Judge Reggie Walton said that having Trump and others close to him testify would not add to the defense’s planned arguments that point to Trump and others as having urged their supporters to go to the Capitol.
Walton said during the hearing that he “just (didn’t) see what more you get having them come into court to testify” compared to playing videos of what Trump and others said at a rally that day before the attack.
“I don’t know what that adds to his mental state” as a defense, the judge told lawyers for Dustin Thompson — whom prosecutors say entered the Capitol during the riot, stole a coat rack and fled from police officers.
A Justice Department prosecutor agreed with Walton during the hearing.
Throughout many of the hundreds of January 6 proceedings, federal criminal defendants have tried to shift or share blame with Trump. Judges in the Washington, DC, US District Court have repeatedly lambasted politicians who had called for overturning the election and said they share some of the blame, but they have still sentenced defendants for their individual roles in the riot.
The judges must now 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 in the January 6 cases are set to begin at the end of next month.
An attorney for Thompson 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 request prompted the conversation Wednesday about whether Trump and his associates could become witnesses.
During the hearing, Thompson’s attorney, Samuel Shamansky, said that he was not arguing with the Department of Justice on what Thompson did that day but “the question is how and why he gets there.” He said that rioters were “whipped up into a frenzy” by Trump and others.
Other defendants in the Capitol breach case have used similar arguments, saying that Trump and others at the January 6 rally deserve some blame for the events that transpired at the Capitol.
In another case headed to trial, the DOJ 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.
