Background: In this image from U.S. Capitol Police security video, released and annotated by the Justice Department in the Statement of Facts supporting an arrest warrant, Shane Jenkins, circled in red, is seen holding an object near the Lower West Terrace tunnel at the U.S. Capitol on Jan. 6, 2021, in Washington. Jenkins, a Texas man who attacked the U.S. Capitol with a metal tomahawk and is now the face of a website selling merchandise portraying jailed rioters as “political prisoners,” was sentenced on Friday, Oct. 6, 2023, to seven years behind bars. (Justice Department via AP)/ Inset: Former President Donald Trump speaks at the New Hampshire Federation of Republican Women Lilac Luncheon, June 27, 2023, in Concord, N.H. (AP Photo/Steven Senne, File)
Attorneys for Donald Trump asked U.S. District Judge Tanya Chutkan to remove prosecutors’ “inflammatory allegations” about the events of Jan. 6, 2021 from the criminal indictment against him and to stop “falsely” claiming that he is responsible for the events at the U.S. Capitol that day.
The 17-page reply in support of Trump’s earlier motion to strike thunders on, urging Chutkan to stop the “transparently partisan” special counsel from trying the former president for crimes “the grand jury never charged” since there was “not a shred of evidence” to support the claim he spurred violence that day.
In a separate filing, Trump reiterated his arguments in support of his motion to stay the case entirely on immunity grounds.
Filed overnight, that reply to prosecutors’ opposition to his motion to stay comes almost a month after Trump first broadly asked Chutkan to remove other references to the events of Jan. 6 by saying those mentions would prejudice the jury by forcing them to tie Trump to “independent actors at the Capitol on Jan. 6.”
Those discussions, Trump claims, are not relevant to charges that he criminally conspired to overturn the election or that he deprived anyone of their right to vote.
Trump played the peacemaker on Jan. 6, according to attorney John Lauro, who provided Chutkan with examples from Trump’s speech at the Ellipse in the overnight motion. Trump told supporters that they should “peacefully and patriotically make your voices heard” and “cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.”
The former president’s attorneys also argued that Trump called for a military presence at the Capitol three days before Jan. 6 but those efforts were stymied by Washington, D.C. Mayor Muriel Bowser.
On the matter of calling up the Guard: Trump contends that he did ask for assistance days in advance and former national security adviser to Mike Pence, Keith Kellogg, has claimed to congressional investigators on the Jan. 6 committee that Trump did request military assistance in Washington, D.C. three days before the attack.
To be clear on 6 Jan/NG. Pg 199 of my book, “On 3 Jan the President asked the Def Dept to deploy NG troops” into DC for J6 contingencies. OK for J6 Cmte to publicly release my full sworn testimony. Release Army Guard and DC Mayor J6 testimonies as well. Would be illuminating.
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— Keith Kellogg (@generalkellogg) July 27, 2022
Others in Trump’s circle, like his former Defense Department aide Kash Patel, have claimed that on the day of the riot itself, Trump ordered 10,000 to 20,000 troops to aid beleaguered police. No evidence has emerged to support this claim.
Trump’s attorneys do not mention Patel in their latest filing though they do cite former Defense Department Secretary Chris Miller as privy to the request three days before the Capitol riots.
When Miller testified under oath to the Jan. 6 committee he said Trump “never” gave a direct order to have the National Guard called up. But he has waffled on this question historically: a month before, Miller told anchors on Fox News that Trump had ordered the troops.
Special counsel has anticipated Trump’s reply and filings like it from Trump’s defense team for some time. In a stinging and lengthy opposition to Trump’s motion to dismiss filed only weeks ago, Smith described Trump’s crimes in the election subversion case as unique in history and that he “stands alone” for the “fraud and deceit” he perpetrated as a president in the run up to and on Jan. 6.
Trump should not be able to color his case or “rewrite it,” prosecutors wrote on Nov. 6, with “knowing lies.”
Just a week ago, as reported by NBC News, prosecutor Molly Gaston told the court that Trump was being evasive and merely trying once again to escape culpability for his actions.
The trial in Washington, D.C., features four charges against the former president, including allegations that he defrauded the U.S. and obstructed proceedings. It is still on track for a March 4 start date.
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