Just Security Analysis: DOJ Will Use Trump’s Continued Embrace Of Jan. 6 Rioters To Help Prove Its Case
As recent Justice Department court filings make clear, Trump’s repeated embrace of the January 6 rioters is a part of the federal case against him. A new analysis on Just Security examines Trump’s connection to Jan. 6 rioters and discusses the legal implications in Special Counsel Jack Smith’s federal case against Trump.
The analysis was written by Tom Joscelyn, Amb. Norman Eisen (ret.), and Democracy 21 President Fred Wertheimer. Joscelyn was a professional staff member on the House Jan. 6th Committee and was a principal author of the Committee’s final report.
“Every time Trump lionizes the ‘January 6 Choir’ or other January 6th rioters, he is simply helping the government build its case,” the authors write. “These statements by the former president may effectively help show the jury – as well as the court of public opinion – that Trump had the requisite criminal intent in the actions he took to overturn a democratic election.”
Read the analysis on Just Security or below.
Just Security | 11/10/2023
DOJ Will Use Trump’s Continued Embrace of Jan. 6 Rioters to Prove Its Case
By: Tom Joscelyn, Norman Eisen, and Fred Werthimer
At a rally in Houston, Texas earlier this month, former President Donald Trump stood on stage and solemnly saluted as the song “Justice for All” played. That song is a collaboration between Trump and a group known as the “January 6 Choir” – men who have been imprisoned for their allegedly (and in some cases already proven) criminal actions during the attack on the U.S. Capitol. In the recording, the “choir” performs the Star Spangled Banner as Trump recites the Pledge of Allegiance. When the song finished playing at the rally, Trump spoke as if members of the “choir” were martyrs. “I call them the ‘J-6 hostages,’ not prisoners,” Trump said. “I call them the hostages, what’s happened. And you know, it’s a shame.”
This wasn’t the first time that Trump featured the “January 6 Choir” at one of his rallies. And it likely won’t be the last.
But it is a safe bet that Special Counsel Jack Smith and his team took notice. As recent Justice Department court filings make clear, Trump’s repeated embrace of the January 6 rioters is a part of the federal case against him. The government states:
“[I]n the years since January 6, despite his knowledge of the violent actions at the Capitol, the defendant has publicly praised and defended rioters and their conduct. … The defendant’s decision to repeatedly stand behind January 6 rioters and their cause is relevant to the jury’s determination of whether he intended the actions at the Capitol that day.”
On Monday, the government’s lawyers filed an opposition to the Trump defense team’s attempt to strike mentions of “the actions at the Capitol on January 6, 2021” from the federal indictment. Trump’s lawyers argued that he is not charged with “responsibility” for those actions and all references to them should be stricken from the indictment because they are supposedly prejudicial and inflammatory.
Smith’s team fired back, describing Trump’s argument as “disingenuous” and laying blame for the Capitol attack squarely on the former president’s shoulders. The government’s lawyers write that Trump’s argument is a “meritless effort to evade the indictment’s clear allegations” that the former president is “responsible for events at the Capitol on January 6.”
Importantly, the Special Counsel’s office argues that the events at the Capitol are “relevant” to Trump’s “intent and motive,” as “[t]he four charges against the defendant variously require proof that he acted knowingly and corruptly in his efforts to overturn the election’s results.” Trump’s “actions before, during, and after the riot at the Capitol are powerful and probative evidence of his motive and intent for each conspiracy and for the obstruction charge,” the government’s lawyers write. (Trump is charged with three counts of conspiracy — including to defraud the United States, obstruct the January 6 congressional certification proceeding and interfere with voters’ constitutional right to have their votes counted – as well as a fourth count, obstruction of and attempt to obstruct the January 6 official proceeding.) In a separate brief, filed the same day, the government also emphasizes that it plans to show Trump exploited the violence as a means to obstruct the congressional proceedings (see p. 34).
