‘TRUMP SAID TO DO SO’: ACCOUNTS OF RIOTERS WHO SAY THE PRESIDENT SPURRED THEM TO RUSH THE CAPITOL COULD BE PIVOTAL TESTIMONY

 The Washington Post 17 January 2021

© John Minchillo/AP Trump supporters gather for a rally on Jan. 6 before marching on the Capitol.

A man from Kentucky told the FBI that he and his cousin began marching toward the U.S. Capitol Dec. 6 because “President Trump said to do so.” Chanting “Stop the steal,” the two men tramped through the building and snapped a photo of themselves with their middle fingers raised, according to court documents.

A video clip of another group of rioters mobbing the steps of the Capitol caught one man screaming at a police officer: “We were invited here! We were invited by the president of the United States!”

A retired firefighter from Pennsylvania who has been charged with throwing a fire extinguisher at police officers felt he was “instructed” to go to the Capitol by the president, a tipster told the FBI, according to court documents.

The accounts of people who said they were inspired by the president to take part in the melee inside the Capitol vividly show the impact of Trump’s months-long attack on the integrity of the 2020 election and his exhortations to supporters to “fight” the results.

Some have said they felt called to Washington by Trump and his false message that the election had been stolen, as well as by his efforts to pressure Congress and Vice President Pence to overturn the result.

But others drew an even more direct link — telling the FBI or news organizations that they headed to the Capitol on what they believed were direct orders from the president issued at a rally that day,

While legal experts are split on whether Trump could face criminal liability for his role in the events of Jan. 6, testimony from rioters who felt directed to take part in illegal acts by his speech could inform a decision by prosecutors about whether to attempt to build a case. Short of that, the testimony from rioters is likely to be cited in Trump’s upcoming impeachment trial in the Senate and could become evidence should people injured in the Capitol attack seek to file lawsuits against Trump.

Disturbing details of what happened inside the building have already emerged in court documents — including one witness who told the FBI that the rioters intended to kill any member of Congress they encountered. Officials have said they are still investigating whether the siege was planned and whether those involved intended to take hostages or otherwise harm elected leaders.

[How the rioters who stormed the Capitol came dangerously close to Pence]

Some accused of taking part in the mayhem may be invoking the president as a way to duck blame for their own actions. Already, several rioters charged with crimes have said they hope Trump will pardon them before he leaves office since they believed they were following his instructions.

Jenna Ryan, a real estate agent from Dallas who has been charged with illegally entering the building, appeared on local television Friday to beg Trump for clemency.

“I thought I was following my president,” she said. “I thought I was following what we were called to do. . . . He asked us to fly there. He asked us to be there. So I was doing what he asked us to do.”

Trump’s call to action to his supporters came after he had already tried and failed to overturn the election results in the courts and by pressuring Republican state legislators and GOP election officials in swing states that backed President-elect Joe Biden.

By December, Trump had turned his focus to the upcoming joint session of Congress on Jan. 6, when lawmakers were set to count the electoral college votes and formalize Biden’s win.

On multiple occasions, he urged his supporters to come to Washington and to apply public pressure on Congress to change the election results.

“Big protest in D.C. on January 6th. Be there, will be wild!” he tweeted on Dec. 19.

“The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!” he wrote on New Year’s Day.68

On the morning of Jan. 6, as Congress prepared to convene in the Capitol, Trump’s son Donald Trump Jr. delivered a fiery speech to the thousands of Trump supporters assembled on the Ellipse. Trump’s personal attorney, Rudolph W. Giuliani, called for “trial by combat.”

In his address to the crowd, Trump did not overtly call for them to try to enter the building or commit violence. But he emphasized the need for strength and repeatedly called for the crowd to fight on his behalf.

“Our country has had enough,” he said. “We will not take it anymore, and that’s what this is all about. To use a favourite term that all of you people really came up with, we will stop the steal.”

He falsely claimed that “all Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people.” And he said that if Pence allowed the vote to move forward, Biden would become president.

“We’re just not going to let that happen,” he said.

As the crowd periodically chanted, “Fight for Trump,” he continued, “So we are going to walk down Pennsylvania Avenue — I love Pennsylvania Avenue — and we are going to the Capitol.”

Trump, in fact, returned to the White House. But thousands of his supporters turned and began marching toward the Capitol, where lawmakers were just starting to meet in joint session.

[Inside the Capitol siege: How barricaded lawmakers and aides sounded urgent pleas for help as police lost control]

In the crowd was Trump fan Robert L. Bauer, who later told an FBI agent that he had driven from Kentucky with his wife to join his cousin Edward Hemenway for the rally.

According to court documents, Bauer said the three started moving with a crowd toward the building after hearing Trump tell rally participants to march down Pennsylvania Avenue to the Capitol.

Bauer’s wife peeled off, but he and Hemenway both told the FBI they entered the building, where they encountered a police officer, who grabbed Bauer’s hand and told him: “It’s your house now.” Bauer told the FBI that he believed the police officer was acting out of fear. Both men have been charged with crimes related to the riot.

© Win McNamee/Getty Images A pro-Trump mob confronts U.S. Capitol Police officers during the riot.

Also in the mob was Robert Lee Sanford Jr., 55, a recently retired firefighter from Chester, Pa.

A tipster told the FBI that Sanford said he travelled on a bus with a group to Washington, according to court documents. “The group had gone to the White House and listened to President Donald J. Trump’s speech and then had followed the President’s instructions and gone to the Capitol,” an FBI agent wrote in an affidavit.

Investigators allege Sanford can be seen in video footage hurling a fire extinguisher at a group of police officers on the West Terrace of the Capitol. The extinguisher struck one officer in the head, then ricocheted and hit two other officers — one of whom was not wearing a helmet.

