A federal judge is signaling that she’s not a big fan of an increasingly common defense emerging from lawyers for those charged in the Capitol Riot: President Donald Trump made me do it.
At a bail hearing Tuesday for a Proud Boy member from Kansas accused of storming the Capitol, Chief U.S. District Court Judge Beryl Howell said she was dubious about the legal merit of the effort to shift blame toward the former president and his inflammatory rhetoric about the election.
“This purported defense, if recognized, would undermine the rule of law,” Howell said during the videoconference court session for William Chrestman, 47. “Then, just like a king or a dictator, the president could dictate what would be legal and what isn’t in this country and that is not how we operate here.”
Lawyers for Chrestman pointed to several Supreme Court cases that they said indicated that guidance from government officials can sometimes be a defense against criminal charges. They said Trump’s encouragement amounted to that kind of all-clear for those who forced their way into the Capitol during the counting of Electoral College votes on Jan. 6.
“Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did,” Chrestman’s lawyers, Kirk Redmond and Chekasha Ramsey, wrote in a court filing last week.
The defense attorneys also cited Senate Minority Leader Mitch McConnell’s statement following Trump’s impeachment trial that those who besieged the Capitol “believed they were acting on the wishes and instructions of their President.”
Howell called the defense argument “quite interesting,” but it quickly became clear she was deeply skeptical of its legal merit. Raising Trump’s famous comment during the 2016 campaign that he could shoot someone on 5th Avenue in New York City and get away with it, she asked the defense lawyers to appreciate the implications of their position.
“If President Trump ordered or instructed a member of the Proud Boys [to] go off and murder somebody and someone went off and did that, it follows that … would immunize them from liability for that criminal act? … In effect, isn’t that what your argument is saying?” the judge asked Redmond.
“I don’t think so. … It’s not going to extend to every defendant,” Redmond replied.
Howell said a 1965 Supreme Court case that Chrestman’s team cited, Cox v. Louisiana, involved an issue of where protesters could stand on a sidewalk and nothing akin to shutting down a joint session of Congress. “In this case, I would say an instruction from a federal official to disrupt a constitutionally mandated function is far different from a traffic kind of administrative decision,” the judge said.
Chrestman faces a series of felony charges, including conspiracy to interfere with police during civil disorder and to obstruct an official proceeding. He’s also charged with threatening police while carrying a dangerous weapon. Prosecutors say he wielded an axe handle during the riot, using it to block emergency shutters that police were trying to close to protect themselves. They also say he urged the crowd to prevent officers from arresting one of the protesters.
Last week, a federal magistrate judge in Kansas City, Kan., ordered Chrestman’s release to home detention to await trial. On Sunday, however, Howell granted the government’s request to stay that release order while she considered the issue.
Howell has ruled for the release of two defendants whom the government wanted detained, while temporarily blocking a series of releases by magistrates across the country and eventually ordering that some of those people be held until their trials or other resolution of their cases.
At the conclusion of Tuesday’s hearing, Howell said it was evident to her that Chrestman was in the category that he should not be released.
“He cannot be trusted to abide by any condition for release the court might impose instead of pretrial detention,” the judge said. “I don’t find this case to be a close call at all.”
Howell said the fact that Chrestman came to D.C. with “a gas mask, a hard helmet and a club” strongly suggested he was expecting a violent confrontation. She also said his connection to the Proud Boys group meant he was dangerous.
“You call it an organization. I call it a gang,” the judge said to Redmond. “The fact that [Chrestman] continues to be a member of the Proud Boys is danger enough, isn’t it?”
At numerous bail hearings in the Capitol-riot-related cases now flooding the court just blocks from the site of the Jan. 6 violence, the chief judge has sometimes offered vivid condemnations of the attack and deplored how the episode has disrupted life in the city and the country.
That was the case again Tuesday as Howell lamented the security fencing and the deployment of National Guard troops, while observing that Chrestman’s trip to Washington last month was not taken as an ordinary tourist.
“He was not planning on looking at the sites, which are now totally off limits to citizens living in this city, surrounded by barbed wire,” the judge said. “He wasn’t coming to stroll around the reflecting pool and looking at the sites and the monuments.”
Howell — who served for years as a lawyer for the Senate Judiciary Committee before being appointed to the bench by President Barack Obama in 2010 — suggested that she was eager to see those security eyesores removed but wasn’t sure when or if it will be safe to do so.
“People who want to come visit D.C., Americans who want to come visit their Capitol, are they ever going to able to walk where we used to walk freely?” she asked. “It’s unclear, shockingly unclear.”