Judge questions Jan. 6 defense strategy of calling Trump to stand

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By Holmes Lybrand, Andrew Millman and Katelyn Polantz, CNN

A federal judge appeared unconvinced on Wednesday that Donald Trump should be allowed to testify in the trial of a U.S. Capitol riot defendant who argues the former president could be a useful witness.

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

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

A Justice Department prosecutor agreed with Walton during the hearing.

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

Yet now judges must face the possibility that defendants will attempt to use Trump’s gravity — and strong political condemnation of him in the nation’s capital — before juries.

Federal trials against the alleged Jan. 6 rioters are scheduled to begin late next month.

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

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

In another case to go to trial, the Justice Department pleaded to block the possible defense Trump authorized for the attack on the Capitol.

The judge handling the case – for riot defendant Aaron Mostofsky – has yet to decide whether it will be allowed.

A third court judge, Beryl Howell, has already rejected the legal argument that a defendant could have been framed in the crime because of Trump’s Jan. 6 words, prosecutors noted. The president does not have the power to authorize crime and override laws at will, Howell wrote nearly a year ago when she decided to keep a Jan. 6 defendant in jail pending his trial.

Walton said it more bluntly on Wednesday.

“Just because the pope says so” doesn’t mean a Catholic can commit a crime, he told the court. “I am not convinced.”

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

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