One way the government says it will prove Trump’s “motive and intent” across the different charges is by pointing to his actions after he left office. Despite Trump’s “knowledge of the violent actions at the Capitol,” he “has never wavered in his support of January 6 offenders,” the Special Counsel writes. Trump has described the rioters as “great patriots,” said he was “inclined to pardon many of them” (possibly including Proud Boys leader Enrique Tarrio, who has been convicted of seditious conspiracy and other serious charges and sentenced to 22 years in prison), and described January 6 as “a beautiful day.”
Trump has also associated himself with the “January 6 Choir,” which the government describes as “a group of particularly violent January 6 defendants detained at the District of Columbia jail.”
Indeed, in March, we profiled the twenty January 6 defendants who were imprisoned in Washington, D.C. at the time. We found that seventeen of the twenty were accused of assaulting law enforcement officers during the attack on the U.S. Capitol. The remaining three inmates, which included a Proud Boys member and an Oath Keepers member, were charged with other serious crimes and one of them had been already convicted.
We noted in our report that at least some of these twenty defendants were likely members of the “January 6 Choir,” though we could not be sure which specific inmates had participated.
Conspicuously, neither Trump nor the choir’s promoters identified the performers while marketing their rendition of the national anthem. Subsequent to our profiles, the Washington Post identified five of the men who participated in the choir. (Three of the five men identified by the Post were imprisoned in D.C. as of March, when we published our analysis.) And the Special Counsel cited the Post’s account in his motion this week.
Four of these five January 6 choir members have pleaded guilty to felonies and other crimes. The fifth was found guilty of multiple felonies after a jury trial. They are:
Julian Khater – In Sept. 2022, Khater pleaded guilty “to two counts of assaulting, resisting, or impeding officers with a dangerous weapon.” Khater assaulted two law enforcement officers, Brian Sicknick and Caroline Edwards, with pepper spray. Sicknick passed away the following day. Khater was subsequently sentenced to 80 months in prison.
Jonathan Mellis – In June 2023, Mellis pleaded guilty to “assaulting, resisting, or impeding certain officers using a dangerous weapon, a felony offense.” He assaulted law enforcement officers with a large wooden stick.
Shane Jenkins – After a jury trial in D.C. in Mar. 2023, Jenkins “was convicted of seven felonies and two misdemeanors, including assaulting law enforcement with a deadly or dangerous weapon.” According to the Department of Justice, Jenkins “joined other rioters in a concerted assault on” law enforcement officers defending the entrance to the Lower West Terrace Tunnel of the Capitol. “As other rioters also attacked,” the DOJ has explained, “Jenkins hurled nine different objects at the officers, including a solid wooden desk drawer … a flagpole, a metal walking stick, and a broken wooden pole with a spear-like point at police in the Tunnel.” Jenkins later bragged on social media about his actions, referring to the police as “trash.”
William Chrestman – In October, Chrestman, who is a member of the Proud Boys, pleaded guilty “to obstruction of an official proceeding and threatening a federal officer, both felonies.” Chrestman carried an axe handle during the attack on the Capitol and surged, along with other Proud Boys, during the “initial breach.” Chrestman confronted U.S. Capitol Police Officers who were trying to restrain the crowd, yelling: “Hey, if you shoot, I’ll f— take your a— out.” Using his axe handle, Chrestman also prevented officers from lowering a metal door inside the Capitol, thereby allowing other rioters to stream through the building. Afterward, Chrestman bragged about his actions, saying: “We had the cops running through the f— State Building [sic], dude, trying to slam the emergency doors, like, the big garage door-type ones that segregate off the rooms, and we were throwing f— chairs under there to block it dude, to keep going down… The cops were legitimately scared for their f— lives.”
