even if protesters believed they were following orders, they were not misled about the legality of their actions and thus fall outside the scope of any public authority defence— is consistent with the Select Committee’s findings.”

The judge ruling came in the case Mr Sheppard, from Powell, Ohio, who was 21 at the time of the riot at the Capitol. Footage appears to show Mr Sheppard inside the Capitol building. He faces five criminal charges, including “obstruction of Justice/Congress”.

He has pleaded not guilty.

Alexander Sheppard (r) has tried to argue his actions were justified by Donald Trump’s speech (DoJ)

Mr Trump is also being investigated for his role in the Capitol riot, with a special prosecutor from the Department of Justice looking into his alleged actions. He has denied any wrongdoing.

Reports suggest that material and potential evidence gathered by the January 6 committee has been shared with the DoJ.

Meanwhile, the committee, which is set to be scrapped when Republicans take control of the House of Representatives in 2023, has been releasing thousands of pages of supporting evidence and transcripts.

Among the revelations was that former first lady Melania Trump did not trust her husband’s final chief of staff, Mark Meadows, and was angered by the way he’d allow “harmful” people access to him.

This conclusion was based on an interview with her long-serving ex-spokesperson and former top White House aide, Stephanie Grisham.

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