They broke through barricades, shattered windows and seized control of the U.S. Capitol building, some making death threats against members of Congress hiding inside, others brutalizing the police officers who stood in their way.
As the cases against nearly 200 of the Capitol rioters begin to wind through federal court, many of the defendants are blaming the commander-in-chief they blindly followed for the violence that left five dead during the Jan. 6 insurrection.
In court documents, media interviews and through official attorney statements, staunch supporters of former President Donald Trump who carried out the attempted coup argue they were merely doing what they thought the nation’s leader had asked, some citing a cult-like loyalty.
Though experts said it’s unlikely the Senate would call the alleged rioters as witnesses, a handful have volunteered to testify against Trump in his impeachment proceedings. Short of that, legal scholars say Congress could enter their statements about Trump’s influence into the record during the House trial.
The notion that accused insurrectionists were just following the call of the president also will not likely be enough to prove innocence in their own individual cases, legal experts say. But Trump’s influence over their thinking could lead to reduced punishments and mitigated sentences as part of plea deals, especially for those with no prior criminal histories.
"Trump didn't get in the car and drive him to D.C., but it's important to understand the context," said attorney Clint Broden, who represents Garret Miller in Texas. The Department of Justice used Miller’s own social media posts to charge him with entering the Capitol and with threatening U.S. Rep. Alexandria Ocasio-Cortez, a Democrat whom he said should be assassinated.
"You have to understand the cult mentality,” Broden said. “They prey on vulnerable victims and give them a sense of purpose. In this case, Trump convinced his cult followers that they were working to preserve democracy."
In an 80-page brief outlining arguments to support the impeachment charge, House managers focused on Trump’s statements in the months leading up to Jan. 6. Before Congress set out to certify the Electoral College results that day, Trump spoke to thousands of supporters at the Ellipse, roughly 1.5 miles from the Capitol.
He told them, “We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
The House brief says Trump aimed his supporters “like a loaded cannon.”
Trump’s defense attorneys, led by Bruce Castor and David Schoen, denied in a 14-page reply brief last week that he incited the crowd, saying his statement about fighting did not have “anything to do with the action at the Capitol.”
In a subsequent trial memorandum filed this week, Trump’s attorneys placed the blame on the rioters, calling them “a small group of criminals who deserve punishment to the fullest extent of the law.”
In charging documents and court records, the FBI cites social media feeds, media statements and its own agents’ interviews with at least 29 people arrested for taking part in the riot who said they came to Washington to support Trump or were doing what he told them to do that day.
There’s Robert Bauer, who told FBI agents he marched to the Capitol from the rally where he heard Trump speak because the president told him to.
Jorge Riley, who traveled to Washington from Sacramento, posted on Facebook that morning, “I’m here to see what my President called me to DC for.” He ended up charged for violently entering the Capitol.
And Jacob Chansley became perhaps the most recognizable after he entered the Capitol and sat in the vice president’s chair, bare chested with his face painted and a horned, fur-lined headdress atop his head. He told the FBI he came to Washington because Trump asked all “patriots” to do so.
After Trump left office without pardoning Chansley and other rioters, Chansley’s lawyer said his client would be willing to testify against Trump in the impeachment hearing.
“Many members of the mob that attacked Congress and the Capitol understood themselves to be doing exactly what Trump wanted and directed them to do – ‘fight like hell’ and do whatever was needed to ‘Stop the Steal,’" Michael Stokes Paulsen, a law professor at the University of St. Thomas and a conservative constitutional law scholar, said in an email to USA TODAY.
“Trump's words and actions stand on their own, of course,” Paulsen said. “But the fact that they were understood by many as intended to produce precisely the actions that occurred tends to confirm Trump's responsibility.”
Robert Sanford traveled to Washington D.C. on a day trip from Pennsylvania on a bus with about 50 other conservatives, his lawyer said, with no intention of rioting or storming the Capitol on Jan. 6.
Then, the former firefighter heard the speeches.
Sanford was among thousands, riled up by Trump and his political allies, who marched from the rally earlier that day directly to the Capitol, where the riot eventually turned deadly. The group, including Sanford, “had followed the President’s instructions,” according to federal charging documents.
The FBI arrested Sanford after a viral video showed him hurling a fire extinguisher into a group of police officers.
"The president and his groups rallied the people that did not plan on doing anything," said Enrique Latoison, an attorney who represents Sanford. "The president was the adhesion. He's the glue that got all of these people together."
While Latoison acknowledges the president’s influence over his client, he does not believe that alone is a plausible defense, especially in Washington D.C., where juries could be more liberal. President Joe Biden won 92% of the vote there in November.
"I do not know if that's a legitimate defense to say ‘my commander-in-chief made me do it,’" he said. "We are not in the middle of Montana where folks may relate to being persuaded by the president."
Christopher Grider, too, pointed to Trump’s role in his actions that day. Grider, of Eddy, Texas, has been charged with destruction of government property, aiding and abetting, entering and remaining in a restricted building, disorderly and disruptive conduct, obstruction of an official proceeding and an act of physical violence in the Capitol grounds, among other federal crimes.
Following the riot, Grider, 39, appeared on KWTX, where he said he did it for Trump.
"The president asked people to come and show their support,” he said. “I feel like it’s the least that we can do, it’s kind of why I came from central Texas all the way to D.C.”
