'Blame Trump' defense in Capitol riot looks like a long shot for charged supporters

Facing damning evidence in the deadly Capitol siege last month — including social media posts flaunting their actions — rioters are arguing in court they were following then-President Donald Trump's instructions on January 6.

But the legal strategy has already been shot down by at least one judge and experts believe the argument is not likely to get anyone off the hook for the insurrection where five people died, including a police officer.

“This purported defense, if recognised, would undermine the rule of law because then, just like a king or a dictator, the president could dictate what's illegal and what isn't in this country," US District Judge Beryl Howell said recently in ordering pretrial detention of William Chrestman, a suspected member of the Kansas City-area chapter of the Proud Boys. “And that is not how we operate here.”

Chrestman's attorneys argued in court papers that Trump gave the mob “explicit permission and encouragement” to do what they did, providing those who obeyed him with “a viable defense against criminal liability.”

“It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement.

Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did,” Chrestman's lawyers wrote.

Read | US says more than 300 people charged to date over Capitol riots

Trump was acquitted of inciting the insurrection during his second impeachment trial, where Democrats made some of the same arguments defense attorneys are making in criminal court.

Some Republican lawmakers have said the better place for the accusations against Trump is in court, too.

Meanwhile, prosecutors have brought charges against more than 250 people so far in the attack, including conspiracy, assault, civil disorder and obstruction of an official proceeding.

Authorities have suggested that rare sedition charges could be coming against some.

Hundreds of Trump supporters were photographed and videotaped storming the Capitol and scores posted selfies inside the building on social media, so they can't exactly argue in court they weren't there. Blaming Trump may be the best defense they have.

“What's the better argument when you're on videotape prancing around the Capitol with a coat rack in your hand?” said Sam Shamansky, who's representing Dustin Thompson, an Ohio man accused of stealing a coat rack during the riot.

Also Read | Capitol Police were warned of violence before riots: Chief

Shamansky said his client would never have been at the Capitol on January 6 if Trump hadn't “summoned him there.”

Trump, he added, engaged in a “devious yet effective plot to brainwash” supporters into believing the election was stolen, putting them in the position where they “felt the the need to defend their country at the request of the commander in chief.”

“I think it fits perfectly,” he said of the defense. “The more nuanced question is: Who is going to buy it? What kind of jury panel do you need to understand that?”

While experts say blaming Trump may not get their clients off the hook, it may help at sentencing when they ask the judge for leniency.

“It could likely be considered a mitigating factor that this person genuinely believed they were simply following the instructions of the leader of the United States,” said Barbara McQuade, a former US attorney in Michigan who's now a professor at the University of Michigan Law School.

It could also bolster any potential cases against the former president, experts say.

“That defense is dead on arrival,” said Bradley Simon, a New York City white-collar criminal defense attorney and former federal prosecutor.