Ryan Nichols – Earlier this week, Nichols, an ex-Marine, pleaded guilty to two felony offenses: “obstruction of an official proceeding and assaulting, resisting, or impeding certain officers.” Nichols assaulted “multiple law enforcement officers” with pepper spray inside the tunnel on the Capitol’s Lower West Terrace. During the attack, Nichols exhorted others, yelling “Get in the building, this is your country, get in the building, we will not be told ‘No’.” He also shouted: “This is the second revolution,” “This is not a peaceful protest,” and “If you have a weapon, you need to get your weapon!” In a video he posted to Facebook the next day, Nichols tried to justify his violent actions by citing his election grievances, which Trump stoked, saying:
So, yes, I’m calling for violence! And I will be violent! Because I’ve been peaceful and my voice hasn’t been heard, I’ve been peaceful and my vote doesn’t count. I’ve been peaceful and the Court’s [sic] won’t hear me. So you’re f— right, I’m going to be violent now! And I’m here in Washington, D.C. and it just got started. So if you want to know where Ryan Nichols stands, Ryan Nichols stands for violence.
The government explicitly blames Trump for the rioters’ actions.
According to the Special Counsel, the three conspiracies Trump is charged with in the indictment “culminated and converged” on January 6, when he “attempted to obstruct and prevent the congressional certification at the Capitol.” One way Trump did this was “to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.”
On January 6, Trump delivered an incendiary speech at the White House Ellipse. Citing Trump’s speech, and other actions, the Special Counsel argues pointedly:
“[T]he defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf.”
The government notes that Trump “encouraged the crowd to go to the Capitol throughout his speech” and argues that “many of [Trump’s] supporters responded to his direction and moved from his speech at the Ellipse to the Capitol.” Citing “testimony, video, and photographic evidence,” the government’s lawyers write that they will show at trial “that specific individuals who were at the Ellipse when the defendant exhorted them to ‘fight’ at the Capitol then violently attacked law enforcement and breached the Capitol.”
The government does not identify the “specific” January 6 rioters it has in mind, but there are many examples from which to choose. For instance, at least three of the January 6 rioters discussed above – Khater, Jenkins, and Nichols – attended the rally near the Ellipse before “violently” assaulting law enforcement officers.
The Special Counsel’s lawyers write that they “will prove at trial” that Trump “used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification.” In the days leading up to and on January 6, Trump repeatedly pressured Vice President Pence to either delay the joint session of Congress or directly overturn the election’s results. Pence refused. But Trump continued to dial up the pressure on Pence, including during his Ellipse speech. And it is clear that many of the January 6 rioters were listening. Based on Trump’s own rhetoric, they thought Pence had the ability to decide the election outcome himself.
Here, for example, is part of what Nichols said as he walked from the Ellipse to the Capitol: “I’m hearing that Pence just caved … I’m telling you if Pence caved, we’re gonna drag motherf-ers through the streets.”
Trump continued to pressure Pence even as the attack on the Capitol was well underway. The Special Counsel writes that Trump initially “refused to take action to calm the violence” and instead “sought to further stoke anger … against the Vice President.” In a separate filing, the government states that Trump sought “to exploit the violence” by “publicly attacking the Vice President 11 minutes after rioters had broken into the Capitol building; the Vice President had to be evacuated from the building one minute later.” That public attack came at 2:24 pm on January 6, when Trump tweeted that Pence “didn’t have the courage to do what should have been done.” The Special Counsel directly links this tweet to the mob’s subsequent actions, noting that “members of the crowd” chanted “Hang Mike Pence!,” “Where is Mike Pence? Bring him out!” and “Traitor Pence!”
The government’s filing indicates it will introduce at trial additional evidence along these lines. The bottom line: Although Trump has not been directly charged with inciting an insurrection under 18 U.S.C. § 2383, evidence concerning his behavior before, during and after the attack is key to the government’s case. The Special Counsel argues that these facts are “powerful and probative evidence of [Trump’s] motive and intent for each conspiracy and for the obstruction charge.”
Every time Trump lionizes the “January 6 Choir” or other January 6th rioters, he is simply helping the government build its case. These statements by the former president may effectively help show the jury – as well as the court of public opinion – that Trump had the requisite criminal intent in the actions he took to overturn a democratic election.