In a Parler post before the riot, which the FBI collected and included in charging documents, Bruno Cua shared one of Trump's tweets and wrote, "President Trump is calling us to FIGHT!" Cua is now charged with assaulting a federal officer and other crimes stemming from the riot.
Kenneth Grayson was even more explicit about it. Court records show that in Facebook messages that the FBI obtained with a search warrant, Grayson told family members and associates he was preparing to travel to Washington from Pennsylvania for the Jan. 6 event.
“I’m there for the greatest celebration of all time after Pence leads the Senate flip!!” he wrote. “OR IM THERE IF TRUMP TELLS US TO STORM THE (expletive) CAPITAL IMA DO THAT THEN!”
Stanley Greenfield, who represented Grayson in Pittsburgh, said his client was responding to the president and did not intend to cause any violence. He noted that his client did not strike or hit anyone – Grayson was merely seen entering and walking around, Greenfield said.
"He was going because he was asked to be there by the president," Greenfield said. "He walked in with the crowd. But he went there, yes, with the invitation of the president. He just wanted to be a part of it."
Though it’s unlikely to help in their cases, the statements that those charged in the riot have made about Trump prompting their actions could play a role in his impeachment trial, experts said.
“I would firmly expect the managers to use some of those statements,” said Frank Bowman, a University of Missouri law professor the author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. “They’re not going to call them as witnesses, but they’re surely going to use them. It’d be crazy not to, and I don’t think they’re crazy.”
The Senate has not determined whether any witnesses will be called, and those criminally accused are less likely candidates than administration officials.
Witnesses are potentially risky because they could say something crazy or off color during live testimony in the Senate proceeding. Because they are facing criminal charges, they could also potentially plead the fifth and render their testimony useless or seek a deal to testify, said Princeton political science professor Keith Whittington.
But Bowman said the statements of those charged helps rebut the assertions from Trump’s legal team.
“If the president’s lawyers are going to argue that he wasn’t convincing anyone to engage in insurrection, that he wasn’t trying to induce any irregular behavior, it rather runs against that claim to show that there are people who took exactly that message,” he said.
If Trump knew the rioters were acting at his behest but didn’t ask them to stop, it could further make the case against him, McQuade said.
McQuade pointed to a statement during Trump’s first presidential campaign that he could shoot someone on 5th Avenue and not lose supporters as an indicator of his awareness of the persuasive power he has over his supporters.
“If he was aware that they were storming the Capitol on his orders, that would seem to be pertinent to his intent,” McQuade said.
Whittington said House managers are less likely to focus on Trump’s intent. Instead, they will try to lay out what happened that day and Trump’s culpability in it. The statements made by those who participated and have been charged are part of that.
Whittington said they are helpful to the impeachment case and add weight because they come from supporters of Trump rather than his critics.
“It’s important that those were people who did storm Capitol, so they engaged in this behavior that leads us to the place we’re at now,” he said. “They’re allies of his, and they are people who take his words very seriously, so it’s useful to know what they understood him to be saying.”
Experts predict a defense strategy called the “public authority defense” could become one key factor in the punishments judges hand down to convicted rioters.
The argument is used when defendants claim a government agency or official – in this case, the president himself – directed them to commit a crime. As these defendants cite cult-like influences and QAnon conspiracy theories, the defense could figure prominently in some of the cases, said Ziv Cohen, a clinical psychiatrist who testifies as an expert witness in criminal trials.
Cohen said the rioters could essentially argue that they cannot be held personally responsible – or criminally culpable – because they believed they were following the orders of Trump, Sen. Josh Hawley and other officials in the former president’s inner circle.
Whether the defense could succeed is a different story. Cohen doubts juries will be lenient – or use this as a pathway toward a not-guilty verdict. But he does believe it could be used as a mitigating factor to reach a favorable plea or reduced sentence.
“A person could plausibly claim some confusion or belief that they were working at the behest of the U.S. government,” Cohen said. “You have a president, and people close to the president, who are asking people to come to Washington for a rally, and there’s this drumbeat about preventing the election from being stolen.”
Cohen pointed to the example of E. Howard Hunt, a former high-ranking CIA officer appointed to the Nixon White House staff who directed his underlings to carry out a host of illegal activities exposed during the Watergate scandal. When caught, they cited the public authority defense and essentially argued that Hunt directed them to do it.
“It’s classically used in a sting operation, but it could be applied to a public figure,” Cohen said. “People are persuaded by public figures, who are speaking from a position of authority and have private access to knowledge.”
Many of these defendants also can simultaneously point to a mental disorder like substance abuse, depression or bipolar disorder. They could argue that made them particularly vulnerable to listen to the dangerous rhetoric.
Daniel Richman, a former federal prosecutor and now a law professor at Columbia University, said shifting blame to Trump is unlikely to work as a defense in a criminal case.
“If you’re, for instance, with a weapon in the Capitol, the fact that the president allegedly invited you or your belief that the president invited you is hardly relevant to the charges,” he said. “I imagine some defense lawyers may want to try and maybe some judges will be sympathetic and let them do so, but it doesn’t seem terribly relevant to the range of charges I’m seeing.
“The fact that I got riled up because my side lost or I got riled up because I thought there was alleged electoral fraud really doesn’t give you license to do violence or to do property damage.”
Contributing: Dinah Voyles Pulver
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