Judge casts doubt on January 6 defense strategy of calling Trump to the stand

By Holmes Lybrand, Andrew Millman and Katelyn Polantz, CNN

A federal judge appeared unconvinced on Wednesday that Donald Trump should be allowed to testify at a trial of a US Capitol riot defendant who is arguing the former President could be a helpful witness.

Judge Reggie Walton said that having Trump and his allies testify would not necessarily help Dustin Thompson’s defense, which plans to argue that Trump and others goaded his supporters to storm the Capitol. Thompson is accused of entering the Capitol and stealing a coat rack.

“I just (didn’t) see what more you get having them come into court to testify,” Walton said during the hearing, pointing out the defense could play videos of what Trump and others said at a rally that preceded the attack.

A Justice Department prosecutor agreed with Walton during the hearing.

Many of the defendants facing criminal charges for their role in the January 6 insurrection have tried to share blame with Trump or shift blame to him. While some federal judges have lambasted the former President, often not by name, and suggested he bears some responsibility for what happened that day, they also have said the defendants should be held responsible for their own actions.

Yet now, judges must confront the possibility that defendants may try to use Trump’s gravity — and strong political condemnation of him in the nation’s capital — before juries.

Federal trials against alleged January 6 rioters are scheduled to begin at the end of next month.

Thompson’s attorney, Samuel Shamansky, previously asked Walton if the US Marshals Service could be used to deliver subpoenas to Trump and several others, including Rudy Giuliani, Steve Bannon and Sidney Powell. That opened up the conversation on Wednesday about Trump and his associates.

Shamansky said he doesn’t dispute what Thompson did that day but argued that “the question is how and why he gets there.” He said that rioters were “whipped up into a frenzy” by Trump and his allies.

In another case headed to trial, the Justice Department has argued to block the possible defense that Trump gave permission for the attack on the Capitol.

The judge in the case — for riot defendant Aaron Mostofsky — has not yet resolved whether it will be allowed.

A third judge in the court, Beryl Howell, has already rejected the legal argument that a defendant could have been entrapped into crime because of Trump’s words on January 6, prosecutors have noted. The President doesn’t have the power to allow crime and waive laws at will, Howell wrote nearly a year ago when she decided to keep in jail a January 6 defendant awaiting trial.

Walton put it more bluntly on Wednesday.

“Just because the Pope says it,” doesn’t mean a Catholic can commit a crime, he said in court. “I’m not convinced.”

Walton is set to issue a written order in response to Thompson’s request in the coming days. His trial is set to begin in April.

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