Updated November 17, 2023 at 1:14 PM ET
The federal election interference case against former President Donald Trump is coming into sharper focus, as prosecutors assert he is responsible for the violence at the Capitol on Jan. 6, 2021, and offer new clues about how they intend to prove it.
The case set for trial in Washington, D.C., in March accuses Trump of leading a conspiracy to obstruct the certification of the 2020 election and deprive millions of voters from having their ballots count. More than 140 law enforcement officers suffered injuries after a mob stormed the U.S. Capitol on Jan. 6, disrupting the peaceful transfer of power.
Lawyers for Trump asked the judge to remove mentions of what happened that day from the four-count felony indictment because they could "inflame" or prejudice the jury.
"[N]ot a shred of evidence suggests President Trump called for any violence or asked anyone to enter the Capitol unlawfully," Trump attorneys John Lauro and Todd Blanche wrote in a court filing this week.
Prosecutors say Trump should not be able to distance himself from the mayhem. They say evidence of the attack on the Capitol is "powerful and probative" about his motive and intent.
"Indeed, that day was the culmination of the defendant's criminal conspiracies to overturn the legitimate results of the presidential election, when the defendant directed a large and angry crowd — one that he had summoned to Washington, D.C., and fueled with knowingly false claims of election fraud — to the Capitol," wrote senior assistant special counsels Molly Gaston and Thomas Windom.
On Friday afternoon, U.S. District Judge Tanya Chutkan rejected Trump's bid to remove "inflammatory" allegations about Jan. 6 from the indictment. She said she never planned to show the jury a copy of the indictment, and that the jury selection process early next year should address how pretrial publicity, "including any generated by Defendant, has had on the impartiality of potential jurors."
The back and forth over how the events of Jan. 6 will play out in the case represents an early skirmish in one of the most important and closely watched prosecutions in American history.
For the first time, the Justice Department team said they are going to use video evidence to show Trump encouraged the crowd at the rally to go to the Capitol, starting 15 minutes into his speech. They said they will provide testimony, photos and geolocation evidence — essentially, cell phone pings — to show how specific Trump supporters listened to him, then went on to strong-arm police and breach the Capitol.
Prosecutors said they plan to use other testimony and videos to demonstrate how Trump deployed angry rioters as a "tool" in his pressure campaign against then-Vice President Mike Pence.
"I think that one of the most material things that he did during that time was his 2:24 p.m. tweet about Mike Pence, essentially arguing to all of his followers that Mike Pence did not have the courage to do what needed to be done and that was while he knew that the Capitol was under attack," said Georgetown University Law Center professor Mary McCord, who is closely following the case.
Members of the mob ultimately chanted "hang Mike Pence" and "traitor Pence" as he hid in fear for his life alongside family members and Secret Service agents on Capitol grounds. Trump watched the events on television and remained "indifferent" to Pence's evacuation, prosecutors said.
McCord, who once led the Justice Department's National Security Division, said it's likely Trump will file more court papers as the trial looms to try to bar prosecutors from introducing specific pieces of evidence from Jan. 6.
Indeed, Lauro and Blanche signaled in a footnote this week they would seek to prevent jurors from hearing about acts of "extraordinary violent and destructive" behavior. The final decisions on evidentiary issues will be up to Judge Chutkan.
Trump's lawyers said the former president called for the rally crowd to be "peaceful and patriotic." They asserted that most of the crowd at the rally on Jan. 6 did behave peacefully.
But in their own filing, prosecutors said Trump continued to embrace members of the mob, including rioters charged with violence against law enforcement and detained pending trial in the D.C. jail. Trump has said on the campaign trail that he is considering pardons for people convicted of crimes related to Jan. 6.
"The defendant's decision to rally behind January 6 rioters and their cause is relevant to the jury's determination of whether he intended the actions at the Capitol that day," Gaston and Windom wrote.
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