Sanford has been charged with knowingly entering a restricted building, disorderly conduct on the Capitol grounds and assaulting an officer.

In an interview, Sanford’s attorney, Enrique A. Latoison, said Sanford is not part of any extremist group but was caught up in the moment — and that Trump bore responsibility.

“You have a 55-year-old man, retired from firefighting for 26 years. He’s never been arrested. A family man with three kids, law-abiding guy who barbecues and has a nice smoker. He doesn’t just get up and say, ‘I am going to go and get arrested, I’m going to go to the Capitol,’ ” Latoison said, adding that Sanford is remorseful for his actions.

“Trump and his allies encouraged people to run down to the Capitol building — none of them were out front, leading anybody,” he said. “They told everyone else to go there, and then went home.”

The day after the riot, the brother-in-law of Roseanne Boyland, 34, one of four rioters who died that day, told reporters he also blamed Trump for the events.

“I’ve never tried to be a political person, but it’s my own personal belief that the president’s words incited a riot that killed four of his biggest fans last night,” Justin Cave said.

Across the Capitol complex, thousands of people wearing Trump gear, carrying banners bearing his name and wearing hats with his slogan, “Make America Great Again,” clashed with police, broke windows and rampaged through congressional offices. Some in the crowd chanted, “Hang Mike Pence.”

Larry Rendell Brock, a retired Air Force lieutenant colonel from Dallas who was photographed holding zip-tie handcuffs and wearing a helmet in the well of the Senate, cited the president’s rhetoric in a series of Facebook posts that have been excerpted in court documents related to his charges.

“This is not a President that sounds like he is giving up on the White House,” he wrote on Jan. 5, the day before the riot. “I truly believe that if we let them complete the steal we will never have a free election again. I really believe we are going to take back what they did on November 3.”

Brock’s lawyer did not respond to requests for comment.

In court filings charging Nicholas Ochs, the founder of the Hawaii chapter of the extremist group the Proud Boys, with unlawful entry into a restricted building, an FBI agent wrote that the group “has been vocal in calling for action over the false claims that President Trump lost the election due to widespread voter fraud. Some members have advocated for violent action to achieve these end.”

Ochs’s attorney, Myles Briener, said Ochs had no criminal record and was holding journalist credentials on Jan. 6. He said Ochs looks forward to his day in court.

Court documents for another alleged member of the Proud Boys charged with storming the Capitol, Daniel Goodwyn, included a tweet Goodwyn posted on Nov. 7, days after Biden’s victory.

“Stand back and stand by!” Goodwyn wrote, quoting Trump’s controversial response to a question during a presidential debate with Biden about whether he would condemn the extremist group.

Goodwyn added: “Await orders from our Commander in Chief. #StopTheSteal!”

While the president’s claims have been cited various times in court documents, legal experts said prosecutors may be wary of attempting to charge Trump with criminal incitement. Such a crime can be difficult to prove because it requires showing that speech that would normally be protected under the Constitution has crossed a line into criminal activity.

The day after the riot, acting U.S. attorney Michael Sherwin of Washington told reporters that investigators might examine incendiary statements by the president and other speakers at his rally.

“Yes, we are looking at all actors here, not only the people that went into the building, but . . . were there others that maybe assisted or facilitated or played some ancillary role in this,” Sherwin said.

The next day, his deputy, Kenneth C. Kohl, appeared to back away from those comments, telling reporters: “We don’t expect any charges of that nature.”

But Justice Department officials have said the case is complex and the investigation ongoing.

[Off-duty police were part of the Capitol mob. Now police are turning in their own.]

In a landmark 1969 case, the Supreme Court held that speech could only be criminal if it could be proved to be “directed to inciting or producing imminent lawless action.” In that case, the court overturned the conviction of a Ku Klux Klan member who delivered a racist and anti-Semitic speech to Klan members gathered in a field in Ohio, finding that the speech’s vague call for “revengeance” and an announcement of a future march on Washington were not calls for immediate criminal behaviour.

Eugene Volokh, a constitutional law professor at UCLA School of Law, said the precedent has generally protected rousing or fiery political speech that does not specifically call for violence — even if some people who hear it might be inspired to break the law.

In the case of Trump’s speech, Volokh said he did not believe it would be possible to prove beyond a reasonable doubt that Trump intended to direct the crowd to commit illegal acts.

He noted that Trump did not ask people to break into the Capitol or to assault police officers but instead called for them to “march” to the Capitol — an act of protest protected in the Constitution. At one point, Trump specifically said the people should march “peacefully.”

“One reason why we have a high bar for incitement is because it applies to everyone. It doesn’t just apply to the president. It applies to organizers, labour activists, private citizens. It’s important to keep that bar high,” he said.

But Leonard M. Niehoff, a First Amendment expert at the University of Michigan Law School, said the courts have held that potentially inciting speech must be examined in context.

In this case, Trump called for his supporters not just to march to the Capitol but to “stop the steal,” to act with strength and to “fight like hell.” He said the only way protesters would have been able to stop the electoral college process was through violence.

“The clear instruction was you are going to the Capitol to stop the steal. You are going there to show strength. You are going there to take the country back and not to let this happen,” Niehoff said. “Is it conceivable that you would listen to that speech and say to yourself, ‘All the president wants us to do is go to the Capitol and then go home?’ I just don’t think so.”

The two scholars agreed, however, the public should examine whether the president’s words and actions were immoral, not just whether they broke the law.

Volokh said Trump’s actions may amount more to a “dereliction of duty” than a crime — a failure to protect the public that might be better addressed through the impeachment process underway in Congress.

Niehoff added, “Whether he behaved properly, as an ethical matter, that’s not something the law will answer.”